32 ELR 10784 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Information, Public Participation, and Justice

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Frances Irwin currently coordinates U.S. participation in the Access Initiative as a Fellow at the World Resources Institute. Since 1973, she has worked as an environmental policy analyst and advocate for state, national, and international nongovernmental groups, including the Vermont Natural Resources Council, the Conservation Foundation, and the World Wildlife Fund. Carl Bruch is a Senior Attorney at the Environmental Law Institute, the Coordinator of the Partnership for Public Participation, and co-author of the U.S. case study for the Access Initiative. The authors express their appreciation to John Chelen, John Dernbach, Paul Orum, John Pendergrass, and Elena Petkova for their insightful comments on drafts of this Article. The views in this Article and any errors are those of the authors.

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An informed and active civil society plays an integral role in realizing sustainable development. Involving citizens,¹ nongovernmental organizations (NGOs), and businesses expands the knowledge base and resources for developing laws and policies, as well as improving compliance and enforcement. Public involvement can identify problems at an early stage, allowing them to be addressed while options are still open. As a result, transparency and public involvement improve the credibility, effectiveness, and accountability of governmental decisionmaking processes, ultimately resulting in better implementation of sustainable development objectives.

The United States has been an international leader in promoting transparency, participation, and accountability, both generally and in the environmental context. This Article examines the progress that the United States has made, as well as the problems encountered, over the last decade. It examines the international norms and standards for access to information and public participation articulated in Principle 10 of the Rio Declaration and Agenda 21, as well as regional instruments clarifying and implementing these principles. In many cases, the international standards have been inspired by or drawn upon specific U.S. laws and institutions such as environmental impact assessment (EIA) and freedom of information laws. As international standards develop, though, a number of them envisage a broader public role than the U.S. legal system currently allows. Examples include a right of access to information (not just a statutory empowerment), developing and using indicators of sustainable development and environmental governance, mandating state and local authorities to guarantee access to information and public participation, establishing a national entity to provide public leadership on public participation in sustainable development, and ensuring broad access to courts.

The Article then explores the status of access in 1992 and examines the developments over the last decade in promoting and hindering access to information and participation. The United States had basic laws and practices well in place as the decade opened and was already experimenting with public, online access to certain types of information. Through the 1990s, however, new initiatives faced barriers arising from the inherited information systems and practices, political gridlock, a focus on new technology, and civic disengagement. And the September 11, 2001, attacks dramatically changed the dialogue. Nevertheless, significant changes in electronic access greatly increased the numbers of people participating during the decade. New legislation incorporated electronic information into the Freedom of Information Act (FOIA). The President's Council on Sustainable Development (PCSD) provided a model for broad leadership and coordination, while several Executive Orders took a step toward including more voices in decisionmaking.

The final section presents recommendations in seven areas. Four focus on information: adopting indicators of sustainable development that include indicators of public access to information, participation, and justice; developing environmental indicators and using them in regular state-of-the-environment reports; developing a new generation of principles governing information generation, integration, and access; and supporting delivery of information to the public in useful ways. Three further recommendations also suggest establishing a forum for promoting public access as an approach to sustainable development, strengthening access to justice, and playing a lead role on access issues internationally.

As this Article was being completed, the United States is still responding to the terrorist attacks of September 11. It appears that the government may well curtail public access to specific types of information, for example, relating to chemical facilities that could be terrorist targets. In fact, the U.S. Department of Transportation removed information on oil and gas pipeline routes from the Internet, the U.S. Environmental [32 ELR 10785] Protection Agency (EPA) removed online information on risk management plans, and the U.S. Department of Health and Human Services withdrew a report on the potential impacts of terrorism directed at chemical facilities.² The U.S. Congress and the federal agencies are considering broad measures that could reshape the legal, policy, and institutional framework for access to information and public participation.³ With this caveat, this Article focuses on the decade of experience since the Rio Earth Summit, recognizing that much may change in the coming months and years.

Principle 10 and Sustainable Development

More than 15,000 members of NGOs joined the 130 heads of state at the 1992 Earth Summit in Rio de Janeiro to seek mechanisms to protect the environment and foster sustainable development. Both the Rio Declaration⁴ (the consensus statement of principles) and Agenda 21⁵ (the action plan or blueprint for sustainable development) adopted at the Earth Summit emphasized the importance of public involvement in facilitating sustainable development. Since Rio, regional and national initiatives around the world have expanded on Principle 10 by clarifying specific norms, rights, and institutions to guarantee access to information, participation, and justice.

Overview of Public Participation and Information in Principle 10 and Agenda 21

The procedural norms of access to information, participation, and justice in environmental matters expressed in Principle 10 and Agenda 21 build upon earlier commitments to general procedural rights. The 1948 Universal Declaration on Human Rights—considered by many to constitute customary international law—provided the kernels for generalized rights of access to information and justice.⁶ The 1966 International Covenant on Civil and Political Rights guarantees citizens the "freedom to seek, receive and impart information and ideas of all kinds."⁷ Regional human rights conventions and charters in Africa, the Americas, and Europe reaffirmed these rights, as well as the right to participate in decisionmaking.⁸ The 1982 World Charter for Nature called for public disclosure of conservation information and public participation and access to redress.⁹

To promote sustainable development more broadly, Principle 10 of the Rio Declaration succinctly crystallized these emerging norms of public involvement:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is [32 ELR 10786] held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.¹⁰

The norms of public involvement encapsulated in Principle 10 are central to realizing many of the other Rio principles, particularly those addressing equity, integrated decision-making, poverty eradication, unsustainable consumption, and precaution.¹¹

Agenda 21 was adopted at the Earth Summit to implement the Rio Declaration, and its detailed plan of action has shaped the activities of the United Nations (U.N.) Environment Program and other international organizations. Chapters throughout Agenda 21 emphasize access to information, participation, and justice for civil society as essential in developing, implementing, and enforcing laws and policies to foster sustainable development.¹²

Section III of Agenda 21, comprising Chapters 23 through 32, recognizes that "the commitment and genuine involvement of all social groups" is "critical to the effective implementation of the objectives, policies and mechanisms agreed to by Governments in all programme areas of Agenda 21."¹³ Accordingly Section III sets forth measures that nations and U.N. institutions should take to promote the ability ofdifferent "major groups" of the public to participate in decisions.¹⁴

Chapter 27, providing for "Strengthening the Role of Non-Governmental Organizations: Partners for Sustainable Development," starts from the premise that "[NGOs] play a vital role in the shaping and implementation of participatory democracy. Their credibility lies in the responsible and constructive role they play in society."¹⁵ To ensure meaningful participation of NGOs, they must be independent, adequately funded, and have increased financial and administrative support.¹⁶ The United Nations and national governments are charged with reviewing formal procedures and mechanisms to promote public involvement,¹⁷ with the objective that they "should promote and allow the participation of [NGOs] in the conception, establishment and evaluation of official mechanisms and formal procedures designed to review the implementation of Agenda 21 at all levels."¹⁸ Separate sections set forth measures for the U.N. system and governments to take to promote access to information and public participation, as well as to "ensure the right of NGOs to protect the public interest through legal action."¹⁹

The foundation of Chapter 40, on "Information for Decisionmaking," is that "in sustainable development, everyone is a user and provider of information . . . ."²⁰ Chapter 40 outlines practical and institutional mechanisms for improving the information that is available for decisionmaking, as well as improving its availability to the broader public.²¹

The "global partnership for sustainable development" advanced by Agenda 21²² envisages the engagement of all sectors of society at all levels. An engaged and well-informed citizenry can better participate in government decision-making, improving the decisions, building support for the decisions, and strengthening their implementation. All of this is essential to realize an effective regime for sustainable development, and the involvement of all major social groups will be necessary.²³

International Development and Application of Principle 10

Agenda 21 established a framework for U.N. organizations and national governments to review their laws, institutions, and practices with the goal of promoting, inter alia, access to information, participation, and justice. Building on this general action plan, regional initiatives on public involvement have taken strides to fill in the details.

Since 1992, regional initiatives in the Americas, the U.N. Economic Commission for Europe (UNECE) (which includes the United States), Asia, and East Africa have sought to implement the commitments that nations made under Principle 10 and Agenda 21.²⁴ These initiatives range from a binding convention,²⁵ to a memorandum of understanding [32 ELR 10787] that was appended to a treaty,²⁶ to a regional "strategy,"²⁷ to draft guiding principles.²⁸ Together, the regional initiatives illustrate the emergence of a nascent global foundation for public involvement that expands upon Principle 10 and Agenda 21. The regional initiatives are discussed elsewhere in detail,²⁹ but it is worth noting that many of the international norms and practices draw heavily upon U.S. laws and experiences, including FOIA,³⁰ the National Environmental Policy Act (NEPA),³¹ the federal Administrative Procedure Act (APA),³² and citizen suit provisions in numerous environmental laws.³³ Yet, in some cases, the regional initiatives have advanced new norms and practices. For example, the Aarhus Convention, which established a framework of access to information, participation, and justice in Europe, has extended public participation requirements to government plans and programs.³⁴ The convention is also unusual in that NGOs participated fully in the negotiations and drafting and continue to take a major role as the Aarhus Convention is implemented.³⁵

These instruments have differing degrees of legal force, although all of them carry persuasive effect: already some Latin American nations have relied on their commitments under the Inter-American Strategy for the Promotion of Public Participation in Decisionmaking for Sustainable Development (ISP)—a "strategy," rather than a declaration or convention—as a mandate for national laws guaranteeing public involvement in environmental matters.³⁶ The instruments also have varying levels of detail in setting forth norms governing access to information, participation, and justice. In some cases, most or all regions endorse a particular approach (such as EIA); in other instances, some regions have yet to consider specific mechanisms. While there does appear to be an emerging set of norms, as yet there remains no definitive global affirmation of such a framework.³⁷

Why Does Public Access Matter in the United States?

Moving toward sustainable development requires fundamental change. Americans must change how they live, work, and travel. Government, business, and civic institutions must change how they organize and operate. The United States must restructure its economy. William Ruckelshaus, twice head of EPA and a member of the Brundtland Commission on Environment and Development, compared the scale of this transformation to that of the agricultural and industrial revolutions.³⁸ A democratic society can only accomplish such far-reaching individual and organizational changes by making readily available the information that citizens need to make their own choices and by involving citizens in making societal choices. Broad participation in turn leads to decisions that are widely viewed as fair and more likely to be implemented successfully.

At the same time, governmental decisionmakers and commercial enterprises themselves need better information to make decisions. Sustainable development requires that everyone have access to the necessary information. Information [32 ELR 10788] needs to be more than publicly available; it must be reliable, sufficient, and useful. Consequently, data integration and integrity is as essential to sustainable development as public access. Indeed, public access can provide opportunities for data review and enhancement (improving data integrity) and for innovations linking datasets.

Involving the public expands the knowledge, values, and experience available to develop paths to sustainability. If involved early and extensively, citizens can identify and address possible problems, thus saving time, energy, and financial resources. Public involvement can also extend governmental resources for taking action and monitoring progress. Most important, a broad public role will increase the credibility, effectiveness, and accountability of governmental sustainability programs.³⁹

Few question that public access to information and decisionmaking is a basic characteristic of U.S. democracy. James Madison said it memorably: "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance. And the people who mean to be their own Governors, must arm themselves with the power, which knowledge gives."⁴⁰ Nearly two centuries later, the PCSD stressed the crucial role of information and participation in building a sustainable country: "A knowledgeable public, the free flow of information, and opportunities for review and redress are critically important to open, equitable, and effective decision making."⁴¹

It is at the level of who will participate in particular decisions and have access to what kinds of information that the questions arise. While sometimes appearing mundane and technical, these questions have taken on new meaning as the Internet and information technology revolutionized communication in the decade after Rio and the nature of the transition to sustainability became more clear.⁴² At the end of the decade, efforts to prevent terrorism and improve national security posed challenges to government predicated on access and participatory democracy. While most of these security concerns affect a small portion of the larger universe of information that is beneficial to make publicly available, many environmental advocates expressed concern that efforts to restrict information could expand and establish a general approach of secrecy. Increasingly, developing a next generation of "access" principles and practices is emerging as a key tool to engage U.S. citizens in their communities and at larger scales in finding ways to meet human needs and bequeath a safer, healthier environment to future generations.

Assessment of U.S. Performance, 1992-2001

At the time of the 1992 Earth Summit, the United States had in place considerable legislation for ensuring public access to information and participation. This included the APA, including FOIA and the Government in the Sunshine Act; NEPA; the Emergency Planning and Community Right-To-Know Act (EPCRA)⁴³; and access provisions in most environmental laws. As noted below, these laws established practices and institutions that informed and guided the international development of public involvement through the 1990s.⁴⁴

In contrast to international leadership on access in earlier years, the record of the U.S. government in the 1990s was mixed. It was in the forefront in extending FOIA to include electronic as well as written material, and electronic dissemination skyrocketed as use of the Internet spread. The PCSD developed an action plan for sustainable development and the performance-based practices gained a foothold in governmental agencies. However, efforts to incorporate sustainable development into policy changes often faced bitterpolitical divisions and an entrenched legacy of fragmented information systems and structures developed around separate laws and programs of an earlier era. In a period of decline in civic engagement, much of the country's innovative energy and investment went into technical developments rather than improving governance despite efforts to reinvent government to serve citizens. Judicial action made it more difficult to utilize established citizen suit provisions. A new Administration refused to make public the list of companies consulted in developing its energy plan, constrained access to presidential records, and adopted a narrower interpretation and application of FOIA.

After the terrorist attacks of September 11, access to some information was limited without public consultation or consistent criteria, highlighting the nation's lack of a basic right of access to environmental information and decisions despite its strong set of legal provisions. Refocusing public access to information and participation practices on sustainable development was left for the future.

This section reviews the status of access to information, public participation, and justice in the United States at the time of the 1992 Rio Earth Summit. It examines some of the structural limitations of the U.S. system to providing access in 1992, and then surveys the developments during the intervening decade. This section concludes with a brief comparison of how the U.S. laws, institutions, and practices compare with Rio Principle 10, Agenda 21, and the norms emerging from the various regional initiatives implementing Principle 10.

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At the outset, it should be noted that while the 1990s saw only modest developments at the federal level, numerous state and local initiatives have advanced novel mechanisms for integrating data, enhancing public access, and fostering public participation. These mechanisms could form the basis for the next generation of national laws and practices governing public involvement, in much the same way that early local and state right-to-know laws provided models for the toxic release inventory (TRI).⁴⁵

The Baseline: Laws and Practice as of 1992

General Access Rights

In the United States, most of the rights, practices, and institutions guaranteeing access to information and public participation flow from statutes and regulations. Unlike an increasing number of countries that have a constitutional right to environment, information, or participation,⁴⁶ the most relevant U.S. constitutional provisions relate to freedom of speech and association in the First Amendment.⁴⁷ However, these tend to be defensive rights that protect citizens against government overreaching and are not generally understood to establish a constitutional right to obtain information from the government or require the government to provide for public participation in its decisionmaking processes.⁴⁸

The core legal provisions guaranteeing access to information and public participation in the United States are found in the 1946 APA,⁴⁹ which governs how all federal agencies conduct business and includes the 1966/1974 FOIA and the 1976 Government in the Sunshine Act. FOIA requires any agency to promptly (within 20 days from receipt of the request) furnish any reasonably described record that "any person" requests.⁵⁰ There are exceptions for national defense, internal agency personnel matters, trade secrets, attorney-client privilege, personal privacy, and in limited law enforcement contexts.⁵¹ Through case law, these exceptions have been construed narrowly,⁵² with the presumption in favor of public access. If a court finds that agency personnel arbitrarily and capriciously withheld information, the Special Counsel is compelled to initiate a proceeding to determine whether to take disciplinary action against the person who was primarily responsible.⁵³ The person requesting information under FOIA normally must pay for the agency's costs of locating and copying the document,⁵⁴ although if the information is requested for bona fide public interest purposes, the agency must waive all fees when providing the information.⁵⁵ If the requestor simply wants to review the documents, access is free.

