Public Participation in Environmental Decision Making

Public Participation in EnvironmentalDecision MakingP. LEELAKRISHNAN*

In the present era of rapid development in science andtechnology and consequent commercial and industrial growth, theenvironment is repeatedly violated with scant regard to ecologicalbalance. In the mounting violations of the environment what isat stake is the well-being of the people. Regulatory processes ofthe State for environmental protection have to reach new dimen-sions in this context.

Many a sermon on public awareness on the extent of pol-lution and the need for a clean environment is being made. Thepress, radio, television and other media highlight the evils of en-vironmental pollution and try to create an environmental con-science among the public. Once people become environmentallyconscious and mass movement gather momentum, law cannotlag behind. Clear and effective provisions providing for publicparticipation in environmental decision making will necessarilyhave to be incorporated in legislation.

FORMS OF PUBLIC PARTICIPATION

Public participation in environmental decision making pro-cess can take a variety of forms. The public can form pressuregroups exerting influence on government for making properdecision. These groups can conduct public interest litigation witha view to preserving environmental quality. Members of thepublic can act as members of advisory councils and agencies

M.A. (Aligarh), M.L. (Kerala), Ph.D. (London); Professor andHead, Department of Law, University of Cochin.

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constituted for the protection of the environment. They can evenact as enforcement personnel. Last but not the least, membersof the public can become spokesmen of environmental interestsin inquiries held prior to making a decision impacting on theenvironment.

BENEFITS OF PUBLIC PARTICIPATION

In order to exercise democratic rights in a meaningful man-ner, citizens should have access to information about the pro-posed action of government and its agencies. Apart from thisaspect, public participation has advantages of its own.

In contra-distinction to the heterogeneous character of thediffuse interests of the general public, industrial and commercialundertakings have a concentrated stake in many environmentaldecisions. These forces of industry and commerce, on whichthere is too much government reliance for various reasons, havevast resources at their disposal. More often than not they areable to present their case in a persuasive manner and to pressfor its acceptance. The compulsory need to hear the membersof the public before a decision is taken will go a long way inchecking and alleviating their influence. It thus bridges the gapcreated by the unequal positions between the members of thepublic and the mighty industrial leviathans. Moreover, activepublic participation will help the industry and the public knoweach other's view and improve their mutual relations.

Consultation with the public streamlines the work of, andenergises, environmental decision making agencies. In otherwords, it helps to improve the administrative process by enablingthe agency to consider all aspects of environmental questions andto make an objective decision. Public participation facilitatespresentation of alternative views otherwise not presented andallows the agency to go deep and thorough in their analysis,

1. For detailed and illuminating discussion on this aspect, see E.Gellhorn, "Public Participation in Administrative Proceedings", 81Yale L.J. 359 (1971), at pp. 360-380 and Raj Anand and Ian G.Scott, "Financing Public Participation in Environmental Decision-making", 60 Can. Bar. Rev. 81 (1982), at pp. 84-96.

P. LEELAXRISHNAN 189

with a close look into the costs and benefits, of the environ-mental protection measures proposed. Instead of bringing delayand procrastination into the decision making process, publicparticipation definitely eases the pitch for quick, and at the sametime proper, decisions. This is because the agency easily gets atthe real issues after hearing diverse views and opinions.

Public participation renders reasonable and effective oppor-tunity to all the interests, affected or likely to be affected, topresent their case. It enhances public confidence in decisionmaking processes and ensures public acceptance of the decision.The process makes it possible for an optimum contribution bythe public to the decision making and leads to high qualitydecisions for a clean human environment. Consultation with thepublic helps bringing to light the inadequacies in legislative andregulatory guidelines and paves the way for sugggesting reformsto the decision making process itself.

FOREIGN EXPERIENCE

Countries like the United States, Britain and the U.S.S.R.give great significance to the concept of public participation inthe area of environmental protection. The form and methodo-logy of participation may vary; but these countries have acceptedthe principle that the public should be involved in the diverseprocesses having environmental implication.

