Nature’s Trust: Environmental Law for a New Ecological Age (click the link for a reference to the book) is my latest discovery on the frontier of research into how we are going to fix our environmental problems.
What this book shows with authority is how environmental law has failed us, and has no illusions that correcting this will be a tough political battle against the One Percent and the Dark Money network.
But what this book does do with scholarly precision and overwhelming documented research is what an absolute fraud the current pretense is that our regulatory framework is protecting us and the environment.
If I find the time, I would like to examine this book as I am currently doing in my blog Examining Dark Money, because this book is that good…but until then I wanted to share this one description that I found so remarkably accurate about the “Remote Public”, which is one of components of the regulatory framework that is supposedly working.
Some background: the author summarizes the legal basis for how the public is supposed to have input to environmental policy, then describes with uncanny accuracy why this is so unworkable in current times: quoting from pages 113-115:
Ultimately, the voting public represents a last bastion against a tyrannical power grab by one branch of government…But daunting logistical hurdles now stand in the way of meaningful citizen involvement.
Two federal statutes provide processes for public information and citizen input into regulatory decision making. The Administrative Procedure Act (APA) requires all federal agencies to publicize their proposed rules. The National Environmental Policy Act (NEPA) allows the public to comment on federal actions affecting the environment. … One problem involves the tendency of citizens to ignore the prospect of environmental harm until too late in the legal process….
Time presents another significant barrier to citizen participation. Making use of a public process, or lobbying the legislature, or even understanding the issue can devour an enormous amount of personal time….The sheer complexity generated by the agencies through the morass of acronyms and technical jargon…makes this difficult and tedious reading. …
…As many studies show, personal time in the United States has plummeted since the 1970s (when NEPA was enacted), and economic distress factors force many to work overtime or take on more than one job. This time scarcity sets entirely new game rules in civic involvement….
…On this playing field of [legal] process, industry easily outmatches the public…because the industries have “concentrated” interests in regulation, they devote the resources necessary to gaining favorable permit approvals. They pay lobbyists, consultants, and lawyers to game the process at every turn. Citizens who struggle to squeeze in time from a busy workday to show up at a meeting will often find paid industry representatives already sitting there.
To imagine that such a system could work well in the face of modern circumstances is little more than a fantasy. Yet [the regulatory] agencies routinely indulge this chimera in a way that prejudices the public. If people fail to show up en masse at a hearing or fail to comment on a proposal, decision makers deem the public silence as an indication of noninterest or general acquiescence on the issue. For all practical purposes, then, the public faces an unspoken default penalty — somewhat like a party to litigation who does not show up at a trial. While public processes remain a vital component of democracy, they scream out for practical reform to reflect these modern pitfalls.
The fact remains that, despite all of these existing public comment processes, nothing forces agencies to heed public opinion. … quite often, agencies pursue their proposed action even in face of substantial public opposition. Fully captured agencies use the public processes set up by environmental statutes as faux-processes to maintain the facade that they care to hear about citizen concerns.