The 1976 Sunshine Act established that meetings of federal agency heads must be held in public, unless the meeting is specifically exempted.⁵⁶ A "meeting" happens when an agency considers matters within its formally delegated authority.⁵⁷ The exemptions are generally the same as for FOIA, with the addition that meetings where premature disclosure of information would "be likely to significantly frustrate implementation of a proposed agency action" can be closed, as can discussions of pending civil litigation and matters relating to formal agency adjudication.⁵⁸

In light of the numerous advisory committees that federal agencies convened to provide input to potential decisions, Congress passed the 1972 Federal Advisory Committee Act (FACA).⁵⁹ As with the subsequent Sunshine Act, the FACA requires advisory committees to publish advance notice in the Federal Register of their meetings, to hold public meetings (with the same exceptions as set forth in the Sunshine Act), and to grant the public access to meeting minutes and other records.⁶⁰

The APA also established the parameters for public participation in rulemaking.⁶¹ When an agency wishes to adopt, amend, or repeal a formal rule or regulation—defined as one that a statute requires "to be made on the record after opportunity [32 ELR 10790] for an agency hearing"—the agency must undertake a hearing with opportunities for interested persons to present evidence, conduct cross-examination, and other trial-like measures.⁶² Informal rulemaking—often called notice-and-comment rulemaking—is more common. For informal rulemaking, an agency must provide public notice in the Federal Register of the substance of the proposed rule, the legal authority for the rule, and information on the time, place, and nature of the proceedings.⁶³ The agency must allow "interested persons" a reasonable time to submit written comments, and it may provide opportunities for the public to comment orally.⁶⁴ After the public comment period, the agency must consider the public comments. This is frequently established through a response to comments document that is published contemporaneously with the final rule.⁶⁵

The APA allows citizens who have suffered a "legal wrong [or have been adversely affected] because of agency action" to seek judicial review.⁶⁶ The agency action must be "final,"⁶⁷ and it will be found unlawful if it is: (1) "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law"; (2) "contrary to constitutional right . . ."; (3) ultra vires; (4) "without observance of procedure required by law"; (5) "unsupported by substantial evidence" (in the case of §§ 556 and 557 proceedings); or (6) if reviewed de novo would be "unwarranted by the facts."⁶⁸

The APA applies to all government agencies, including EPA, the U.S. Department of Agriculture (including the U.S. Forest Service (Forest Service)), and the U.S. Department of the Interior (DOI) (including the Bureau of Land Management (BLM), the National Park Service (NPS), and the U.S. Fish and Wildlife Service (FWS)). In a number of cases, these general provisions are implemented through agency-specific public participation policies.⁶⁹

Public Participation in the Environmental Context

In addition to general statutory guarantees of public access to decisionmaking processes, many federal environmental and natural resource laws, almost all of which were in place in 1992, establish procedures for including the public in environmental decisions.⁷⁰

NEPA—signed into law January 1, 1970, thus inaugurating the "Environmental Decade"—established the environmental assessment/environmental impact statement (EA/EIS) process for the United States and served as the model for EIA around the world.⁷¹ NEPA compels an agency to seek public input regarding "federal actions" (including private actions requiring sufficient federal action, such as permitting) in the scoping phase to determine the need and scope of the proposed project.⁷² If the agency determines that a "major federal action" may "significantly impact" the human environment, the agency must prepare an EIS.⁷³ In this process, the agency must allow the public to comment on the adequacy of the planning documents, including the alternatives analysis and compliance with relevant laws.⁷⁴ The agency must publish notice of the draft EIS, make the draft EIS publicly available, and allow for the public to submit written and oral comments on the draft EIS and the underlying documents.⁷⁵ The agency must take the public comments into consideration and respond to all comments received (although it may group like comments) in its record of decision that is published contemporaneously with the final EIS.⁷⁶ If an agency fails to undertake any of these procedures, a court can hold that the failure constitutes reversible error and invalidate the final EIS, requiring the agency to go through the process properly.⁷⁷

Many environmental statutes rely on public participation to improve the decisionmaking process and to build public support for the final decision. For example, the Resource Conservation and Recovery Act (RCRA)⁷⁸ and some other environmental statutes allow any person to petition an agency to develop, amend, or repeal a regulation.⁷⁹ Public notice and opportunity for comment frequently is required for permitting actions.⁸⁰ Before taking action to clean up a contaminated site according to the national contingency plan under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), EPA must circulate the record of decision for public comment.⁸¹ Under RCRA, citizens are encouraged to report exposure to hazardous waste at treatment, storage, and disposal facilities to EPA, and are encouraged to comment on any settlements negotiated with facilities that are found to pose an immediate and substantial threat to the environment or public health.⁸² [32 ELR 10791] Biological assessments and biological opinions prepared under the Endangered Species Act (ESA) include public comment, per NEPA.⁸³

Management plans developed pursuant to natural resource laws typically mandate public participation in their development and amendment. The National Forest Management Act requires the Forest Service to take public comment into account when developing national forest management plans.⁸⁴ Similarly, under the Federal Land Policy Management Act (FLPMA), the BLM must incorporate public participation throughout the development and amendment of land use plans and EIS.⁸⁵ Public participation is especially important under FLPMA, which mandates that the BLM adopt a multiple use approach that benefits a wide range of interests and necessarily requires input from many citizen, business, and nongovernmental interests. The Coastal Zone Management Act (CZMA) also requires public participation in designing state CZMA management plans.⁸⁶

Congress accorded the public a special role in ensuring the implementation and enforcement of most environmental laws. Through "citizen suit" provisions, citizens and NGOs can file suit against an agency for failing to perform a nondiscretionary duty or against a private party for violating the specific law.⁸⁷ These provisions are usually designed to supplement government action, so plaintiffs must provide advance notice of intent to file the suit to the government and the potential defendant, during which time the government can preempt the suit by filing its own action.⁸⁸ Plaintiffs must still satisfy the constitutional standing requirements, namely injury-in-fact caused by the defendant's action that is redressible.⁸⁹ Relief is generally confined to injunctions and civil fines paid to the U.S. government.⁹⁰ If the citizens or NGOs prevail, they can recover reasonable attorneys fees and court costs.⁹¹

Congress passed the Equal Access to Justice Act (EAJA)⁹² in 1980 to help level the playing field between the federal government and small business litigants, NGOs with fewer than 500 employees, and other specified parties. The EAJA seeks to protect parties with limited resources from potential abuse by regulatory agencies due to significant disparities in financial capital for pursing legal actions. The EAJA aids eligible individuals and small entities that are parties to litigation against the government by providing for the award of attorneys fees (up to $ 125 per hour) and other expenses. Any eligible party may receive an award when it prevails over the government, unless the government's position was "substantially justified" or special circumstances make an award unjust.

Access to Environmental Information

U.S. environmental statutes adopted during the 1970s and 1980s rely on public access to environmental information to educate the public and the regulated community about the status of the environment and factors affecting it. Accordingly, agencies must collect relevant information, analyze and synthesize it, and produce public reports. Starting in 1970, NEPA required the president to submit annual environmental quality reports (EQRs) to Congress on the status of the environment; trends; the availability of natural resources; the effectiveness of federal, state, and local government activities, as well as those of NGOs and individuals; and proposals for addressing the deficiencies.⁹³

While NEPA took a broad approach to making environmental information available to the public, individual statutes ask for reports on particular problems such as air pollution, water pollution, waste management, pesticides, and toxic chemicals. Under these laws about individual media or problems, agencies produce public reports. Additionally, businesses must report information to government agencies for many purposes, such as registering a pesticide, reporting on an accident, applying for a permit, and demonstrating compliance with that permit.⁹⁴ This information is often, but not always, available to the public.⁹⁵ Citizens living near a facility can learn whether, for example, a facility is complying with its permit under the Clean Water Act (CWA). However, much information under registrations for pesticides or submissions on chemicals may be held confidential.⁹⁶ In any case, individual company reports under the many separate laws are not intended to track overall environmental performance. Because the reports collect data in many different ways and are submitted at different times to different local, state, and federal offices, they are very difficult to piece together to understand the larger picture of what is happening in a particular facility, company, or sector or with a type of product.⁹⁷

In contrast, the 1986 EPCRA⁹⁸ established through the TRI a mechanism to provide information to the public in a standardized form that is easier to use in improving the performance of individual facilities and in making policy more effective. Under the law, facilities report the quantities of [32 ELR 10792] listed chemicals that they release to different environmental media (water, air, and land) and transfer in wastes.⁹⁹ The reporting is media-, sector-, facility-, and chemical-specific, so that comparisons can be made among environmental media, among industrial sectors, among facilities within a sector, and among chemicals in different sectors or facilities. Moreover, EPCRA was the first statute that required the data collected be made publicly available "by computer telecommunications and other means."¹⁰⁰ Starting with approximately 300 chemicals, the listed chemicals now number around 650, and many of these are not currently regulated by the major environmental statutes.¹⁰¹ EPA compiles the emission information into a TRI, which is publicly available online.¹⁰² Taking the raw data from EPA, NGOs began to provide access for the public to learn about emissions of facilities in their neighborhood and to use the data to highlight pollution problems and advocate solutions.¹⁰³

Under the 1990 Clean Air Act (CAA) Amendments, regulated facilities must develop risk management plans (RMPs) that address worst-case and planning case scenarios for accidental releases from the facility, as part of a broader program that includes hazard analysis, prevention, and emergency planning.¹⁰⁴ These RMPs were to be made publicly available and posted on the Internet.¹⁰⁵

Community and public education and access to information figures prominently in many environmental statutes. CERCLA requires EPA to develop a community relations plan that apprises local citizens about the status of hazardous waste cleanups.¹⁰⁶ EPA must make information on hazardous waste treatment, storage, and disposal facilities publicly available under RCRA.¹⁰⁷ The Toxic Substances Control Act mandates public education on potential hazards from lead and radon.¹⁰⁸ In the private sector, a few early attempts on eco-labeling started to take root by 1992, for example labeling of tuna that was caught in a manner that did not harm dolphins (dolphin-friendly).

Challenges of the 1990s

The U.S. laws, institutions, and practices in place in 1992 provided a strong foundation for carrying out Rio Principle 10 and Agenda 21 activities. Citizens had statutorily mandated opportunities to participate in a wide range of governmental decisions and to obtain information from governmental agencies. They had standing to bring legal action to enforce environmental and procedural laws. They were beginning to make use of the possibilities that fast-developing information technology offered. The Federal Trade Commission was about to issue guidelines on environmental marketing, and EPA was initiating new programs to label energy-efficient equipment.¹⁰⁹ An attempt to shift government agencies to a more performance-based approach to management was in the early stages.¹¹⁰ As the 1990s evolved, however, efforts to strengthen access to information and participation faced four significant barriers: a legacy of narrowly focused information and organizational systems, political deadlock on policy reform, a limited focus on improving public access as new technology was adopted primarily to increase efficiency and reduce costs, and a decline in civic engagement.

Narrowly Focused Information Systems and Organizational Structures Resisted Integration and Left Gaps

The information systems developed in the 1970s and 1980s were designed with few exceptions to serve experts and managers of individual programs. The act of merely finding information about the environmental record of a single facility might take a citizen to half a dozen data systems and several different programs. Social and economic data required further searches. Citizens seeking to make links with transport, energy, health, or labor issues were likely to find the environmental data hard to connect. Although attempts to integrate and present data to serve a wider range of participants and support more broadly based decisions had commenced, the inherited systems and programs continued to pose a formidable obstacle. The narrow jurisdiction of congressional committees and the specialized missions of many nonprofit groups reinforced the isolation of these governmental structures and hindered attempts to build cross-program and interagency initiatives critical to framing decisions to promote sustainability.¹¹¹

Reform Competed With Regulatory Relief

To move information out of the silos built for an earlier era requires a vision and strategy—a new synthesis of aspirations for an equitable society that is environmentally and economically healthy. It means making significant changes in policy and organizational structure. But as the 1990s started, the political debate was polarized.One camp wanted government to get out of the way of economic [32 ELR 10793] growth by providing regulatory relief. Others feared that any change would weaken the regulatory structure for environmental protection and stressed compliance with existing standards. Often caught in between were reformers who saw a need to build a system that improved economic, social, and environmental performance. Some reformers focused on financial incentives or providing public accountability through public information. Others put the emphasis on stronger worker and community participation or improving private and governmental decisionmaking by integrating environmental information and/or legislation.¹¹² The result was largely policy gridlock with occasional agreement on steps forward at the edges.

Efficiency, Security, and Technical Concerns Overshadowed Attention to Access

The explosive development of information technology and the Internet took center stage in the 1990s. While the new technology offered huge opportunities for improving access, the government found it hard to compete for talent attracted by new companies. At the same time, many managers of government programs saw their mandate as reducing the cost of the regulatory and service processes and addressing security, confidentiality, and privacy concerns. The focus was often on "how" information was delivered rather than on "what" information was available "to whom." Citizen access tended to receive less attention and fewer resources. Although an NGO right-to-know coalition was growing and achieved some significant successes,¹¹³ access to information was still emerging as a policy issue in itself.

Civic Engagement Declined

People learn about ways to improve their quality of life—where to live, work, and play—through a web of personal connections and make decisions through civic engagement. The terrorist attacks of September 11 brought a significant, if perhaps momentary, resurgence of community engagement. However, political scientist Robert Putnam found a dramatic loss of social capital—the density of connections between individuals—in the United States in the last decade of the 20th century.¹¹⁴ People were spending less time with friends. Voting was down by one-quarter and interest in public affairs by one-fifth over the last two or three decades. Much participation was limited to making financial contributions. The public expressed interest in more information, especially related to health. One found that 89% of Americans supported the development of a nationwide network to track and monitor chronic diseases community by community and identify potential environmental factors. At the same time, a set of annual surveys found that the percentage of Americans who agreed that "I'm concerned about what I myself can do to protect our environment and natural resources" declined from 55% in 1990-1992 to 40% by 1999.¹¹⁵

Thus, despite the base of experience and the promise of new initiatives and technology, U.S. efforts to build on Principle 10 and Agenda 21 faced entrenched information systems and governmental programs, political deadlock, and a public often distracted from longer term civic responsibilities by tales of instant millionaires in a so-called new economy.

Access and Sustainability: U.S. Policy, Law, and Practice From 1992 to 2001

The 1990s brought a dramatic growth in access to information through the Internet. Research suggested indicators to track sustainable development at local, state, and national levels. As an alternative to litigation, collaborative decisionmaking processes became more common, bringing more perspectives, information, and ideas for finding solutions to the table. The PCSD demonstrated the ability of a broad-based group to surmount political tensions and propose an action plan for the United States with a public role at its heart.¹¹⁶ Executive Orders began to build a structure to incorporate the goals of the environmental justice movement into the federal government and bring some new voices into decisionmaking. However, efforts to focus information and participation around sustainable development never gained the clarity and momentum to become a front burner issue. Even as new technology greatly increased ability to share and use data, in some cases public reporting of information and participation in decisions stalled or lost ground. Congressional action, for example, made the annual report on environmental policy and trends required under NEPA voluntary,¹¹⁷ and thereafter it was produced erratically. As the new century began, the United States had not taken the basic steps of adopting—let alone using—a set of indicators and institutionalizing a process to involve the public in decisions aimed at sustainable development. And the assumptions for taking these steps were abruptly reframed as the country struggled to address the potential use of information by terrorists. Internationally, the United States sometimes took the lead but often stood on the sidelines on access issues. Despite some notable efforts to cross the digital divide and to create a digital dividend,¹¹⁸ much of the nation's investment went into the technology bubble rather than into building a more sustainable world.

