Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning

82 Pages Posted: 28 Aug 2007  

James D Fine

Lawrence Berkeley National Laboratory

Dave Owen

University of California - Hastings College of the Law

Abstract

Many of our environmental laws create an unfortunate paradox. They mandate science-based planning, and that mandate often translates into a practical or legal requirement to use complex simulation models. These laws also contain provisions for public participation. When agencies engage in technical decision-making, however, and particularly when they use complex simulation models, the reasoning and risks underpinning decisions become difficult for public participants to understand and critique. As a result, legal mandates for science-based and participatory planning come into conflict. This conflict is inherent in many environmental statutes, and is acute in the State Implementation Plan (SIP) process required by the Clean Air Act. In this article, we explore the tension between public participation and modeling by focusing on the SIP development process and the limitations and resultant risks associated with decisions based on modeling. Drawing upon literature from the fields of air quality science and modeling, risk assessment and management, planning, law, and science and technology studies, and also upon interviews, we discuss the roots of the problem, exploring the origins of legal requirements for both public participation and modeling. We highlight the ways in which planning depends upon models and in which model use impedes public participation. We provide a retrospective case study of a particular SIP planning process—the 1994 development of the San Joaquin Valley ozone plan for California's SIP—to illustrate tensions between model-based planning and public participation. While we conclude that these tensions are somewhat unavoidable, we close with recommendations for ameliorating them without excluding public concerns or compromising the sophistication and integrity of science-led planning.

Keywords: Models, public participation, Clean Air Act, state implementation plan, risk, uncertainty, San Joaquin Valley

Suggested Citation

Fine, James D and Owen, Dave, Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning. Hastings Law Journal, Vol. 56, No. 5, 2005. Available at SSRN: https://ssrn.com/abstract=1009271

James D Fine

Lawrence Berkeley National Laboratory ( email )

1 Cyclotron Road
Berkeley, CA 94720
United States

Dave Owen (Contact Author)

University of California - Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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