(i) The U.S. Strategy

One of the most exhilarating exercises in active public in-volvement can be found in the environmental decision makingprocess in the United States. The National Environmental PolicyAct 1969, known as NEPA, provides that before they take up`major federal actions significantly affecting the environment' allFederal Agencies should prepare an environmental impact state-ment. 2 The EIS, as it is popularly called, contains, in additionto 'the environmental impact of the proposed action', otherdetails such as 'any adverse environmental effects which cannot

2. S. 102(2) (c), National Environmental Policy Act 1969.

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be avoided should the proposals be implemented, alternativesto the proposed action, the relationship between local short termuses of man's environment and the maintenance and enhance-ment of long term productivity and any irreversible and irretri-evable commitments of resources which would be involved inthe proposed action should it be implemented.' The words`federal actions' include any project 'involving a federal lease,permit, license, certificate, or other entitlement for use' and thusthe impact process applies even to private action needing theserequirements.'

EIS is an exercise in information communication. 4 Thestatement is prepared after consultation with experts, Stateagencies, other specialists and the general public. This providesthe public with an opportunity to acquaint themselves with theenvironmental consequences of the proposed action. Publicationof the EIS affords the public an opportunity to comprehend theenvironmental impact of the proposed project. Further, they canverify the genuineness of the decision making process and assessthe rationale behind the decision. 5 Within a couple of years afterthe enactment of NEPA, the United States had converted the en-vironmental impact assessment into the most powerful weaponin the hands of the public in their war in defending the environ-ment. The Presidential Order in 1970 exhorted the agencies todevelop impact procedures in such a manner as to ensure timelypublic information, elicit views of interested parties and providefor public hearing. 6 Next year the guidelines issued by theCouncil on Environmental Quality fanned the flame. It laid

1971 Council on Environmental Quality guidelines. S. 5(a)(ii) notedthat major federal action included any project and continuing acti-vities "involving a federal lease, permit, license, certificate or otherentitlement for use." Thus any private action impacting on environ-ment and requiring a federal lease, permit, etc., should be precededby an EIS. For the text of the guidelines, see, infra, n. 7 at p. 12.

J. F. Garner, "Environmental Impact Statement in U.S. and U.K."[1979] J.P.L. 142 at p. 143.

W. H. Rodgers, Hand Book of Environmental Law (1977), p. 730.

Executive Order 1514 (March 5, 1970) 35 F.R. 4747. For the textsee E.L.R. (Statutes and Regulations), 45003. The order was issuedin furtherance of the purpose and policy of NEPA.

P. LEELAKRISHNAN 191 •

down the specified requirement that the draft statement be madeavailable to the public for a minimum period of ninety days andthe final statement for thirty days before the agency acts.' En-couraged by these moves some States have gone ahead in incor-porating the impact process in their laws. 8 The process, whenapplied to a broad range of activities, facilitates popular partici-pation on large scale, bringing substantial benefits on individualprojects and agency decision making.9

The marked expansion of citizen's right to participate inadministrative process in the United States may be attributableto two pre-existing general laws - the Administrative ProcedureAct 1946 which recognises the role of public participation bothin adjudicatory and rule-making processes and the Freedom ofInformation Act 1966 which lays down that all the relevantdata must be made available to the public. Recent enlightenedopinion is that public hearing is a must for all environmentaldecisions and that environmental questions have to be investi-gated not in a 'star chamber' style but in the daylight ofpublic scrutiny and deliberations. Whether it relates to standardfixing in air quality") or water quality, H highway location or