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This section first discusses three trends in providing access to information in ways that support sustainable development: developing indicators to track economic, environmental, and social trends; providing electronic information to the public; and supporting institutions that provide data and analysis. It then turns to three ways in which public participation in decisions evolved: stakeholder leadership through the PCSD; Executive Orders providing for participation by all groups regardless of race, culture, or income; and increasing use of a wide range of processes to increase community dialogue and promote dispute resolution. Finally, the section looks briefly at the evolution of access to justice and at the U.S. role in helping other countries and institutions around the globe to implement Principle 10 in the past decade.

Steps Toward Developing Indicators for Sustainable Development

Agenda 21 calls on countries to develop systems that track progress toward achieving sustainable development by adopting indicators that measure changes across economic, social, and environmental dimensions.¹¹⁹ The United States had not adopted a set of indicators as the 1990s ended, though it had taken some steps toward doing so through the PCSD, passage of the Government Performance and Results Act (GPRA), which requires government agencies to track their performance, and a wide range of projects to develop and test sustainability indicators.

The PCSD recommended that the United States develop indicators of progress toward national sustainable development goals and regular reporting on these indicators to the public.¹²⁰ With input from NGOs and the private sector, the Interagency Working Group on Sustainable Development Indicators took a step toward implementing this recommendation by proposing 40 indicators that could be tracked with federal data that is already regularly collected.¹²¹ These proposed indicators would cover economic, social, and environmental trends by tracking long-term endowments, processes, and current results. They would include, for example, labor productivity, energy and material consumption per capita and per dollar of the gross domestic product (GDP); surface water quality, greenhouse gas emissions, and educational achievement rates.

The PCSD also urged further development and use of supplemental national income accounts to provide an integrated measure of the economy, the environment, and the natural resource base.¹²² The National Research Council reviewed the work of the U.S. Department of Commerce's Bureau of Economic Analysis on U.S. Integrated Environmental and Economic Satellite Accounts in 1994 at the request of Congress. It recommended immediate resumption of earlier work on estimating the value of mineral reserves and said that the bureau should continue developing accounts of renewable resources and environmental assets such as clean air and water.¹²³ Taking a complementary approach, an international team of researchers documented the scale of material inputs to the economies of Germany, Japan, the Netherlands, and the United States and the outputs for the four countries, plus Austria.¹²⁴ Their reports proposed indicators to track material flows through industrial economies. If indicators such as total domestic output of materials were tracked over time and related to GDP, they would show the extent of decoupling of economic growth and resource throughput.

Both governments and NGOs have gained experience in developing and using indicators. EPA's regional office in New England found that setting goals and tracking progress under the GPRA helped focus local environmental groups, municipalities, and companies as well as the press and other agencies in solving a long-time pollution problem affecting the Charles River.¹²⁵ The GPRA requires government agencies to prepare strategic plans and performance plans and then to report the results each year. At the national level, EPA has used the GPRA to establish milestones and measures to support national environmental goals. One aims at expanding Americans' right-to-know.¹²⁶ Under this goal, EPA tracks objectives such as increasing the quality and quantity of education, outreach, and data availability. While the law has the potential to increase government accountability and openness, research by the Office of Management and Budget (OMB) Watch found that EPA had so far involved few citizen groups and no one from states or local communities in the GPRA processes. OMB Watch also found that the demand for GPRA information is relatively weak and that environmental groups have yet to place much priority on the GPRA, perhaps partly because the information is not presented in a usable way (such as by watershed or political jurisdiction).¹²⁷

In some arenas, NGOs are playing a key role in developing indicators to track progress toward sustainability goals. One example is the multi-stakeholder Global Reporting Initiative (GRI), which has developed reporting guidelines on sustainability for companies.¹²⁸ NGOs have also worked with local and regional governments to develop and apply indicators for communities. Redefining Progress (a California-based NGO) established a project that facilitates community indicator development by providing tools, resources, and technical support, and electronic communication.¹²⁹ It [32 ELR 10795] has identified about 200 existing and emerging community indicator projects. Sustainable Seattle, which originated in 1990 as a volunteer network and civic forum aimed at improving the region's long-term cultural, economic, environmental, and social health and vitality, issued its most recent report on 40 indicators in 1998.¹³⁰ Working with Environmental Defense, Ohio Citizen Action developed and applied a livability index that tracks environmental conditions in Dayton, the sources of problems, and local programs to address the problems.¹³¹

At the end of the decade, many groups had some experience with indicators for sustainable development, but there was no sustained process to develop and use a national set of indicators.¹³² With a new Administration in place, renewed efforts to develop environmental indicators emerged in EPA in 2001.¹³³ They could provide a starting point for or input into a broader set of sustainability indicators.

Access in an Electronic Age

In the 1990s, the United States developed access law and policy primarily through an electronic lens. It began to define what public access means in the world of the Internet by dealing with a range of questions about balancing access with security and privacy, promoting electronic reporting and integration and standardization of data, and making data available in forms more useful to citizens. These questions all raise issues about how to put into practice Rio Principle 10's statement of governmental responsibility to facilitate and encourage public awareness and participation by making information widely available.

To improve efficiency and reduce costs, the U.S. government had computerized much of its census, energy, business, environmental, and health data in the 1980s. However, computerized data were not easily accessible to the public. FOIA provided public access only to published data and printouts from computerized files. By the early 1990s, advocates for the public right-to-know saw the need for a broad public policy debate on citizen access to electronic information. They built on the success in the late 1980s of the TRI, the first U.S. governmental electronic database legally required to be disseminated to the public. Soon after the 1992 Rio Conference, five U.S. foundations joined to sponsor a conference linking the sustainable development and public access agendas. The hundred participants from grass-roots and national public interest groups and governmental agencies recommended that the federal government make available electronically its data on the census, housing, health, education, transportation, environment, and natural resources. They called for policies to promote citizen access by helping citizens locate and link the data, by building the capacity of intermediary groups and communities, and by providing financial support.¹³⁴

In mid-decade, Congress adopted measures that fostered uniform management of information and recognized public access to electronic information. Amendments to the Paperwork Reduction Act (PRA) in 1995 directed agencies to set up a system to manage dissemination of information and gave responsibility to an Office of Information and Regulatory Affairs (OIRA) at the OMB to build consistent practices among agencies.¹³⁵ The amendments also addressed access for those with disabilities. The 1996 Electronic FOIA required agencies to make government records accessible in the form they are requested.¹³⁶ It instructed agencies to use technology to establish electronic reading rooms and to index and describe major information systems.

NGOs played a key role in developing tools and demonstrating opportunities for electronically delivering information to the public. The Right-to-Know Network was established in 1989 to provide free access to government data-bases on environment, housing, and sustainable development.¹³⁷ Known as RTK-Net, it also provides technical support and training to enable citizens to use the data; for example, to analyze the performance of banks in housing and industrial plants in pollution in particular communities. As access to the Internet rapidly reduced the cost of exchanging information and data, thousands of web pages became available and new techniques made data easier to use. Environmental Defense's Scorecard website allows a citizen to enter a zip code or the name of a community and obtain pollution information about local facilities.¹³⁸ As the Economist observed:

An old lop-sidedness in democracy—big business and big government are better informed than individuals, so win most of the big arguments—is suddenly corrected. It used to be that executives and bureaucrats could assure small-fry-citizens that problems had been analyzed, scientists consulted, safeguards put in place. Now citizens no longer need to accept those assurances helplessly. They can log on to the Internet and check them, with a few clicks of a mouse.¹³⁹

In 2000, the first public governmentwide site, called FirstGov, went online. This single portal for access to government data allows a user to find information without knowing the name of a governmental agency or law. In many cases, it is no longer necessary to place endless phone calls or formal requests. "Today, one environmental advocate with a 56k modem and a $ 20 per month Internet account has more power to acquire information, to communicate, [32 ELR 10796] and to participate than a whole staff of people did [10] years ago," assert two attorneys at a Chicago law clinic.¹⁴⁰ They argue that by replacing the cumbersome process of making formal requests to the government for information, the Internet is decentralizing the environmental movement and shifting the balance of power between providers and users of the data and from Washington to the grassroots.

Of course, issues about providing access also began to emerge. A 1998 case brought under the PRA raised the question of reusing public data obtained for one purpose for another, in this case to index and present environmental compliance records by industrial sector that would make it easier for citizens to compare performance among facilities. The case was dismissed, allowing EPA to reuse the public data, and some issues were then debated as data quality concerns.¹⁴¹ Decisions about how to handle access to scenarios about possible accidents stimulated a major debate on the use of disclosure as a tool to improve security in comparison to other tools.¹⁴²

By the end of the decade, information had become a policy focus in its own right, and access had joined security, privacy, and procurement as a key issue to be addressed. Ambitious proposals to address continuing barriers to citizen access and use information emerged in both the executive and legislative branches. The President's Information Technology Advisory Committee called for research on innovative ways to overcome the major technological barriers that prevent citizens from easily accessing government information.¹⁴³ An E-Government bill proposed a structure to strengthen government-wide management of information and citizen access to it.¹⁴⁴

Following September 11, the debate already under way on access intensified. Attorney General John Ashcroft reversed prior policy in favor of disclosure under FOIA, encouraging agencies to carefully consider the various institutional, commercial, and personal privacy reasons for not disclosing information, and provided that "the [U.S.] Department of Justice will defend your decisions unless they lack a sound legal basis . . . ."¹⁴⁵

Supporting Institutions to Provide Data and Analysis

Before information can be used, it must be collected, managed, and disseminated. Institutions need clear legal mandates, policy frameworks, and reliable funding to provide the data. The data in turn needs to be organized to answer the questions for which the public and decisionmakers seek answers. The 1990s saw both a few significant losses and many initiatives by both NGOs and governmental groups to develop new organizations and programs to provide data and analysis in useful forms.

The decade was one of significant loss of governmental capacity to develop and present data in some areas, particularly as Congress sought to cut back reporting by federal agencies in the middle of the decade. The 1995 Federal Reports Sunset and Elimination Act provided that hundreds of federal agency reports—including the annual EQR, required by § 201 of NEPA—no longer needed to be produced unless explicitly requested by Congress.¹⁴⁶ As part of the cost-cutting move, Congress closed its own Office of Technology Assessment, which had pioneered policy analysis of the relation between technology and environmental and social effects.¹⁴⁷ Another loss was the congressional decision to instruct the International Trade Commission to stop producing its report on production and sales of synthetic organic chemicals—which had been published since 1917—on the grounds that it was not essential to ensuring the competitiveness of U.S. industry.¹⁴⁸ The lack of data on production volume by chemical makes it difficult to verify implementation of the treaty on persistent organic pollutants and broader changes regarding chemicals in the marketplace.

Even as these capabilities in generating and analyzing data were being lost, Congress and government agencies recognized the need to strengthen information management, amendments to the PRA in 1996 gave OIRA the lead in improving [32 ELR 10797] information technology management in federal agencies.¹⁴⁹ EPA set up an Office of Environmental Information in 1998 that, in addition to promoting access, seeks to improve management of information and data quality and set up a process for issuing data products. The EPA office still faces the major challenge of determining how to set up a national register of regulated facilities given that the air, water, waste, and toxics programs hold much of the data.

EPA also began to provide some new types of information. It established the Energy Star Program in 1993 to develop a voluntary labeling program that identifies and promotes energy-efficient products that reduce carbon dioxide emissions. It now partners with the U.S. Department of Energy to promote the Energy Star label for homes and businesses. Its website enables a purchaser to locate stores that sell Energy Star appliances, office equipment, lighting, and consumer electronics. It also helps a business benchmark its energy performance and purchase products to improve it. The program estimates that the U.S. energy bill would be reduced by $ 200 billion in a decade if Energy Star labels guided product and building choices.¹⁵⁰ On the materials front, a 1998 Executive Order set up a governmentwide environmentally preferable purchasing program to green the government through waste prevention, recycling, and federal acquisition. Education, training, and information are an important part of the program.¹⁵¹ Efforts to take a broader approach to product labeling that also involves materials have moved slowly. A private group called Green Seal develops labeling standards on the environmental characteristics of products.¹⁵² The Silicon Valley Toxics Coalition publishes an annual report card on the performance of the computer sector, including how they handle their products after use.¹⁵³

EPA also began to develop and organize some environmental data by industrial sector during the 1990s, which make it easier to link environmental data with broad economic and social information. The Office of Enforcement, for example, developed a sector/facility index that presents quarterly data on 640 facilities in 5 industrial sectors on inspections, enforcement actions, chemical releases and spills, as well as demographic data. It allows comparison of performance and trends across sectors.¹⁵⁴ Some researchers are analyzing and presenting environmental data at the sector level in ways that can be used by investors to understand financial risks and opportunities.¹⁵⁵

The Safe Drinking Water Act (SDWA) Amendments of 1996 established the National Drinking Water Contaminant Occurrence Database (NCOD) to provide the necessary data to support the EPA regulatory decisions for identifying pollutants and undertaking further regulatory controls.¹⁵⁶ The NCOD is a searchable, online database that allows people to run queries of raw data on physical, chemical, microbial, and radiological contaminant occurrences in public water systems and other sources.¹⁵⁷ The SDWA Amendments also required owners and operators of public water systems to develop and disseminate consumer confidence reports, which report the levels of pollutants in drinking water, potential health effects of these pollutants, and violations of drinking water standards.¹⁵⁸

The Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000¹⁵⁹ requires the EPA Administrator to create a publicly accessible database on national coastal water pollution occurrence.¹⁶⁰ The BEACH Act also requires prompt local posting of polluted coastal waters.¹⁶¹

Some groups are using the power of the Internet to connect different types of data in ways that focus on policy and individual decisions. The nonprofit Environmental Working Group combines skills in using computers and the web and in working with the media to provide the public with information. Through its website, a citizen can search who gets how much in farm subsidies in what locations and use that information to participate in policy debate. Or a citizen can learn the particular beauty products in which a largely unregulated chemical related to birth defects is used.¹⁶² Another example of efforts to create new sources of information is the call to create a nationwide health tracking network for chronic diseases that account for 70% of U.S. deaths by the group of leaders in health, business, environment, government, and communities convened as the Pew Health Commission. Based on the commission's work, a new group called Trust for America's Health is leading a campaign to develop tools to provide access to information needed to understand and fight threats to the nation's health by providing early warning of clusters of disease and exposure to substances of concern.¹⁶³

On the plus side, during the 1990s government agencies began to reorganize to focus on information management, including facilitating public access. Both government and nonprofit groups experimented with ways to offer information tailored to decisions that citizens and organizations such as investments, product purchases, and where to live and work. However, some basic information and assessment functions—including preparation of the annual state of the environment report—were also seriously hampered by decisions to cut back on government funding. Many types of information citizens need to make choices leading to sustainable development remain uncollected, unavailable, or fragmented and difficult to use.

