This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.
Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. Despite overwhelming public support for increased government action on the environment, the Environmental Protection Agency’s workforce is shrinking, industry lobbyists increasingly regulate their former employers, and polluters face fewer and fewer inspections and criminal prosecutions. And while the majority of Americans believe climate change is an “urgent” problem the government needs to do “a lot” about, the Trump Administration proposes rules which will exacerbate greenhouse gas emissions, like its methane rollback plan.
It’s easy to feel powerless in the face of this delay and destruction. Petitions can be signed, protests can be attended, but at day’s end, those actions don’t seem to direct or decide environmental policy. Government officials do. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry.
There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.
When laws like the National Environmental Policy Act and the Clean Air Act were passed fifty years ago, they were supposed to create a regime of environmental protection that was uniquely and durably democratic. New tools like citizen suit provisions, environmental impact statements, and enhanced notice-and-comment procedures aimed to allow ordinary people to direct the course of environmental protection. The Environmental Protection Agency’s first chief said the regulator’s “new ethic” of “sharing . . . decision-making responsibilities” with the public. Citizens were expected to craft environmental policy using their rights to be heard, to sue, and to review information.
The trouble with these kinds of rights, as Daniel Wilf-Townsend noted in his recent post on civil procedure, is that they only work when ordinary people have the capacity to exercise them. Such was the case during modern environmental law’s conception, which occurred in the wake of the “Great Compression” in the national income distribution. But in our time, where power is increasingly concentrated among the few, most citizens lack the resources to use the tools of environmental law. Their rights are instead wielded by industry groups and beleaguered environmental nonprofits, locked in a battle to influence regulators – a fight where access and brute force, rather than the public interest, often wins the day. For example, during the EPA’s attempt regulate air toxics, industry had 20 times as much input as public interest groups during public comment periods, a deluge of influence that correlated with “significant” changes to weaken rules in industry’s favor.
Put simply, the present legal tools for achieving a democratic environmental regulation fail because they neither recognize nor redress disparities in economic and social power. We need to forge tools that do both. To that end, environmental advocates should experiment with innovations for increasing the public’s role in regulating, such as those described by K. Sabeel Rahman and Hollie Russon Gilman in their remarkable new book, Civic Power: Rebuilding American Democracy in an Era of Crisis.
One such innovation, however, gets far less attention that it deserves: the “administrative jury.” Outside of David Arkush, who wrote a comprehensive and compelling paper on the concept, few have called for using citizen panels to regulate the environment. Perhaps the idea seems too novel or untested. If this is the case, the history of environmental law can ease our caution by demonstrating the power of letting ordinary people decide.
In the present day, tort and property law exist at the margins of environmental law, with administrative law taking center stage. In the middle of the 20th century, however, the roles of private and public law were reversed. Courts, rather than administrative agencies, were the institutions doing much of the work addressing pollution. Inexpert judges and juries, not expert agency officials, determined what counted as excessive levels of pollution, weighed the relevant evidence and science, and punished environmental wrongdoing. They did so by drawing on knowledge generated by the litigants, scientists, and court-appointed special masters. This expertise was interrogated and aggregated by the officers of the court, wielding the rules of evidence and procedure. In this regulatory system, we see a mirror image of our present one: ordinary people had the right to decide, while government officials had the right to inform and constrain.
An ad hoc, court-driven system of environmental regulation has many flaws. Juries, however, are not one of them. As one expert says, our common sense skepticism about the evaluative capacities of ordinary people “is not consistent with a review of the many studies that have examined these issues,” which establish that juries do quite well in weighing scientific evidence. Studies have shown that, whether in guiding land use planning or determining the costs and benefits of ecosystem changes, citizen panels can tackle complex environmental issues. Whether citizens can make reasoned environmental policy, to borrow Marc Mihlay’s words, comes down to “the quality of expertise provided to the citizen” rather than the quality of the citizen’s expertise. Ordinary people can decide complex issues – but only within an institutional framework that enables their doing so.
There are good reasons we should consider building that framework, many of which are laid out in detail by Arkush. For one, juries can level a regulatory playing field distorted by concentrated power, a fact demonstrated in a paper I coauthored with Doug Kysar. We tell the story of farmers in Oregon who, in the mid-20th century, fought to save their crops from the pollution of a nearby aluminum plant. When the industry captured the state’s legislators and regulators, ending administrative efforts to rein in air pollution, the farmers brought their demands for regulation to court. In trial after trial, juries chose the path of stringent environmental protection over objections about dampening economic growth, issuing verdicts which helped force the plant to install state of the art emissions controls. The farmer’s success suggests that, rather than by asking nonprofits to win uphill battles for access against industry, we can ensure that regulation is for the people by making regulation by the people. One wonders how much of the present administration’s anti-environment agenda would survive if we let juries decide its fate.
Another reason to embrace juries is their potential to directly increase the power of ordinary people. Administrative juries – if made properly representative – could redistribute the power to govern away from a disproportionately white and male bureaucracy, and inject the desperately-needed perspectives of poor people, women, and people of color directly into environmental policymaking. Furthermore, if used broadly, administrative juries could serve as a small but substantial tool for redistributing economic power. While the payments given to courtroom jurors are dismally small, administrative jurors could get paid in correspondence with the immense value they would provide. Even if we could only pay jurors $30 an hour, a month’s worth of jury duty could boost a minimum wage worker’s annual pay by over 20%. If Jedediah Purdy is right in saying that questions of economic and social power are “the heart” of environmentalism, then the jury provides a useful tool for addressing those questions through the very process of regulation.
All of this is not to say that juries should be used to decide every environmental problem. Nor is it to say that juries must supplant other options for increasing citizen participation in regulation. Indeed, as Ronald Wright noted in his own appeal for using citizen panels in the administrative context, any proposal to let citizens decide involves careful consideration about a host of issues, from cost of implementation to the construction of jury pools to ensuring jurors have adequate information.
In the end, these considerations may lead us to deem juries unsuitable for many regulatory tasks. But they also may lead us to use juries to initiate and try enforcement actions. We might allow citizen panels to take air quality monitoring into their own hands. We may let juries choose from a range of competing air quality standards, or even set a social cost of carbon. Proponents of administrative juries are not necessarily suggesting we do these things. What they suggest is merely that environmental law take the question of letting citizens decide seriously.
In other areas of administrative law, we already have. Federal law often asks juries to review the validity of patents issued by federal regulators. Oregon uses a statewide application process to select citizen panels to both evaluate ballot measures and inform voters about those measures. And California uses a similar tool to redraw statewide legislative boundaries. These examples suggest that the issue isn’t whether environmental law can employ citizens as decision makers. Instead, the question is whether, in our quest to protect the environment, we are willing to experiment in the laboratory of administrative democracy.