Oscar S. Gray, Environmental Law—Cases and Materials (1973),p. 15.For instance, the State of California has passed a law—Environ-mental Quality Act 1970—patterned on NEPA. In a notable deci-sion, Friends of Mammoth v. Board of Supervisors of Mono County,[2 E.L.R. 20673 (1972)] the California Supreme Court held thatunder California's Environmental Quality Act a prior impact studyis necessary before a private project is approved. This was a casein which a private developer who proposed to build a recreationalvillage with living units and shopping facilities is held not entitledto receive a conditional permit until the environmental report iscomplete.Fifth Annual Report of the Council on Environmental Quality,Ch. 4. "The National Environmental Policy Act", 5 I.L.R. 50005 atp. 50018.For setting ambient standards under the Federal Air Quality Act1967, the States hold public hearings. See James E. !Crier, Environ-mental Law and Policy (1971), p. 309.It is said that Federal Water Quality Administration (FWQA) hasinformation officers "providing public with full information on efforts

(f. n. contd.)


design," general land use planning" or to the question whethera particular drug could cause cancer to laboratory animals' 4 apublic inquiry is necessary.

(ii) The British Model.

The Control of Pollution Act 1974, a comprehensive legis-lation in Britain, emphasizes the need for public participation inpollution control measures. The Act is designed to control wastedisposal, pollutoin of water, noise and pollution of the atmosphere.Under the provisions of the Act, the Secretary of State can holda local inquiry with a view to preventing, or dealing with, pol-lution or noise at any place.° It is true that whether or not aninquiry is to be held is a question of governmental discretion.But when the inquiry is held the public get an opportunity toparticipate actively in the process. The law provides also for con-sultation with members of the public when waste disposal plansare prepared.' 6

The Control of Pollution Act has introduced significantrights of public participation in the provisions relating to controlof water pollution. The consent administration for the dischargeof pollutant to a stream or to the sea is conditioned by appro-priate procedural safeguards. I7 Notice of consent application is

to clean up the Nation's Waterways even if such disclosures maysometimes be controversial". Status Report by Federal Water QualityAdministration, "Water Quality and the Environment" (1970),Edward H. Robin and Mortimer D. Schwartz (Eds.), The PollutionCrisis (1972), Vol. 11, p. 93.U.S. Department of Transportation, Federal Highway Administra-tion, id., pp. 353, 354.Report of the Public Land Law Review Commission (1970), id.,p. 331.Environmental Protection Agency (EPA) held secret science courtsin which lawyers of drug manufacturing companies appeared. It issaid that such clandestine hearings without public participation willmake the EPA lose all its credibility. Ross Sander, "EPA's SecretScience Courts", Environment, Jan-Feb. 1982, pp. 4, 5.Control of Pollution Act 1974, S. 96.Id., S. 2(3)(a)(iv) and (b)(i) and (ii).Id., S. 36.

P, LEELAKRISHNAN 193

to be published not only in the London Gazette but also in alocal news paper. In deciding whether or not to grant consent,the water authority has to consider written representations made,by any person, within six weeks of the publication of the notice.This enables voluntary organisations for environmental protec-tion and even individuals with environmental conscience, toobject the consent application and thus to involve themselvesactively in the environmental decision making process." Theconditions under which the consent is granted are recorded ina register . which is open to the public. It is the duty of the waterauthority to afford the members of the public reasonable faci-lities for obtaining copies of entries in the register.'9

Public inquiry 20 is a common phenomenon in other environ-mental protection legislation in Britain. The laws on publichealth, housing and town planning are examples. Schemes orplans proposed, either by the Minister himself or by a local autho-fify, are subjected to public scrutiny in an inquiry. Inspectorshear the objections and make a report; 21 the Minister decides.In most cases the inspector's report is published giving furtheropportunity to the public to have a look at the soundness of thescheme or plan.