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Building Partnerships With NGOs on Sustainable Development

From 1993 to 1999, the PCSD convened hundreds of groups and involved thousands of citizens in developing policy ideas and sharing examples of actions that can help put the country on the path to sustainable development. Created under Executive Order No. 12852, the PCSD was charged to advise the president on sustainable development issues, produce a national action strategy, and educate the American public. Although it did not directly address Agenda 21, the PCSD enabled the dialogue with NGOs called for in Chapter 27. Leaders from industry and an NGO chaired the PCSD, which involved nine federal departments as well as members from other levels of government, business, and civic and environmental groups. More than 3,200 people participated in a culminating National Town Meeting for a Sustainable America in Detroit in May 1999, with 100,000 more taking part by satellite.¹⁶⁴

The PCSD provided a model of multi-stakeholder dialogue across government departments and with nongovernmental groups. It crafted a consensus on the meaning of sustainable development and tapping local and regional efforts.¹⁶⁵ The members agreed on 16 statements of belief that were published in the 1996 council report and again in its final report in 1999. The first statement put information, knowledge, and education among the things that must grow (along with jobs, productivity, wages, capital, savings, and profits) to achieve sustainable development. Others addressed equity, collaborative decision processes, the role of communities in making decisions, importance of the free flow information and opportunities for review and redress, and citizen access to education.¹⁶⁶

Over six years, the work of the PCSD helped educate a cross-section of the country's leaders about options for moving toward sustainability. Members reached a belief that "economic, environmental, social futures are linked and must be given equal respect." The PCSD recommended that the president continue support of a council or another body to serve as a forum for high-level leaders from all sectors to consider sustainable development issues.¹⁶⁷ However, no permanent institution was established, and an interagency work group formed to build the results of the PCSD's work into policy made little progress. The United States has no formal, broad dialogue on sustainable development at the national level. U.S. Department of State (State Department) officials have conferred on an ad hoc basis with NGOs about plans for the 2002 World Summit on Sustainable Development (WSSD). Since the U.S. government has not established a preparatory committee for the WSSD, U.S. civil society groups have formed a U.S. Citizens Preparatory Committee for the World Summit.¹⁶⁸

Including More Voices in Making Decisions

Chapter 27 of Agenda 21 highlights the important role of independent NGOs in forging a sense of purpose and bringing a wide range of voices to the debate. Rio Principle22 particularly stresses the importance of broad participation in decisions by indigenous people and local communities. In the United States, the struggle to include more voices in decisionmaking advanced largely under the rubric of environmental justice during the 1990s. It focused on broadening participation in decisions to site hazardous facilities, use tribal resources, and set the research agenda. The roles of communities also increased as they became a focus for "place-based" approaches.¹⁶⁹

The environmental justice movement is rooted in the campaigns by minority and low-income groups challenging the fairness of siting hazardous waste facilities in the 1980s and also in Native American efforts to protect tribal natural resources and sacred sites. A 1994 Executive Order required each federal agency to make achieving environmental justice part of its mission and to develop a strategy that addresses disproportionately high and adverse human health or environmental effects of its programs on minority and on low-income populations. The Executive Order also calls for environmental health research that includes minority and low-income people and workers as well as collection, management, and analysis of information assessing and comparing environmental and health risks by race, national origin, and income.¹⁷⁰ Other Executive Orders ensured Native Americans access to and ceremonial use of Indian sacred sites and set out a process of consultation and coordination with Indian tribal governments.¹⁷¹

Actions by EPA provide one example of how the policy has been institutionalized.¹⁷² EPA established an Environmental Justice Office and an American Indian Environmental Office. The Agency produced a strategy in 1995 and an implementation plan in 1997. It has also formed a National Environmental Justice Advisory Council of representatives from academia, business, and state, tribal, and local governments as well as environmental and community groups. In 1998, EPA issued guidance to incorporate environmental justice into the EIA process.¹⁷³ The Agency's strategic plan includes performance measures for community outreach such as increasing the number of environmental justice grants. In its small grants program, EPA has allocated over 800 environmental justice grants of between $ 10,000 and $ 20,000 to local groups since 1994.¹⁷⁴ EPA's new Administrator confirmed EPA's Indian policy and its commitment to environmental justice in the summer of 2001, stating that [32 ELR 10799] "environmental justice is achieved when everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work."¹⁷⁵

NGOs such as the Physicians for Social Responsibility, the Union of Concerned Scientists, and the Center for Science in the Public Interest have long tried to broaden the citizen role in scientific decisions. For example, they have urged the National Academy of Sciences to make greater efforts to obtain balance on its committees.¹⁷⁶

The voices heard in setting and implementing the research agenda remain limited. Congressional hearings on post-cold war directions for U.S. science policy included no one from environmental, defense conversion, or labor organizations to comment on legislation with major ecological, employment, and other social implications, a Science magazine editorial pointed out.¹⁷⁷ Richard Sclove, then director of the Loka Institute, argued in the editorial that elite approaches are antithetical to the open, vigorous, and creative public debate on which democracy, policymaking, and science all thrive. During the decade, the nonprofit Loka Institute demonstrated the potential of models for community participation such as citizen panels and science workshops. It also supported a Community Research Network that promotes community-based research.¹⁷⁸

While the steps taken to institutionalize participation by all groups regardless of race, culture, or income survived a change in Administrations, a broader role for citizens in setting the research agenda and carrying out research continue to face scarce funding and limited access to information.¹⁷⁹

Using Collaborative Approaches

U.S. NGOs and policymakers also focused in the 1990s on developing processes that brought more voices to the table but also offered alternatives to lengthy and costly regulatory decisions that often result in litigation. The PCSD was one of many groups that has concluded: "We need a new collaborative decision process that leads to better decisions; more rapid change; and more sensible use of human, natural, and financial resources in achieving our goals."¹⁸⁰

Experience with a variety of forms of dispute resolution in the environmental arena had grown throughout the 1970s and 1980s. Some of the experience was with local disputes while others involved multiple government agencies and interest groups.¹⁸¹ Legislation adopted in 1996 stated in its findings that alternative dispute resolution can lead to more creative, efficient, and sensible outcomes. The law promotes its use by requiring government agencies to adopt policies on use of alternative means of dispute resolution, designate specialists, and provide training.¹⁸² This law also reauthorized earlier legislation that empowers federal agencies to use negotiation in adopting regulations.¹⁸³

While most decisions continue to use standard participation practices, a number of highly visible stakeholder processes used collaborative processes to address ways to improve environmental management and other policy issues during the 1990s. At the local level, a range of approaches to dialogue emerged. Chemical companies organized advisory groups. Community, labor, and environmental groups engaged companies in good neighbor agreements.¹⁸⁴

Researchers also began to address some of the questions about the effectiveness of stakeholder processes. Resources for the Future, for example, examined the quality of decisions in over 200 cases of stakeholder involvement in environmental and natural resource management at all levels of government. The study found evidence that the processes improved decisions by adding new information, ideas, and analysis.¹⁸⁵

By the end of the decade, EPA was one agency that acknowledged lessons learned about public participation. It amended regulations to broaden participation in waste facility permitting decisions.¹⁸⁶ It revised its policy on public participation, dating from 1981. In addition to changes in federal laws, regulations, and Executive Orders, EPA drafters drew on experience with new participation techniques, new communication channels such as the Internet, and increased experience with technical assistance for communities and partnerships with state, tribal, and local governments and nonprofit groups.¹⁸⁷ It established a center to encourage [32 ELR 10800] Agency use of alternative means of dispute resolution. It tested increased use of the Internet. The Agency held a two-week online discussion as a complement to its formal commenting process on the Public Involvement Policy. The dialogue demonstrated the potential of online exchange to involve larger numbers of people in more intensive exchange than traditional notice-and-comment processes.¹⁸⁸

Evolution of Access to Justice

When Congress incorporated citizen suit provisions in the various environmental laws passed in the 1970s and 1980s, it acknowledged the importance of citizens and NGOs in complementing federal and state enforcement of environmental laws.¹⁸⁹ Congress recognized that politics and limited resources could mean that environmental violations are not addressed, so they "deputized" citizens and NGOs as "private attorneys general" to pursue violations that government agencies could not or would not prosecute.¹⁹⁰

The need for such a complementary role for enforcement of environmental laws through citizen suits has been highlighted by the recent decline in the environmental cases brought by the federal government.¹⁹¹ This lack of enforcement has enabled a significant number of facilities to operate in chronic violation of environmental laws.¹⁹²

Environmental standing doctrine in the U.S. Supreme Court dates back to the landmark 1972 case of Sierra Club v. Morton,¹⁹³ which recognized "aesthetic, conservational, and recreational as well as economic values" as cognizable interests protected by environmental laws and consistent with constitutional jurisprudence.¹⁹⁴ Moreover, these interests may be widely shared with other members of the public.¹⁹⁵

Following a 1973 case that also took a broad view of standing,¹⁹⁶ Supreme Court cases up until 2000 steadily narrowed the grounds under which citizens and NGOs could invoke citizen suit provisions. Statutes empowering citizen access to justice, the Court held, still had to comply with separation-of-powers provisions in the U.S. Constitution, and the Court applied increasingly narrow interpretations to limit access to courts in environmental matters.¹⁹⁷

In 1987, the Court held that the CWA citizen suit provision could not be used to address violations that were entirely in the past.¹⁹⁸ To maintain a citizen suit, citizens or an NGO must make a good-faith allegation of an ongoing violation or a past violation that was "capable of repetition yet [32 ELR 10801] evading review." This decision was largely a matter of statutory interpretation.¹⁹⁹

In 1990, the Court in Lujan v. National Wildlife Federation²⁰⁰ held that citizens who enjoyed federal lands "in the vicinity of" other federal lands that would be affected by land use decisions lacked standing to challenge the decisions.²⁰¹ Two years later, the Court again rejected standing of members of an environmental organization seeking to challenge U.S. funding of international development projects that could harm threatened species. In Lujan v. Defenders of Wildlife,²⁰² the Court held that the citizen-plaintiffs had to be directly affected, and the impacts had to be actual or imminent.²⁰³ Although the plaintiffs had visited the threatened animals in the wild, intended to return to see them at some point, and the projects in question threatened the animals' habitat, the Court held that "such 'some day' intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the 'actual or imminent' injury that our cases require."²⁰⁴

Thus, at the time of the 1992 Earth Summit, the Court had held in National Wildlife Federation and Defenders of Wildlife that for citizens to have access to courts they needed to prove that they had (1) suffered an actual or imminent injury in fact which was (2) due to the defendant's action or inaction and (3) was redressible by court action.²⁰⁵ To avoid judicial review of "generalized grievances" that could implicate separation-of-powers concerns,²⁰⁶ the Court adopted a skeptical view of injuries claimed by environmental plaintiffs, requiring concrete, particularized, and imminent (or actual) injuries.

In 1997, the Court held that ranchers and irrigation districts had standing under environmental laws to challenge a decision by the Bureau of Reclamation under the ESA to cease releases of water from a reservoir in order to protect endangered fish.²⁰⁷ In this case, the Court expanded the prudential "zone-of-interest" test for standing to allow all economic interests to have access to justice, not only those that would protect the endangered fish, the specific object of the ESA.²⁰⁸

In 1998, the Court held that citizens lacked standing to sue a company for violations of EPCRA when the defendant completed and filed the TRI forms after they received the notice of intent to sue and the date the complaint was actually filed.²⁰⁹ In Steel Co. v. Citizens for a Better Environment,²¹⁰ the Court held that civil penalties paid to the U.S. Treasury, and not to the defendant, was an insufficient interest to grant the citizens standing for wholly past violations; thus the injury was not redressible by court action. Subsequently, legal scholars noted that this decision does little to discourage environmental compliance, since the defendant can moot a citizen suit simply by coming into compliance once the notice of intent to sue is filed.²¹¹ While such a strategy could blunt the effectiveness of citizen suits, it would be a risky business proposition since state and federal governments could still prosecute the violations. That is, while coming in to compliance could moot a citizen suit, it would not affect the fact of liability in a suit brought by a government agency.

Two recent standing cases—one environmental and one nonenvironmental—provide countervailing precedents that collectively serve to broaden standing rights. In 1998, the Court held that plaintiffs had standing to bring a citizen suit challenging a decision of the Federal Election Commission (FEC) that the American Israel Political Affairs Committee (AIPAC) was not a "political committee" under federal law and thus did not have to file public reports that would otherwise be required.²¹² Although the plaintiffs shared their injury with the generalized public—an inability to obtain lists of AIPAC donors and information on campaign contributions—the Court upheld the citizens' standing to seek the information. This case, and its strong language recognizing information injury,²¹³ bodes well for environmental plaintiffs seeking to ensure public access to environmental information under federal statutes.²¹⁴

In 2000, the Court issued the first case in 17 years that broadened environmental standing—Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.²¹⁵ In [32 ELR 10802] Laidlaw, a company discharging pollutants into the North Tyger River violated the effluent limitations in its permit 489 times between 1987 and 1995, and the emission, monitoring, and reporting violations continued after the suit had been initiated.²¹⁶ The district court held the company liable, although when it determined the amount of the penalty it factored into its calculus that "there [was] 'no demonstrated proof of harm to the environment'" from the permit violations.²¹⁷ The defendant challenged the standing of the plaintiffs, arguing that there was no demonstrated injury and no redressibility since the civil penalties were for violations that had been corrected by the time the district court issued its judgment.²¹⁸

The Court upheld both the injury-in-fact and redressibility claims of the plaintiff. It observed that "the relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff."²¹⁹ Since the plaintiffs knew of the violations and had accordingly curtailed their use and enjoyment of the river out of concern for their health, the Court held that they had satisfied the injury-in-fact prong of standing.²²⁰ The Court also held that the harm was redressible by civil penalties,since "a defendant once hit in its pocketbook will surely think twice before polluting again."²²¹

While these two holdings relating bolster environmental standing doctrine, the Court opened the door to further weakening of citizen suits on mootness grounds. Before Laidlaw, it was settled case law that nothing a defendant did to come into compliance after the filing of a complaint could moot a case.²²² In Laidlaw, the Court held that a defendant could moot claims for civil penalties under a citizen suit if it can show that it is "absolutely clear" that a violation "could not reasonably be expected to recur."²²³

Although the Court did not go into detail, Laidlaw also gave some tentative reinforcement to the "catalyst theory" of citizen suits, which allowed the grant of attorney fees when a citizen suit prompts compliance by the defendant even if this is done without a formal judicial decree.²²⁴ But this theory was subsequently rejected in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Services.²²⁵

While the Court distinguished Steel Co. on its facts, as applying to wholly past violations, Laidlaw appears to represent a significant new direction.²²⁶ At the same time, as Prof. Craig Johnston notes, there remain a number of unresolved issues in environmental standing: it is unclear how close a plaintiff must be to the source of pollution to satisfy injury-in-fact, i.e., for the plaintiff's fear of injury to be reasonable; it is unclear how much weight to afford the presumption of injury for specific uses; the "catalyst theory" for attorney fees awaits clarification; Article II issues still remain largely unaddressed; and there remains the troublesome implication that "whether penalties are sufficiently likely to deter future violations" depends on "whether corrective measures are taken the day before or the day after the filing of the complaint."²²⁷

In light of these numerous unresolved issues and the Court's nearly two decades of antipathy to citizen enforcement of environmental laws, it would seem premature to declare public interest environmental standing to be secure. Indeed, even under Laidlaw citizens and NGOs need to satisfy numerous requirements. Moreover, due to the supplemental role that citizen suits play, state and federal government agencies can preclude citizen suits by prosecuting or settling the case themselves.²²⁸

In addition to limiting access to courts through Article III, the U.S. federal courts have construed the Eleventh Amendment (limiting suits against states) to prohibit citizen suits against states. For example, in Vermont Agency of Natural Resources v. United States ex rel. Stevens,²²⁹ the Court prohibited a qui tam action by citizens under the Federal Tort Claims Act against states and state agencies. In Bragg v. West Virginia Coal Ass'n,²³⁰ the U.S. Court of Appeals for [32 ELR 10803] the Fourth Circuit held that state sovereign immunity barred citizens from suing West Virginia state officials in federal court for alleged violations of the Surface Mining Control and Reclamation Act (SMCRA), specifically the granting of mountaintop mining permits. The court held that citizens had to sue in a West Virginia state court. This decision could limit access to justice, as most state courts (including West Virginia) have elected judges and are more susceptible to political pressures.

Institutionally, U.S. and state environmental agencies have adopted a variety of mechanisms to assist citizens in protecting their environmental rights. For example, telephone hotlines have been established to allow citizens to report environmental violations.²³¹

Contributing to International Capacity

In the decade since the 1992 Earth Summit, the United States has had mixed experiences in promoting transparency, participation, and accountability in the region and around the world. The United States played a critical role in advocating for the development of the North American Agreement on Environmental Cooperation (NAAEC) and the mechanisms for citizen participation (including the citizen submission process).²³² In many instances, the United States also defended the North American Commission for Environmental Cooperation (CEC) and the citizen submission process from periodic attacks,²³³ although the CEC continues to suffer from inadequate funding. The United States was also actively engaged in the development and adoption of the nonbinding 2000 Inter-American Strategy for the Promotion of Public Participation in Decision-making for Sustainable Development.²³⁴ Through the U.S. Agency for International Development (USAID), the United States has also fostered sustainability through changes in policy, law, and practice of public participation and access to information in many nations.²³⁵ In 1998, the United States and other governments negotiating the Free Trade Area of the Americas created the Committee of Government Representatives for the Participation of Civil Society (CGR), the first such international committee established to engage NGOs in the multilateral trade negotiations.²³⁶

The United States has been more reluctant to become involved in the development of regional and international instruments that could impose binding obligations, even when the United States has already implemented the commitments. For example, the United States is a member of the UNECE, but it had only a minimal role in the negotiation of the Aarhus Convention.²³⁷ Moreover, the United States did not sign the convention and U.S. statements to date indicate that it is unlikely to accede to or ratify the convention.²³⁸ Similarly, in the process leading up to the WSSD, the United States has advanced improved transparency, participation, and rule of law as essential to development by creating conditions favorable for private investment. Yet, at PrepCom II, the U.S. delegation objected to the possibility of a multilateral framework agreement on public access to information, participation, and justice.

A Snapshot Since Rio

How does the U.S. performance over the past 10 years measure up to the goals set in Rio? For the United States, the most significant change is widespread access to information through the Internet. At the beginning of the decade, the first database legally mandated to be available to the public had just begun to operate. By the end, the Internet was the primary mode of both delivery and access. Between 1997 and 2001, the number of visits to the http://www.epa.gov website grew from a monthly average of 9.7 million to 122 million.²³⁹ The result was much more information for many more people. To a large extent, a person hundreds, or even thousands, of miles away could obtain information as easily as someone in a national or state capital, a big step toward equalizing access. And one no longer had to be an expert to locate and use much government data. Integrated frameworks with standardized data began to make much more information useful across disciplines and for the public as well, not only technical experts. Many data relating to health and environment began to be actively disseminated rather than available only on request. Thus the United States took major strides toward recognizing that "in sustainable development, everyone is a user and provider of information," as Agenda 21's chapter on information declares.

The United States had basic laws providing access to information, participation, and justice in place in 1992. Overall, change in access was not measured primarily in the number of new laws adopted during the 1990s, as had been the case in the 1970s and 1980s, although a few important [32 ELR 10804] measures were adopted. They include the electronic FOIA and amendments to the SDWA that require water suppliers to provide their customers information about the quality of their drinking water. Instead, the typical markers were new information tools or organizational changes. Environmental Defense's Scorecard website allowed a resident to find emissions from factories or power plants in his or her community. EPA formed an Office of Environmental Information and appointed a chief information officer. Some nongovernmental initiatives began to bridge a wider set of concerns. Consumer and environmental groups joined to address water and food quality issues. A coalition of labor, environmental, and human rights groups worked toward legislation that would require U.S. companies to report on their facilities' performance, regardless of location.²⁴⁰ New laws that were adopted frequently included public information as a key provision. For example, a law to strengthen efforts to clean up contaminated waste sites included a public record of brownfields sites and encouraged public participation in cleanup.²⁴¹ At the same time, debate over the availability of some information such as accident scenarios grew. A new Administration presented a more conservative interpretation of FOIA and use of national security as an exemption intensified after the terrorist attacks of September 11.

The extent and thoroughness of analysis of information declined in some cases. With the demise of regular state of the environment reports and of the Office of Technology Assessment, two of the most important methods of meeting Agenda 21's goals of integrating information were lost. Although an independent GRI developed a broader corporate sustainability framework, EPA did not complete its attempt to develop a standardized approach to identifying facilities and organizing data on industrialized facilities, which would greatly aid analysis.

Some new voices entered the discussion but evaluations also found a need for improvement. A review of the implementation of the 1994 Executive Order on environmental justice found that agencies "have clearly made substantial progress to increase, improve, or refine public participation in information gathering and dissemination, if not in decisionmaking."²⁴² They have held workshops, published material in more languages, and provided computers and technical training; but few agencies have yet to make regular, comprehensive assessments of their progress in implementing the Executive Order.²⁴³ Numerous initiatives sought to bring stakeholders together to develop new approaches to environmental management in communities and companies and at all levels of government.²⁴⁴ A continuing barrier was the lack of standardized information to track performance.²⁴⁵ An examination of implementation of the effect of the FACA found that the process worked best for engaging interest groups on high-profile decisions. In contrast, committees established under the law were less effective on site-specific and regional levels in meeting goals of participation such as education, building trust, and resolving conflicts.²⁴⁶ An evaluation of efforts to reform the permitting process found that the complexity and invisibility of the process of permitting facilities hinders public participation.²⁴⁷

On the access to justice front, the courts narrowed citizens' and NGOs' ability to sue for environmental violations by limiting standing, prohibiting suits against state authorities, and constraining suits against past violations. Similarly, courts moved to limit the extent to which citizens could bring environmental justice suits.²⁴⁸

The 1990s saw much activity that may eventually contribute to integrating economic, environmental, and social decisionmaking. The PCSD provided a forum for building common ground for much of the decade. It documented many initiatives and identified solutions with economic, social, and environmental benefits. However, the United States took no steps to establish policies and structures to carry them out. It did not establish a continuing focus for dialogue with nongovernmental groups on sustainable development. Nor did it adopt indicators to track sustainable development.

Recommendations

The terrorist attacks of September 11 and a less robust economy have reshaped the context in which the United States will develop the next generation of policies on public access to information, decisionmaking, and justice. In contrast to the 1990s, trust in government and some forms of civic engagement have soared, at least momentarily.²⁴⁹ Although the technology speculation bubble burst, initiatives to apply electronic technology to improving the flow of information continue. The power of information to make the connections needed to move toward a more sustainable world is growing. For instance, information about the conditions under which timber is harvested has begun to enable manufacturers and purchasers of wood products to support improved forestry practices.²⁵⁰ As the public debate grows on access in a time of heightened national security, advocates point out that public access to information enables the public to protect [32 ELR 10805] themselves and the environment. Access can reduce risks by providing information that spurs public awareness to, for example, use less dangerous materials. As the Washington Post concluded in an editorial, "against terrorism, and against other dangers, too, an alert and informed public is frequently the best defense."²⁵¹ In this changed setting, the United States can draw on the experience garnered in the last decade to take seven steps to put information and the citizen at the center of action to achieve sustainability at home and internationally.²⁵²

Develop and Use Indicators of Sustainable Development That Include Public Access to Information, Decisionmaking, and Justice

The WSSD offers an opportunity to take concrete steps toward developing and using indicators of sustainable development in the United States. The last decade has seen much research and experimentation on indicators.²⁵³ Government leaders at a UNECE preparatory session highlighted the importance of indicators in reviewing progress and welcomed efforts to develop them. After spelling out summit goals such as eradicating poverty, securing human health, and protecting the environment, the U.S. representative said: "It is not enough to espouse laudable goals without providing the means for their realization. Otherwise, sustainable development would become nothing more than rhetoric. That is why we believe governance in all of its institutional and decision-making aspects is one of the central themes of our ministerial statement."²⁵⁴ She stressed the need for infrastructure to promote trade and manage domestic finances, effective and fair administrative and judicial bodies, public access to information, science-based decisionmaking, public participation, and access to justice and enforcement. She concluded: "The governance agenda is not about lecturing; it is about building partnerships to get results, domestically, bilaterally, regionally, and globally."

Given the emphasis on the role of governance in sustainable development, a natural starting place for the United States in adopting indicators for sustainable development is public access to information, decisionmaking, and justice. The United States can demonstrate that it is practicing what it is asking of the rest of the world by adopting and regularly reporting on indicators of public access at home. It can draw on both governmental and civil society experience in developing access indicators. Pursuant to the GPRA, for instance, EPA's goal on information aims to improve the ability of the American public to participate in the protection of human health and the environment, as one objective. It does this by increasing the quality and quantity of education, outreach, and data, particularly with regard to disproportionately impacted and disadvantaged communities. Among its measures are the number of grants provided to and the number of public meetings held in low-income and minority communities.²⁵⁵

NGOs can also bring some initial experience with access indicators to the table. Twenty-five civil society groups are testing indicators of law, policy, and practice in providing access to environmental information, decisionmaking, and justice in nine countries including the United States. Working with the Access Initiative, the Environmental Law Institute has assessed the U.S. national legal structures. The first round U.S. assessment also examined practices in two states, with the Silicon Valley Toxics Coalition taking the lead in California and Ohio Citizen Action in Ohio.²⁵⁶ Led by the World Resources Institute and a core team from Chile, Hungary, Thailand, and Uganda, the Access Initiative will publish a global report based on the country assessments of public access for use at the Johannesburg Summit. The Access Initiative's first set of indicators cover the legal structure; access to information about emergencies, air and water quality monitoring, industrial releases to the environment, and the state of the environment; participation in policy, project, and operational decisionmaking; access to justice; and capacity-building.

Supporting a broad public role in developing and tracking indicators of public access could raise public interest in the process of developing a set of national indicators to track sustainable development. So can building on the work of [32 ELR 10806] citizen groups on issues such as food, fresh water, health, production and consumption systems, and energy and climate. Indicators are indispensable, the National Academy's Board on Sustainable Development noted.²⁵⁷ The United States can use the Johannesburg Summit as an impetus to take this step to improve governance at home as well as internationally.

Develop and Use Environmental Indicators and Publish an Annual State of the Environment Report

Agenda 21 calls for integrated economic, social, and environmental decisionmaking. The U.S. effort to develop indicators and other structures for integrated decisionmaking is hindered by the weakness of the environmental leg. Although the United States has large amounts of environmental data, it has no independent bureau of environmental statistics, no agreed environmental indicators, and in recent years no regular state of the environment report has been issued to interpret and analyze the data. In contrast, the Bureau of Economic Analysis publishes regular reports of U.S. economic performance, using well-known indicators, and the Council of Economic Advisors publishes an annual report. Numerous studies have suggested ways to improve U.S. environmental data. A National Academy of Public Administration report issued in 1995 spelled out key tasks, such as creating guidelines for data collection; collecting, analyzing, and reporting comprehensive statistics on environmental quality; assessing data needs; and helping disseminate information.²⁵⁸

EPA is taking steps to strengthen environmental data and develop indicators. It has established an Office of Environmental Information. Administrator Christine Todd Whitman has asked that office to lead, with the Office of Research and Development, an environmental indicators initiative. The Agency's strategy also commits to producing a state of the environment. EPA's chief information officer describes the role of the report as telling

a story of national conditions based on a suite of appropriate indicators which are used to answer questions about the environment. . . . When environmental indicators, questions, and issues are connected, it will be possible to assess trends in environmental conditions, and the relationships between environmental stressors, conditions, and public health. Decision makers can then use this informationto determine whether or not the investments made in environmental policies have in fact delivered the intended results.²⁵⁹

Lacking the governmentwide reach of the Council on Environmental Quality, which NEPA charged with developing the state of the environment report, EPA will need to work not only across agency programs, a major challenge in itself, but with other government agencies and levels of government. It can also collaborate with independent institutions that have experience in developing and using indicators, as well as members of the press and civil society, in order to develop a widely accepted set of indicators. Material resource flows and ecosystem conditions are two examples of opportunities to build on research conducted by other government agencies or independent organizations during the 1990s.²⁶⁰

Developing and using more efficient and safer flows of materials is a key path to sustainable development. Research by agencies such as the U.S. Geological Survey and other agencies through an Interagency Committee on Materials as well as by a team of independent institutions provides analysis that is useful in developing the background data and indicators. While EPA programs address materials at the level of individual substances and wastes and the Geological Survey tracks some materials, particularly minerals, no government agencies now keep physical accounts of material flows entering and leaving the economy at the national level parallel to national economic accounts. Natural resource endowments such as minerals or timber on federal lands or recreational assets are not part of economic accounts. Nor are the costs of natural resource depletion and waste generation. As a result, the United States lacks the "big picture" of both the environmental and economic implications of how it uses materials regionally and nationally.²⁶¹ Physical accounts would serve as the basis for indicators that track total material inputs and total outputs. These in turn could be used to support integrated indicators such as material flows per unit of GDP or per person. Indicators might also be developed for categories of flows by potential environmental impact; for example, persistent materials entering the environment. In addition, they could support expansion of U.S. economic accounts to include environmental capital.

Many groups have proposed approaches to developing ecological indicators.²⁶² At the national level, the Heinz Center issued a report in 1999 regarding the state of the nation's ecosystems; the center is now working on core measures focusing on ecosystem dimensions, chemical and [32 ELR 10807] physical conditions, plants and animals, and human use. Several international institutions, in 2001, joined in a pilot analysis of the conditions of global ecosystems. The study examines the goods and services that ecosystems produce, such as food and fiber, water quality and quantity, carbon storage, shoreline protection, and wood fuel production and rates the condition of ecosystem types at one of six levels, indicating whether capacity is increasing, decreasing, or unknown.²⁶³ Measures of the state of ecosystems and material flows will be important contributions to indicators for sustainable development.

Adopt a New Generation of Information Access Principles

The United States needs a set of principles that reflect the significant role of information in enabling the public to make decisions that advance sustainable development. Fast, inexpensive computer processing and communication through the Internet has increased the focus on access and use of information. So has September 11. The principles should be developed through a broad-based debate that includes government at all levels, business, and NGOs working on information, civil rights, environmental, and other issues. Some NGOs have already suggested starting points, in OMB Watch's Citizen's Platform for Our Environmental Right-to-Know. This agenda for access, which focuses on environmental and health information, starts from the premise that in a democracy all members of the public have an enforceable right to access to government information at low or no cost. It likens the collecting and providing of information to a core governmental function as basic as fire protection. It suggests that those who seek to withhold information carry the burden of proof to justify their position.²⁶⁴

The electronic FOIA was an important step toward moving the law into the electronic era by applying FOIA to electronic documents. However, the U.S. legal structure predates the Internet and September 11. It reflects the many separate governmental programs focused on individual issues with no specific mandate to disseminate information in useful ways to the public and little guidance on how to approach limitations on access in the face of terrorism. As attention has turned to improving domestic security, some information has been removed from the web and access to some databases restricted.²⁶⁵ The first steps were unilateral, taken without consistent criteria, and may have lacked a statutory mandate. They did not provide for public input. More recently, some agencies such as EPA have begun to consider criteria for identifying sensitive information including the type, specificity, connectivity, and availability of the information.²⁶⁶

New legislation could help provide clearer leadership and priority to information policy across all government agencies. The Bush Administration created a new position of associate director for information technology and e-government in 2001. The proposed E-Government Act²⁶⁷ would create a new Office of Electronic Government within the OMB. It would set up processes to develop standards for assuring permanent public access to information and for cataloguing and indexing governmental data. It would also create pilots for data integration and public access.²⁶⁸

As noted above, the U.S. legal structure provides no constitutional or human right of access to information.²⁶⁹ Without such a basic right, access depends on individual laws and is vulnerable to political winds. The debate on access principles could stimulate a longer term debate on the merits of establishing a constitutional right to information. Developing international norms can also provide insights in the debate.