The environmental impact process of the U.S. type hasdemonstrated broad international appea1 22 and many countries"

Bates, "Public Participation Under Control of Pollution Act 1974",[1979] J.P.L. 205 at p. 209.Control of Pollution Act 1974, S. 41(2).

iFor a discussion on inquiries, see Wade, Administrative La (1982),Ch. 24.Recently, a suggestion is made to substitute the existing formalinquiries by inspector with informal hearings headed by suitablyindependent chairman who can "take an active role by elucidatingmatters which the public were having difficulty and bringing hisown interpretation of the facts as a contribution to the discussion".Martin Jewel.."Is There an Alternative to the Public Inquiry", [1979]J.P.L. 216 at p. 231.See Fifth Annual Report of the Council on Environmental Quality,op. cit., 50015.Canada, Columbia, Japan, New Zealand, the Soviet Union, Australia,

• (f. n. contd.)


have evinced keen interest in having an analogous technique.Britain is yet to incorporate in its law environmental impactprocesses of the U.S. type signifying active public participation.There is a strong plea for such an incorporation. 24 It is true thatthe Government Departments or industry may make, on theirown, an impact assessment of a new project. Carried out secretlythis exercise does not get the benefit of public scrutiny andcomment. Secrecy in these matters is not in the public interest.The Royal Commission on Environmental Pollution was advo-cating for fullest possible disclosure 25 and for formation of amachinery through which the local people could express theirviews and help evolving a sound decision.26

(iii) The Soviet Style

Unlike their U.S. counterparts, citizen organisations in theU.S.S.R. do not involve themselves in litigation against govern-mental projects. But acting within the system they strive for secur-ing more effective environmental protection measures. Nicholas C.Yost, a member of the U.S. delegation to study Soviet environ-mental protection processes, enumerated the roles of citizengroup in the U.S.S.R. as follows:

"The activities of the Soviet environmental groups includecomments on draft legislation, inspections to assist environ-mental law enforcement, propaganda, beautification, a role

the German Democratic Republic, the Federal Republic of Germany,Sweden and France. See Robert E. Lutz, "Directions of Environ-mental Law in the International System: An Assessment of Tasks andChallenges for Lawyers", Stephen C. McCaffrey and Robert E. Lutz,(Eds.) Environmental Pollution and Individual Rights: An Inter-national Symposium, (1978), p. 192.J. F. Garner, op. cit., p. 144; Gerry Bates, "Environmental ImpactAssessment—the Australian Experience," [1979] J.P.L. 731 at p. 734.

Royal Commission on Environmental Pollution, Fourth Report,Pollution Control: Progress and Problems, Cmnd. 5780, p. 6 (1974).

Royal Commission on Environmental Pollution, Fifth Report, AirPollution Control: An Integrated Approach, Cmnd. 6371 para 202,p. 56 (1976). •

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in facility siting, and promoting the establishment of parksand the preservation of wild-life."27

Nature protection societies help the Government in enforc-ing environmental laws by making surprise inspection of pollut-ing factories, taking samples of air and water and getting themanalysed in Government laboratories. 28 They do have the samelegal immunities and legal protection as the Government inspec-tors have. Approval by the nature protection society in thelocality is a condition precedent for facility siting. Governmentturns down projects not approved by nature protection societies.This is a revolutionary technique of public participation inenvironmental decision making. 29 Obviously it is a step aheadeven of the attractive U.S. scheme of impact assessment process.

INDIAN LAW

Does Indian Law recognise the significance of public parti-cipation? Does it provide for public participation in the variousadministrative processes having an impact on the environment?

The Water (Prevention and Control of Pollution) Act1974 30 and Air (Prevention and Control of Pollution) Act1981 31 are the most notable laws designed to protect the environ-ment. Both these laws are framed exclusively to protect theenvironment more or less on identical terms. The provisions ofthe Water (Prevention and Control of. Pollution) Act 1974

"The Citizens' Role in Nature Protection in the U.S.S.R." 11 E.L.R.50051 (1981).

Ibid.

There are interesting examples where the Government did not acceptprojects disapproved by nature protection societies. A local societyrefused to approve a suburban brewery under consideration. TheMinistry of Food and Industry in Moscow opted to stand on theside of the society rather than to agree to the project. The citizengroup in Kazakhstan objected to the continuance of a fish factoryon a lake that affected birdlife. The Government readily ordered toclose down the factory, id. at 50054.

Central Act No. 6 of 1974. For the text, see A.I.R. 1974 (Acts) 58.

31. Central Act No. 14 of 1981. For the text, see A.I.R. 1981 (Acts) 196.


reveal the typical Indian approach to the concept of publicparticipation.

(i) Public Kept in the Dark

Members of the general public are the victims of pollution.Their interests have to be protected. It is with this view thatpollution control processes are to be designed. Surprisingly,Water (Prevention and Control of Pollution) law does notseem to lay emphasis on the principle of public participation.Previous consent of the State Board is necessary for bringinginto use any new or altered outlet for the discharge of sewage ortrade effluent or for making any new discharge of sewage ortrade effluent. Unlike the British law 32 which lays down publica-tion of the consent application, here in India there is no suchprocedure prescribed by the law. This means that the scheme doesnot envisage public participation. The people do not know whoapplies for consent. They do not know what kind of pollutantis discharged to their neighbourhood. They do not have a rightto ask for an inquiry. In considering the application for consentthe State Board may make an enquiry. The concerned provisionreads:

"The State Board may make such inquiry as it may deemfit in respect of the application for consent referred to insub-section ( 1 ) and in making any such inquiry shall followsuch procdure as may be prescribed."33

The wording makes one thing clear. The Board has com-plete discretion in the matter. It decides whether or not therebe an inquiry. It decides what the scope and nature of theinquiry shall be. True that the Board is compelled to follow theprocedure laid down in the Rules which usually do not referto any kind of public participation. The Kerala Rule 34 is anillustration. The only procedure laid down therein is that anofficer of the Board with or without assistants will be deputed

Supra, n. 17.Water (Prevention and Control of Pollution) Act 1974, S. 25(3).Kerala Water (Prevention and Control of Pollution) Rules, 1976,Rule 30. •

P. LEELAKRISHNAN 191

to visit the premises of the applicant. He verifies the particularsand information given by the applicant. On doing so no con-sultation need be made with members of the general public.What the officer can do is to ask the applicant to produce anysuch additional information as he may consider necessary for theinvestigation of the application. The whole provision is blissfullylacking in any mechanism wherein a member of the public oranybody other than the applicant is given an opportunity toparticipate in the investigation.

The people are kept in the dark throughout the processalthough the damage done to them. may be of intense degree.The industry may not, necessarily, disclose everything relevantto the officers of the State Board making the investigation. Theinspecting personnel may not always be in a position to act inaccordance with the interest of the public and in an objectivemanner. A provision for public scrutiny would have rationalisedthe process bringing relevant factors to the consideration of theinspecting personnel and the Board. Such built-in safeguards arewanting in the Indian Law.

(ii) EIS: Desideratum

The concept of environmental impact study still remainsalien to the Indian law. The Water Act does not envisage sucha study before the Board decides to grant or not to grant con-sent. The Board has no statutory obligation to examine theenvironmental impact either of a proposed or of an existing indu-strial activity causing pollution. India is at present in a stage oftaking off to newer heights of industrialisation and technologicalprogress. Environmental impact study plays a significant role instriking a proper balance between industrial growth on the onehand and the existence of a pollution free human life on theother. As seen early in the United States environmental impactprocess, public participation plays a momentous role. 35 It affordsthe general public an opportunity to present their views and tocomment on the environmental consequences otherwise notpointed out to the decision making agency.

35. Supra, nn. 4-9.


Access to Data: Imperative

The State Board can impose binding conditions on thenature and composition, temperature, volume and rate of dis-charge of the effluent when it grants consent. 36 The people arenot involved in the inquiry prior to the granting of consent orimposing of conditions. They are not given an opportunity tohave any say on the conditions imposed while granting consent.Even after the decision is taken and conditions are imposed themembers of the general public are not permitted to know thenature of the conditions.