Organize and Deliver Data in Ways Useful to the Public

Practical efforts to organize and deliver the data in ways useful to the public need to proceed in parallel with debate over basic principles and efforts to strengthen government leadership on information, including access issues. If sustainable development is to be achieved, people need information that allows them to factor environmental, social, and cost considerations easily into their decisions whether at work, in everyday life as a consumer, commuter, or as a citizen participating in public affairs. Initiatives in the 1990s urged government to use information strategically and aggressively provide information to the public on environmental issues.²⁷⁰ Agencies began to demonstrate new tools for collecting, organizing, and delivering data to the public and policymakers but much remains to be done to get the needed kinds of information on the same screen to feed into decisions. The president's task force on electronic government released a strategy in early 2002 that focuses primarily on making transactions with the government work better.²⁷¹ While improving the way services are delivered is important, access to information also needs to be addressed.

The federal government launched the FirstGov Internet portal in 2000 to enable citizens to start their search for governmental information at a single point. Next steps include linking the site to state and local government sites and further organizing information in ways useful to citizens; for [32 ELR 10808] example, by geographic region. Funding should encourage cross-agency collaboration in delivering information and training to government staff and citizens. Financing also should support long-term research, recommended by the President's Information Technology Advisory Committee, to investigate how to present a coherent view of the different sets of information that currently are stored in radically varied ways on systems created and optimized for different specific purposes and technologies.²⁷² Government should work closely with NGOs, which have played a key role in demonstrating how information can be made accessible, to improve access to information over the Internet.

The often overwhelming amounts of information raise the importance of tools that help interpret, organize, and link the pieces of information. The advent and spread of technologies such as geographic information systems (GIS) and the Internet provide dramatic new possibilities for organizing and disseminating information. Citizens can track national trends or use website calculators to incorporate environmental and health factors as well as cost into their choices about how to travel or what to buy.

Web-based tools can help both individuals and organizations tailor information to a particular context, assisting them in making decisions that lead to environmental and economic benefits. For example, Nutrientnet's demonstration site allows a farmer to test how a market in nutrient reduction credits could help cut costs and improve water quality by reducing discharges of phosphorous.²⁷³ A website known as Safe-Climate.Net offers employees and their organizations an opportunity to estimate their carbon dioxide footprints and develop strategies, make commitments, and track progress in reducing their greenhouse gas emissions.²⁷⁴ Moving tools such as these into common use will require increasing support for development (including efforts to ensure consistency in approaches among tools), demonstration, evaluation, and widespread education and training for users in sectors such as agriculture and transportation.

Missing environmental data and the fragmentation of existing data continue to make it difficult to understand the big picture and link environmental information with economic and social data. Although EPA has started organizing some data by sector and watershed, many data are not collected, organized, and disseminated in ways that work easily for either the reporter or the user. One example is information about facilities. Still divided among at least a dozen not easily linked databases, facility information about water, air, and waste continues to be difficult to link without a single facility identification number for reporting facilities.²⁷⁵ Research, demonstration projects, and multi-stakeholder dialogues over the past decade explain the need to integrate facility data and lay out ways to develop a coherent approach more effective at identifying, reducing, and controlling flows through facilities.²⁷⁶ In the fall of 2001, a multi-stakeholder group identified establishing an integrated, multimedia data collection, reporting, and dissemination system as a key priority in a letter to EPA Administrator Whitman. The group stressed the importance of involving the users in designing the system. It suggested a joint task force of environmental and information managers from the regulated community, citizen representatives, and state regulators could work with EPA program managers to determine core data elements for the system. The result would be better data for tracking compliance, measuring performance, and preventing pollution. It would also increase a citizen's ability to integrate information into individual decisions about where to live or what position to take on a public policy issue. It would also lead to a reduction in the cost of reporting for facilities.²⁷⁷

Establish a Forum to Engage Citizens in Sustainable Development Issues

The United States should establish a national forum to engage the public on sustainable development. Like sustainable development indicators, a forum should be closely tied to broader initiatives on governance such as developing a strategy and establishing an institutional structure. A forum might choose to focus its work in one or more of the five ways Prof. John Dernbach suggests for developing a strategy based on national priorities.²⁷⁸ These sometimes over-lapping approaches include the greatest risks from unsustainable development such as climate change or loss of biodiversity; international treaty obligations; cross-cutting themes such as material and energy flows; programs to link environment with other sectors such as agriculture; or the PCSD recommendations.

A forum could also draw on the experience of environmental justice groups, participants in the WSSD, and organizations working at the local and state level. With 50 different "state laboratories" and innumerable local "laboratories," the past decade has seen a wide range of efforts to improve public access to information through strong public access laws, linking public health and environmental quality [32 ELR 10809] data, and other innovations. The work of the Center for Neighborhood Technology offers examples in water quality, transport, housing, and communications. The Loka Institute provides examples of democratizing science and technology research.²⁷⁹ A forum could take the lead with local and state associations in assessing which initiatives might be appropriately scaled up to the national level and what actions might be needed to avoid inhibiting state level action.²⁸⁰ Members could also look at incentives that Congress and governmental agencies might use to foster the development of new approaches, such as developing a dedicated fund to finance pilot initiatives.

Strengthen Public Access to Justice

As discussed above, the general trend in the past decade has been to restrict public access to courts.²⁸¹ There have been some promising developments of late, but in large measure the decisions issued since 1973 evidence a steady narrowing of standing in citizen suits, in the ability of individuals to sue state authorities that violate environmental laws, and in the extent to which citizens and NGOs can seek to deter future wrongful conduct by supplementing government prosecution.

Accordingly, in the long term, a constitutional amendment may be necessary to remedy separation-of-powers and states-rights concerns and to ensure access to justice.²⁸² In the meantime, however, as new environmental legislation is adopted and old legislation reauthorized, Congress could strengthen citizen suit provisions by phrasing them, as appropriate, to not only be "forward looking" but to also address and deter future environmental violations by redressing past violations. Such a provision would parallel the construction of the CAA (which requires the defendant to be in violation of or to have violated the Act) rather than the CWA (which requires the defendant to be in violation of the Act and thus requires an ongoing violation).²⁸³ The federal government can also encourage states to adopt citizen suit provisions into their statutory codes; for example, by requiring same as a condition for receiving federal funds for environmental programs.²⁸⁴ Congress can also expand funding opportunities for community groups that seek redress in state or federal courts. Finally, Congress and the federal agencies can strengthen opportunities for citizens and NGOs to seek administrative review by expanding the grounds upon which review may be sought.

Provide International Leadership

The United States should play a lead role in promoting transparency, public participation, and accountability internationally. Building upon its history as a democratic nation and its modern experiences in giving citizens a voice in decisions that can affect them, the United States is uniquely positioned to assist other nations and international institutions in implementing Rio Principle 10.

On numerous occasions leading up to the WSSD, the State Department has observed the critical role that transparency, accountability, rule of law, and public participation have in promoting sustainable development generally, and in particular in attracting private sector investment.²⁸⁵ The United States should promote public involvement internationally through its moral suasion, technical expertise, and financial assistance.

The United States can do this by playing an active role in the partnership for participation aimed at implementing Principle 10, coming out of the summit process. Through the partnership, the United States can work with other governments, intergovernmental organizations, NGOs, multilateral development banks, and foundations to build public participation systems and address country-specific priorities. The partners are expected to endorse the common elements of a national participation system drawn from the experience of the Access Initiative. National governments are expected to collaborate with other stakeholders to identify priorities, plan, and implement action and base their priorities and actions on assessments conducted by national NGOs using indicators developed through the Access Initiative. Donors would commit to support capacity-building of government officials and of NGOs to track progress. Financing institutions would commit to applying the participation system to their operations and activities funded by them.²⁸⁶

As the agenda for the summit is developed, the United States has the opportunity to ensure that transparency, participation, and accountability figure prominently. One way to accomplish this is through the consensus document, which is likely to be a declaration of principles similar to the [32 ELR 10810] Rio Declaration and the Stockholm Declaration. The United States could advance language for the Johannesburg Declaration—or whatever it is ultimately titled—that reaffirms international commitment to Rio Principle 10; provides more specific guidance on the meaning of access to information, participation, and justice; extends Principle 10 to international institutions (including the U.N. system); and recognizes that Principle 10 should not be limited to a nation's citizens but should also include all affected people wherever they may reside. The United States could also propose wording that recognizes the role of civil society in monitoring implementation of Principle 10 by benchmarking performance of countries and by encouraging governments and international organizations to support monitoring by civil society groups.

The United States could also support a longer term process for developing a global framework that sets forth specific mechanisms and standards for providing public access to information, participation in decisionmaking, and access to justice. Such a framework would start with a set of guidelines that draws upon the commonalities of the different regional initiatives and is applied in good faith (but voluntarily) by nations and international institutions.²⁸⁷

The United States can also seek to advance transparency, participation, and accountability in a wide range of areas, from trade to climate protection to biosafety.²⁸⁸ Expanding on its experiences with the NAAEC, the United States should continue to promote these principles in its trade agenda. And while there have been some highlights, the United States could improve its transparency and public consultation in the negotiation of the Free Trade Agreement for the Americas and the Doha Round of the World Trade Organization. As Congress considers renewing "Fast Track" authority for the Administration to negotiate trade agreements, it can also mandate that trade negotiation processes follow certain requirements governing transparency and public consultation. Congress and the Administration can also insist that environmental and governance aspects either be incorporated into the trade agreement or that there be parallel negotiation of a side agreement similar to the NAAEC.

The United States should continue its support of internationally developing pollutant release and transfer registers (PRTR). With the CEC, the United States should continue its active participation in improving the North American PRTR. And in Europe, the United States should play an active role in negotiating the PRTR Protocol under the Aarhus Convention and work toward signing the stand-alone Protocol. It should also continue to work with international organizations such as the Organisation for Economic Cooperation and Development, the Intergovernmental Forum on Chemical Safety, and the U.N. Institute for Training and Research in providing assistance and guidance to countries developing PRTRs and support programs that encourage comparison of data. In addition, the United States should examine how most effectively to track and disseminate information on implementation of international treaties that it signs and ratifies. For example, ozone-depleting substances controlled under the Montreal Protocol have been included in the TRI.

Finally, the United States should seriously consider options for acceding to the Aarhus Convention, a convention that draws heavily from U.S. domestic legislation (including FOIA, NEPA, EPCRA, the APA, and citizen suit provisions). For a country that advocates that other nations adopt these measures, it is an international embarrassment that the United States refused to sign or ratify the convention. It also makes it much more difficult for the United States to convince other nations of the merits of transparency, participation, and accountability if the United States refuses to be bound by the convention.

In addition to providing leadership in developing global and regional frameworks, the United States can help provide financial, technical, and personnel resources to other countries. Financially, USAID can provide assistance to nations for governments and civil society organizations to work together to undertake governance reforms. As USAID is in the process of reinvention, it should articulate specific objectives (which establish the priorities for funding projects) that promote public access to information, improve public participation in decisionmaking, and strengthen the ability of citizens and NGOs to appeal to courts to protect their rights. The Global Development Alliance of USAID, which is described as a new approach to development assistance, could bring together government agencies, philanthropic foundations, NGOs, and the private sector to make determine specific measures to improve environmental governance.²⁸⁹ This could spur not only financing, but also capacity building and in-kind contributions of computers and communications infrastructure.

The United States can also use its influence in international institutions to have them finance initiatives that promote transparency, participation, and accountability. For example, the United States could encourage the Organization of American States to place a high priority on the ISP,²⁹⁰ by providing funds for pilot projects in nations to implement the ISP's mandate of promoting public participation in decisionmaking for sustainable development. Similarly, the United States could assist in opening up some of the international institutions to which it belongs.²⁹¹

The United States can also continue to host study tours of legislators, agency personnel, or judges on specific topics that could range from freedom of information laws, to how to conduct notice-and-comment rulemakings, to public interest litigation. Similarly, the United States can send government, academic, NGO, and private sector experts to other countries to assist in the development and implementation of national access frameworks.

The Brundtland report on environment and development, published in 1987, observed that:

Governments' general response to the speed and scale of global changes has been a reluctance to recognize sufficiently the need to change themselves. The challenges are both interdependent and integrated, requiring comprehensive approaches and popular participation. . . . [32 ELR 10811] The real world of interlocked economic and ecological systems will not change; the policies and institutions concerned must.²⁹²

The United States has an enviable record, on many fronts, regarding public access to information, participation, and justice. It has not, however, taken two basic steps called for by Agenda 21. It has failed to adopt and track indicators of sustainable development and has not organized a continuing dialogue with nongovernmental groups on sustainable development. The September 11 attacks brought an immediate recognition of the need to coordinate much more closely the information and work of different government agencies on security. In the longer term, popular participation and information are the keys to building decisionmaking structures in the United States that recognize the interlocked nature of security, economic, environmental, and social systems. The WSSD provides an immediate opportunity for the United States to take an inward look at how to make changes in governance at home to address sustainable development and at the same time play an active role in advancing access to information and decisionmaking internationally.

1. For purposes of this Article, "civil society" encompasses a wide range of nongovernmental actors, including nongovernmental organizations (NGOs), community-based organizations, business, academia, individual persons, and others.

This Article uses the term "citizens" to denote natural persons regardless of whether they are U.S. citizens. While most of the people who are the subject of discussion in this Article—those who are affected by U.S. governmental decisions, who seek information from the government, who participate in decisionmaking processes, and who seek access to justice in courts and administrative agencies—are indeed U.S. citizens, citizenship is not, and should not be, a requirement for public involvement. As discussed below, if and when there are criteria for public access it is usually that the person be affected or have some cognizable interest.

2. For a thorough list of websites taken offline, see OMB Watch, The Post-September 11 Environment: Access to Government Information, at www.ombwatch.org/info/2001/access.html (last visited Apr. 9, 2001); see also John Woolfolk, Order for Libraries to Destroy CDs Raises Concerns, SAN JOSE MERCURY NEWS, Dec. 6, 2001 (reporting on a federal order to public libraries to destroy compact discs containing information on public water supplies); Meredith Preston, Research Says Work May Be Impeded by Restrictions on Environmental Database, Daily Env't Rep. (BNA), Mar. 28, 2002, at A-5 (reporting on an EPA decision to remove the raw Envirofacts databases from public accessibility, even to "advanced users," such as researchers). In some instances, these websites had been the primary mode of making information publicly available. See, e.g., Activists Accuse NRC of Illegally Blocking Access to Nuclear Data, INSIDE EPA, Oct. 19, 2001, at 7-8.