The Board maintains a register containing the particularsof the conditions imposed. Access to the register of conditions isrestricted. The register can be inspected only by 'a personinterested in, or, affected by the outlet or effluent in the landor premises' or by another person authorised by such person."This restriction is unwarranted. Who will decide whether or not aparticular person desirous of inspecting the register is 'interested'?Conditions are imposed with a view to reducing ill-effects ofdischarge of effluents. There is no harm if the register is madeopen to the public. On the contrary access to the register ofconditions will enable the people to compare the conditions im-posed by the Board on identical cases and to impose an effec-tive check on any discrimination. The evil of pollution whichthe law seeks to remedy is very grave and of much public con-cern. The members of the general public are all interested indoing away with this evil. It is only proper and expedient toconfer on the public the right to scrutinize the conditions im-posed. It helps to bring to the attention of the Board the insuffi-ciency or unreasonableness of any conditions. Regulatory processin a democracy will be effective only when they are conditionedby meaningful standards of public participation and by un-restricted access of the public to data.

Declaration of Control Zones: Public Involvement

The power of the State Government to restrict the applica-tion of the Act to certain areas and to declare water pollution

Water (Prevention and Control of Pollution) Act 1974, S. 25(4).Id., S. 25(6).

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prevention and control areas is a significant one. 38 By implica-tion this includes the power to exclude any area from the appli-cation of the Act. No provision is made to consult the peoplebefore a control zone is declared. True that the State Board isconsulted or the declaration made on the recommendation of theBoard. For altering any such area notification in the officialgazette is necessary. Perhaps this signifies a limited public parti-cipation. It gives the public an opportunity to examine and bringto the notice of the Government whether any area which shouldhave been included is left out.

Prosecution by a Member of the Public

Control of pollution being a matter of interest not only tothe Board but also to the public in general a member of thepublic should have the right to see that the provisions of theAct are implemented properly. Unfortunately, the Water Actdoes not confer this right. A member of the public cannot lodgea complaint before the Court unless the Board permits him todo so. No Court shall take cognizance of any offence under theAct except on a complaint made by, or with the previous sanc-tion of, the State Board." There being no conflict of interestbetween the Board and the public, the position must be thatmembers of the public should be given the right to complainunder the Act even without the sanction of the Board. The rightof a member of the public to initiate prosecution should berecognised under the Act.

Appeal by a Member of the Public

The Act does not confer on a member of the public theright of appeal, against an order of the Board. Only a personaggrieved by an order of the State Board can file an appeal within30 days from the date on which the order is communicated tohim. 40 This provision in the Act means that a person who hassubmitted an application for consent and against whom the order

Id., S. 19.

Id., S. 49.

Id., S. 28.


is made alone can appeal against the order. The polluter or thepotential polluter has thus the right of appeal. But the generalpublic are denied the right. If the Board gives consent withoutany conditions in a case where the discharges made in pursuanceof such consent are likely to pollute water, the Act leaves thepublic with no remedy.

CONCLUSION

A comparative analysis of the Indian law with other lawsreveals one disappointing fact. In a potential area where themembers of the general public could have been actively involvedon a large scale, the Indian law totally fails to keep abreast ofthe modern trends in other countries. As was done in the UnitedStates, and in other countries that followed suit, India shouldadopt environmental impact processes, carried out in the open,in which the people get a fair and effective opportunity of contri-buting significantly to a sound and objective decision making.The need for open public inquiry is to be emphasized in thiscontext. Openness and fairness being the watch words of modernwelfare administration, people should have ready access to thedeliberations of the environmental protection agencies. This willhelp the authorities to make rational decisions. The register ofconditions under the pollution control laws should be kept opento the public without any restrictions. Members of the publicshould have the right to lodge prosecution in a court of law with-out the sanction of the pollution control agency. A provision grant-ing the public a right of appeal to a court or a higher authorityagainst the decision of an agency will enthuse proper administra-tion of the law designed to achieve environmental justice. In thedaylight of public scrutiny and participation, the imperfectionswhich dampen the pollution control activities will evaporate,fairness condition the mechanics of environmental decision makingand the human environment be rendered worth living.

Mode of Citation (19841 C.U.L.R.

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Public Participation in Environmental Decision Making