Concerns about vulnerability of infrastructure facilities to terrorist attack predate September 11, as discussed in infra note 142. Following September 11, however, national security arguments have had significantly more currency in the United States and abroad. See, e.g., Celia W. Dugger, India, Too, Weighs Antiterror Measure Against Liberties, N.Y. TIMES, Nov. 22, 2001, at A12; Anti-Terror Mantra Used to Justify Abuses, WASH. POST, Jan. 17, 2002, at A12.

While many recent measures to limit public access to information have been based on national security grounds, many other initiatives seem to be predicated more on a different model for governance that is inherently more closed. For example, the Administration has sought to limit public disclosure of records required by the Presidential Records Act. See Mike Allen & George Lardner Jr., A Veto Over Presidential Papers, WASH. POST, Nov. 2, 2001, at A1; Suit Filed Over Access to Presidential Papers, N.Y. TIMES, Nov. 29, 2001, at A26; cf. Alison Leigh Cowan, Battling Over Records of Bush's Governorship, N.Y. TIMES, Feb. 11, 2002, at A14. The Administration has also limited the information that it shares with the U.S. Congress to the extent that Senate Majority Leader Tom Daschle asked President George W. Bush: "What didn't we know and when didn't we know it?" See Dana Milbank, On Hill, Many Have a Beef With Not Being Briefed, WASH. POST, Apr. 12, 2002, at A2; see also Dana Milbank & Peter Slevin, Bush Edict on Briefings Irks Hill, WASH. POST, Oct. 10, 2001, at A1; Ellen Nakashima, Bush View of Secrecy Is Stirring Frustration, WASH. POST, Mar. 3, 2002, at A4. Among agencies, the Administration has also limited information sharing, even when it arguably might be in the best interests of national security, Peter Slevin, Ashcroft Blocks FBI Access to Gun Records, WASH. POST, Dec. 7, 2001, at A26.

In developing the national energy plan, Vice President Dick Cheney convened a National Energy Policy Development Group, but refused to release documents regarding with whom the Administration met and what was said. Vice President Cheney and the U.S. Department of Energy (DOE) argued that if the discussions with the group they met with, largely representatives of regulated industry, were made public that it would be difficult to solicit frank comments and candor that the group sought. Ruling on a FOIA request that DOE had refused, however, a federal district court found that DOE was "woefully tardy" in fulfilling the request of "material which . . . is of extraordinary public interest," and ordered the documents released. Natural Resources Defense Council v. Department of Energy, No. 01-2545 (D.D.C. Feb. 21, 2002).

In addition to public interest environmental organizations, journalists have started to become concerned about their ability to obtain information. See Howard Kurtz, Journalists Worry About Limits on Information, Access, WASH. POST, Sept. 24, 2001, at A-5.

3. See Alison Mitchell, Limits Sought on Access to Company Data, N.Y. TIMES, Nov. 28, 2001, at B9 (reporting on legislative initiatives in the House and Senate that would expand exemptions to FOIA); see also Industry, Water Officials Eye Rollback of Freedom of Information Act, INSIDE EPA, Oct. 5, 2001, at 1.

While many legislative initiatives seeking to protect infrastructure from attacks following September 11 would remove information from public view, S.B. 1602 (the Chemical Security Act of 2001, introduced by Sen. Jon Corzine (D-N.J.)) seeks to make infrastructure facilities less vulnerable by encouraging the "use of inherently safer technology." Cf. Attacks May Prompt More Stringent Environmental Assessments, INSIDE EPA, Oct. 12, 2001, at 4.

4. Rio Declaration on Environment and Development, done at Rio de Janeiro, June 14, 1992, reprinted in 31 I.L.M. 874 (1992).

5. U.N. Conference on Environment and Development, Agenda 21, U.N. Doc. A/CONF.151.26 (1992) [hereinafter Agenda 21].

6. Universal Declaration of Human Rights, adopted by the U.N. General Assembly (U.N.G.A.) on Dec. 10, 1948, U.N.G.A. Res. 217A(III), U.N. Doc. A/810, at 71 (1948), arts. 8, 10, and 19.

7. International Covenant on Civil and Political Rights, done at New York, Dec. 16, 1966 (entered into force Mar. 23, 1976),art. 19(2), U.N.G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316, reprinted in 6 I.L.M. 368 (1967).

8. E.g., San Salvador Protocol, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, Nov. 17, 1988 (entered into force Nov. 16, 1999), art. 11, available at http://www.oas.org/juridico/english/Treaties/a-52.html (last visited Apr. 20, 2002).

9. World Charter for Nature, adopted by the U.N. General Assembly, Oct. 28, 1982, arts. 16 & 23, U.N.G.A. Res. 37/7, U.N. GAOR Supp. (No. 51) 21, U.N. Doc. A/37/L.4 and Add. 1 (1982).

10. Rio Declaration, supra note 4, princ. 10. In addition to the norms of public involvement discussed in this chapter, Principle 10 also includes the principle of subsidiarity.

11. Id. princs. 3, 4, 5, 8, 15 (respectively).

12. In addition to Chapters 27 and 40, discussed infra, chapters in Agenda 21 that focus on specific environmental issues frequently rely on public involvement to ensure effective implementation. These include, for example, chapters on desertification and drought (Chapter 12) and management of toxic chemicals (Chapter 19). Chapters 36 and 37 on education and capacity building also address public involvement in a more tangential way.

13. Agenda 21, supra note 5, P23.1.

14. In addition to NGOs, discussed infra, other major groups include women, children and youth, indigenous peoples, local authorities, labor, business, scientific and technological community, and farmers. Id. chs. 24-26, 28-32.

15. Id. P27.1.

16. Id. P27.1, .11, .12.

17. Id. P27.6.

18. Id. P27.8.

19. Id. P27.9, .10, .13.

20. Id. P40.1.

21. Specific mechanisms include the development and global use of sustainable development indicators (P40.6-.7); improving data collection, use, and analysis (P40.8-.9); integrating information (P40.10); making use of traditional knowledge (P40.11); increasing capacity through technology transfer, training, and financing (P40.12-.16; .27-.30); establishing standards for handling information (P40.23); documenting available information, including that commercially available (P40.24, .26); and strengthening electronic networking capabilities (P40.25).

22. Id. P1.1; see also id. P1.3 ("The broadest public participation and the active involvement of the [NGOs] and other groups should also be encouraged.").

23. For more complete assessments of the specific benefits of transparency, public participation, and accountability in environmental matters, see infra notes 38-42 and accompanying text.

24. See table infra on Regional Instruments Implementing Principle 10; see also Carl E. Bruch & Roman Czebiniak, Globalizing Environmental Governance: Making the Leap From Regional Initiatives on Transparency, Participation, and Accountability in Environmental Matters, 32 ELR 10428 (Apr. 2002).

25. UNECE Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, adopted at Aarhus, Denmark, June 25, 1998 (entered into force Oct. 30, 2001), ECE/CEP/43 [hereinafter Aarhus Convention]. The North American Agreement on Environmental Cooperation (NAAEC) also bears mention here as it promotes transparency, participation, and accountability in North America. North American Agreement on Environmental Cooperation (NAAEC), Sept. 8-14, 1993 (entered into force Jan. 1, 1994), U.S.-Can.-Mex., art. 1(g), (h), reprinted at 32 I.L.M. 1480 [hereinafter NAAEC]; see alsoBruch & Czebiniak, supra note 24, at 10439-40. While the other four regional instruments primarily focus on establishing standards for nations to adopt, the NAAEC also establishes a regional body—the North American Commission for Environmental Cooperation (CEC)—that promotes public involvement and provides a forum in which citizens can complain that a member state is failing to enforce its environmental laws. Id.

26. Memorandum of Understanding (MOU) between the Republic of Kenya and the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environmental Management, done at Nairobi, Oct. 22, 1998 [hereinafter East African MOU].

27. Organization of American States Inter-American Council for Integral Development (OAS CIDI), Inter-American Strategy for the Promotion of Public Participation in Decisionmaking for Sustainable Development, CIDI/RES. 98 (V-O/00), OEA/Ser.W/II.5, CIDI/doc.25/00 (20 April 2000), adopting Organization of American States, Unit for Sustainable Development and Environment, Inter-American Strategy for the Promotion of Public Participation in Decisionmaking for Sustainable Development (ISP), December 1999 [hereinafter ISP].

28. Towards Good Practices for Public Involvement in Environmental Policies (Draft June 28, 2001), Produced by AEETC for the Consideration of the Environment Minister's Meeting, available at www.vyh.fi/eng/intcoop/regional/asian/asem/junedraft1.RTF and www.aeetc.org (last visited Feb. 20, 2002) [hereinafter Draft ASEM Elements].

29. See Bruch & Czebiniak, supra note 24.

30. 5 U.S.C. § 552.

31. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

32. 5 U.S.C. §§ 551-706.

33. E.g., 33 U.S.C. § 1365, ELR STAT. CWA § 505 (Clean Water Act); 42 U.S.C. § 7604, ELR STAT. CAA § 304 (Clean Air Act).

34. Aarhus Convention, supra note 25, art. 7. NEPA frequently does not apply to broader agency plans and programs. See, e.g., DANIEL R. MANDELKER, NEPA LAW AND LITIGATION § 9.02 (2d ed. 2000) (noting that "NEPA does not require program impact statements" but they are provided for by the Council on Environmental Quality (CEQ) implementing regulations and under specific circumstances articulated by the Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20545 (1976) ("when several proposals . . . that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.")); see also id. § 8.04[4].

Moreover, the APA would not require notice-and-comment procedures for plans and programs that are normally mandated for a rulemaking. See infra notes 61-65 and accompanying text.

35. ELENA PETKOVA & PETER VEIT, ENVIRONMENTAL ACCOUNTABILITY BEYOND THE NATION-STATE: THE IMPLICATIONS OF THE AARHUS CONVENTION (World Resources Inst. 2000).

36. The Aarhus Convention, which entered into force in October 2001, was conceptualized and negotiated through the 1990s by nations from Europe, the Newly Independent States of the former Soviet Union, Canada, and the United States. Ecological citizens organizations (ECOs) took a leading role in its development and implementation. Jeremy Wates, Introducing the Aarhus Convention: A New International Law on Citizens' Environmental Rights, Background Paper distributed at the Pan-European ECO Forum Conference on Public participation, Chisinau, Moldova (Apr. 16-18, 1999), at 8 (on file with authors). As nations ratify and implement the convention, it is reshaping the laws, institutions, and practices of European Union Members, central and East European nations, and central Asian countries. See http://www.unece.org/pp (last visited Apr. 20, 2002); STEPHEN STEC & SUSAN CASEY-LEFKOWITZ, THE AARHUS CONVENTION: AN IMPLEMENTATION GUIDE (2000). As discussed below, the United States has neither signed nor ratified this convention. See infra note 238 and accompanying text.

37. Despite the promise posed by the numerous regional initiatives promoting public participation, it should be emphasized that the themes common to the different initiatives do not necessarily constitute global consensus on how to implement Principle 10 at the regional and national levels. First, many nations are not represented in the regional initiatives considered, including the vast majority of African nations as well as many Asian nations. Second, if the Draft ASEM Elements of Good Practice are not adopted, there would be no regional framework for Asian nations to consider in implementing Principle 10. Third, the regional approaches may not comprise the entire global framework, as some provisions in Agenda 21 (such as those on indicators and integration of information) are not well-represented in the regional approaches. And finally, as will be noted, the Aarhus Convention is the most detailed of the regional frameworks considered and it may be that not all of the elements of public involvement outlined in this analysis are ultimately included in a global framework.

38. William D. Ruckelshaus, Towards a Sustainable World, SCI. AM., Sept. 1989, at 166.

39. Research carried out at Resources for the Future used six social goals in evaluating public participation programs: educating and informing the public, incorporating public values into decisionmaking, improving the substantive quality of decisions, increasing trust in institutions, reducing conflict, and achieving cost-effectiveness. See J. Clarence Davies, Public Participation in Environmental Decisionmaking and the Federal Advisory Committee Act, Testimony Before the U.S. House of Representatives, Government Reform and Oversight Committee (July 14, 1998).

40. Letter from James Madison to W.T. Barry, Aug. 4, 1822, in THE COMPLETE MADISON 337 (Padover ed., 1953).

41. PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, TOWARDS A SUSTAINABLE AMERICA VI (1999) [hereinafter SUSTAINABLE AMERICA].

42. It is sobering to consider how dramatically the lives of so many have changed in the United States since the World Wide Web was invented in 1989, and the World Wide Web Consortium was established in 1994, marking the emergence of the Internet as a tool for sharing information, working, communicating, and entertainment by the broader public. See http://www.w3.org/History.html (last visited Jan. 14, 2002); see also Keith Harley & Holly D. Gordon, Public Participation and Environmental Advocacy in the Internet Era, NAT. RESOURCES & ENV'T, Summer 2001, at 296; but see Alexander Stille, Adding Up the Costs of Cyberdemocracy, N.Y. TIMES, June 2, 2001, at A15 (describing how the Internet can foster extremism). Some advocates are concerned that the coming decade may see a reversal in the openness and accessibility that characterized the development of the Internet over the past decade. See, e.g., LAWRENCE LESSIG, THE FATE OF THE COMMONS IN A CONNECTED WORLD (2001).

43. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

44. See infra notes 49-92 and accompanying text.

45. See Community Technology Centers Policy Overview, OMB WATCHER ON-LINE, Jan. 7, 2002, at http://www.ombwatch.org/ombwatcher/current.html#ctc (last visited Jan. 15, 2002). Since this Article focuses on assessing the status of transparency, participation, and accountability at the national level, it only mentions some of the recent state and local initiatives in specific instances.

46. See, e.g., Carl Bruch et al., Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa, 26 COLUM. J. ENVTL. L. 131 (2001).

47. Many U.S. states have constitutional provisions protecting the environment or natural resources. See Neil A.F. Popovic, Pursuing Environmental Justice With International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338, 355 (1996) (31 states); Montana Envtl. Info. Ctr. v. Department of Envtl. Quality, 988 P.2d 1236, 1246, 1249 (Mont. 1999) (granting standing to NGOs to challenge the constitutionality of a state statute); John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part I—An Interpretive Framework for Article I, Section 27, 103 DICK. L. REV. 693 (1999); John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part II—Environmental Rights and Public Trust, 104 DICK. L. REV. 97 (2000).

48. Cf. Bruch et al., supra note 46, at 134.

49. 5 U.S.C. §§ 551-706, 1305, 3105, 3344, 5372, 7521.

50. Id. § 552(a)(3), (a)(6)(A)(i), available in ELR STAT. ADMIN. PROC. As a practical matter, agencies frequently violate the 20-day rule, prompting law suits to compel the release of the requested information. See, e.g., Tri-Valley Communities Against a Radioactive Env't v. Department of Energy, No. 94702 (N.D. Cal. filed Nov. 2, 2000), available at www.igc.org/tvc/foiacomplaint-icfmtgs.PDF (last visited Mar. 18, 2002).

51. 5 U.S.C. § 552(b), (c), available in ELR STAT. ADMIN. PROC.

52. Cf. Philip Morris v. Reilly, 267 F.3d 45 (1st Cir. 2001) (holding that a Massachusetts law requiring disclosure of ingredients in tobacco is not an unconstitutional taking of trade secrets); but see infra note 145 (discussing the 2001 Attorney General Memorandum, which urges a broader reading of the exceptions).

53. 5 U.S.C. § 552(a)(4)(F), available in ELR STAT. ADMIN. PROC.

54. Id. § 552(a)(4)(A), available in ELR STAT. ADMIN. PROC.

55. Id. § 552(a)(4)(A)(iii), available in ELR STAT. ADMIN. PROC.

56. Id. § 552b, available in ELR STAT. ADMIN. PROC.

57. Federal Communications Comm'n v. ITT World Communications, 466 U.S. 463 (1984).

58. 5 U.S.C. § 552b(c)(9)(B), available in ELR STAT. ADMIN. PROC. However, discussions between agency members before taking a decision must remain open, which would be counter to FOIA exemption (5) governing intraagency and interagency communications that would not be discoverable in litigation.

59. Id. app. I; see also Thomas C. Beierle & Rebecca J. Long, Chilling Collaboration: The Federal Advisory Committee Act and Stakeholder Involvement in Environmental Decisionmaking, 29 ELR 10399 (July 1999).

60. It should be noted that the FACA does not apply to ad hoc meetings. Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975) (holding that unstructured, biweekly White House meetings with different groups of private business representatives did not constitute advisory committees subject to the FACA).

61. 5 U.S.C. § 553, available in ELR STAT. ADMIN. PROC.; see also ELIZABETH D. MULLIN, THE ART OF COMMENTING: HOW TO INFLUENCE ENVIRONMENTAL DECISIONMAKING WITH EFFECTIVE COMMENTS (Envtl. L. Inst. 2000).

62. 5 U.S.C. § 553(c), 556, 557, available in ELR STAT. ADMIN. PROC.

63. Id. § 553(b), available in ELR STAT. ADMIN. PROC.

64. Id. § 553(c), available in ELR STAT. ADMIN. PROC.; Florida Power & Light Co. v. United States, 846 F.2d 765, 772 (D.C. Cir. 1988) (15 days not unreasonable).

65. Although a response to comments document is not required, it is often used to show, e.g., to a court, that an agency considered the public comments. See, e.g., Response to Comments Document on the Proposed Rule—Disposal of Polychlorinated Biphenyls, OPPTS Docket No. 66009A (1998), available at http://www.epa.gov/opptintr/pcb/response.pdf (last visited Mar. 18, 2002); cf. 40 C.F.R. § 1503.4 (response to comments document requirements for an EIS under NEPA).

66. 5 U.S.C. § 702, available in ELR STAT. ADMIN. PROC.

67. Id. § 704, available in ELR STAT. ADMIN. PROC.

68. Id. § 706, available in ELR STAT. ADMIN. PROC.

69. See, e.g., infra notes 187-88 and accompanying text (EPA policy).

70. See, e.g., OMB WATCH, A CITIZEN'S PLATFORM FOR OUR ENVIRONMENTAL RIGHT-TO-KNOW (2001).

71. 40 C.F.R. §§ 1500-1517; NEPAnet, available at http://ceq.eh.doe.gov/nepa/nepanet.htm| (last visited Apr. 15, 2002)

72. 40 C.F.R. §§ 1501.7(2), (3), 1505.1.

73. Id. § 1502.3.

74. Id. § 1502.14.

75. See id. §§ 1503.1, 1502.18.

76. Id. §§ 1502.9(b), 1503.4.

77. See Nicholas Yost, The National Environmental Policy Act, in NEPA DESKBOOK 20 (Envtl. L. Inst. 2d ed., 1995).

78. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

79. Id. § 6974, ELR STAT. RCRA § 7004; see also 33 U.S.C. § 1251, ELR STAT. FWPCA § 101 (requiring public participation "in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan or program established" under the CWA by EPA or the states); 40 C.F.R. §§ 25.1-.14 (same); see also 16 U.S.C. § 1533(b)(3), ELR STAT. ESA § 4(b)(3) (public petitioning to list a threatened or endangered species under the Endangered Species Act (ESA)).

80. E.g., 33 U.S.C. § 1344(c), ELR STAT. FWPCA § 404(c) (CWA dredge and fill permit); 42 U.S.C. § 7661a(b)(6), ELR STAT. CAA § 502(b)(6) (major source permitting under Title V of the CAA).

81. 40 C.F.R. §§ 300.815, 300.435, 300.820, 300.415; http://www.epa.gov/superfund/tools/index.htm (last visited Apr. 15, 2002) (including fact sheets detailing community involvement processes under CERCLA).

82. 42 U.S.C. §§ 6939a(c), 6973(d), ELR STAT. RCRA §§ 3019(c), 7003(d).

83. 40 C.F.R. § 1508.27(b)(9).

84. 16 U.S.C. § 1604(d).

85. 43 U.S.C. § 1712(a), (f); 43 C.F.R. §§ 1610.2, 1600.0-6; see also 43 C.F.R. § 4120.2(b), (c) (public participation in development of allotment management plans for grazing).

86. 16 U.S.C. § 1455(d)(3), (4), ELR STAT. CZMA § 306(d)(3)(4); 15 C.F.R. §§ 923.50, .51, .55.

87. See Carl E. Bruch, Where the Twain Shall Meet: Standing and Remedy in Alaska Center for the Environment v. Browner, 6 DUKE ENVTL. L. & POL'Y F. 157, 171 n.71 (1996) (detailing provisions in 14 statutes, in addition to the CWA; id. at 178 (discussing representational standing).

88. E.g., 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA § 505(b)(1)(B); see also Barry S. Newman & Jeffrey A. Knight, When Are Clean Water Act Citizen Suits Precluded by Government Enforcement Actions?, 30 ELR 10111 (Feb. 2000).

89. See infra notes 193-228 and accompanying text (reviewing standing cases).

90. E.g., 33 U.S.C. § 1365(a), ELR STAT. FWPCA § 505(a).

91. E.g., id. § 1365(d), ELR STAT. FWPCA § 505(d).

92. 5 U.S.C. § 504; 28 U.S.C. § 2412.

93. 42 U.S.C. § 4341, ELR STAT. NEPA § 201; see also www.epa.gov/ceis (EPA's Environmental Quality website); www.epa.gov/enviro/index_java.html (EPA's Envirofacts). As discussed infra note 117, a 1995 act ostensibly eliminated the requirement that EQRs be submitted.

94. See, e.g., 33 U.S.C. § 1318, ELR STAT. FWPCA § 308; 40 C.F.R. § 125.27 (discharge monitoring reports required by the CWA); 42 U.S.C. § 7661c, ELR STAT. CAA § 502 (CAA).

95. E.g., 33 U.S.C. § 1318(b), ELR STAT. FWPCA § 308(b).

96. SHEILA A. FERGUSON ET AL., INFLUENCE OF CBI REQUIREMENTS ON TSCA IMPLEMENTATION (Hampshire Research Ass'n 1992) (finding an increasing number of confidentiality claims asserted between 1977 and 1992 under the Toxic Substances Control Act's (TSCA's) reporting provisions on commercial chemicals).

97. See, e.g., BARRY G. RABE, FRAGMENTATION AND INTEGRATION IN STATE ENVIRONMENTAL MANAGEMENT (1986).

98. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

99. Id. § 11023, ELR STAT. EPCRA § 313; 40 C.F.R. pt. 372.

100. 42 U.S.C. § 11023(j), ELR STAT. EPCRA § 313(j).

101. See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 624-27 (1992). See also John C. Dernbach, The Unfocused Regulation of Toxic and Hazardous Pollutants, 21 HARV. ENVTL. L. REV. 1 (1997).

102. See http://www.epa.gov/tri (last visited Apr. 20, 2002).

103. See, e.g., http://www.rtknet.org; http://www.scorecard.org (both last visited Apr. 20, 2002). Investors have also used TRI data. James T. Hamilton, Is the Toxics Release Inventory News to Investors?, NAT. RESOURCES & ENV'T, Summer 2001, at 292.

104. 42 U.S.C. § 7412(r), ELR STAT. CAA § 112(r).

105. But see supra notes 2-3 and accompanying text (discussing chemical safety information, the Site Security and Fuels Regulatory Relief Act, and other recent developments).

106. 40 C.F.R. § 300.430(c)(2)(ii); see also http://www.epa.gov/superfund/sites/index.htm (last visited Apr. 20, 2002) (publicly available information on Superfund sites).

107. See, e.g., http://www.epa.gov/epahpme/dmedia.htm#toxic (last visited Apr. 20, 2002).

108. 15 U.S.C. §§ 2663 (EPA Citizen's Guide on Indoor Radon Abatement), 2682 (lead training for professionals), 2686 (lead hazard information pamphlet), ELR STAT. TSCA §§ 303, 402, 406.

109. See CEQ, ENVIRONMENTAL QUALITY, 23RD ANNUAL REPORT 176-78 (1999).

110. Senate Committee on Government Affairs GPRA Report, available at http://www.whitehouse.gov/omb/mgmt/gpra/gprptm.html#h22 (last visited Mar. 25, 2002).

111. See generally 22 ENVTL. L. 1 et seq. (1992) (articles focused on integrated pollution prevention and control). This paragraph draws particularly on Frances H. Irwin, An Integrated Framework for Preventing Pollution and Protecting the Environment, 22 ENVTL. L. 1 (1992). Cf. Pat Phibbs, EPA Mulls Ways to Alert, Help States on Release of Chemical Information, Data, Daily Env't Rep. (BNA), July 2, 2001, at A-7; Robert L. Fischman & Vicky J. Meretsky, Endangered Species Information: Access and Control, 41 WASHBURN L.J. 90 (2001).

112. See, e.g., Joel A. Mintz, Whither Environmental Reform?: Some Thoughts on a Recent AALS Debate, 31 ELR 10719 (June 2001). For perceptive discussions of the environmental politics of the 1990s, see Jonathan Z. Cannon, EPA and Congress (1994-2000): Who's Been Yanking Whose Chain?, 31 ELR 10942 (Aug. 2001); Thomas O. McGarity, Deflecting the Assault: How EPA Survived a "Disorganized Revolution" by "Reinventing" Itself a Bit, 31 ELR 11249 (Nov. 2001).

113. See discussion on right-to-know during the 1990s at http://www.ombwatch.org (for example Testimony of Patrice McDermott Before Committee on Governmental Affairs on the E-Government Act of 2001) (July 2001)) (last visited Apr. 15, 2002). See also earlier discussions in Jerry L. Berman, The Right to Know: Public Access to Electronic Public Information, 3 SOFTWARE L.J. 491 (1989), and Gary D. Bass & Alair MacLean, Enhancing the Public's Right-to-Know About Environmental Issues, 4 VILL. ENVTL. L.J. 287 (1993).

114. See generally ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (1999).

115. See http://www.pewenvirohealth.jhsph.edu (last visited Nov. 9, 2001); PUTNAM, supra note 114, at 37, 161 (citing a poll by Yankelovich Partners).

116. See CRESCENCIA MAURER, THE U.S. PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT: A CASE STUDY (Sept. 1998, updated May 1999), available at http://www.wri.org (last visited Apr. 20, 2002).

117. Federal Reports Sunset and Elimination Act, Pub. L. No. 104-66 (1995) (referring to House Document 103-7, which lists the reports—including the EQRs—that no longer need be delivered to Congress).

118. See http://www.digitaldividend.org (last visited Apr. 20, 2002).

119. Agenda 21, supra note 5, PP8.6, 40.6.

120. SUSTAINABLE AMERICA, supra note 41, Policy Rec. 5.

121. SUSTAINABLE DEVELOPMENT IN THE UNITED STATES: AN EXPERIMENTAL SET OF INDICATORS, A PROGRESS REPORT PREPARED BY THE U.S. INTERAGENCY WORKING GROUP ON SUSTAINABLE DEVELOPMENT INDICATORS (1998).

122. SUSTAINABLE AMERICA, supra note 41, ch. 3, Policy Recommendation 6.

123. NATIONAL RESEARCH COUNCIL, NATURE'S NUMBERS: EXPANDING THE NATIONAL ECONOMIC ACCOUNTS TO INCLUDE THE ENVIRONMENT 1999.

124. A. ADRIAANSE ET AL., RESOURCE FLOWS: THE MATERIAL BASIS OF INDUSTRIAL ECONOMIES (World Resources Inst. 1997); EMILY MATTHEWS ET AL., THE WEIGHT OF NATIONS: MATERIAL OUTFLOWS FROM INDUSTRIAL ECONOMIES (World Resources Inst. 2000).

125. Shelley H. Metzenbaum, Using GPRA to Improve Environmental Quality and the Effectiveness of EPA (background briefing organized by OMB Watch (Dec. 10, 1999)).

126. See Goal 7: FY 2000 Obligations, at http://www.gov/ocfo/finstatement/2000ar/ar00-goal7.pdf (last visited Mar. 25, 2002).

127. OMB WATCH, MEASURING THE MEASURERS, A NONPROFIT ASSESSMENT OF THE GOVERNMENT PERFORMANCE AND RESULTS ACT (1998).

128. See http://globalreporting.org (last visited Sept. 5, 2001).

129. See http://www.rprogress.org/projects/indicators (last visited Apr. 11, 2002). Redefining Progress has organized a group working on indicators in California. See http://www.sustainablemeasures.com/Resources/communities.html (last visited Apr. 11, 2002).

130. Redefining Progress and the International Institute for Sustainable Development merged their databases in 2000. See http://iisd.1.iisd.ca/measure/comp.index.asp (last visited Mar. 23, 2002). Sustainable Seattle issued three sets of indicators between 1993 and 1998. See http://www.scn.org/sustainable/indicat.htm (last visited Sept. 9, 2001).

131. ENVIRONMENTAL DEFENSE & OHIO CITIZEN ACTION, ENVIRONMENTAL LIVABILITY INDEX, MEASURING ENVIRONMENTAL PERFORMANCE FOR DAYTON/MONTGOMERY COUNTY, OHIO (2000).

132. NATIONAL ACADEMY OF SCIENCES BOARD ON SUSTAINABLE DEVELOPMENT, NATIONAL RESEARCH COUNCIL, OUR COMMON JOURNEY: A TRANSITION TOWARD SUSTAINABILITY 16 (1999), available at http://www.nap.edu/html/common_journey (last visited Sept. 9, 2001) (noting that notwithstanding the numerous efforts to develop indicators at all levels of government, "there is no consensus on the appropriateness of the current set of indicators or the scientific basis for choosing among them") [hereinafter OUR COMMON JOURNEY].

133. Goal 7: Expansion of Americans' Right to Know about Their Environment, VII-21, at http://www.epa.gov/ocfo/finstatement/2000ar/ar00-goal7.pdf (last visited Mar. 26, 2002).

134. AGENDA FOR ACCESS: PUBLIC ACCESS TO FEDERAL INFORMATION FOR SUSTAINABILITY THROUGH THE INFORMATION SUPERHIGHWAY (Bauman Foundation 1995).

135. Pub. L. No. 104-13.

136. Pub. L. No. 104-231.

137. See http://www.rtknet.org/aboutrtknet.html (last visited Dec. 20, 2001).

138. See http://www.rtknet.org; http://www.scorecard.org (both last visited Apr. 20, 2002).

139. Lexington, www.democracy.com, ECONOMIST, Apr. 3, 1999, at 28.

140. Keith Harley & Holly D. Gordon, Public Participation and Environmental Advocacy in the Internet Era, NAT. RESOURCES & ENV'T, Summer 2001, at 296.

141. See http://www.epa.gov/oeca/sfi (last visited Apr. 11, 2002) for sector facility indexing project that presents Integrated Data for Enforcement Analysis. See discussion at http://www.thecre.com/information/index.html (last visited Apr. 11, 2002) on Tozzi v. EPA, No. 98 CV-00169 (D.D.C. Oct. 19, 1998); Data Quality Approaches, OMB WATCHER, Apr. 15, 2002, at 1.

142. A congressionally mandated report prepared by EPA assessed the incentives for reduction in accidental chemical releases created by public disclosure. It stressed the importance of easily accessible information and providing context, and it concluded that public disclosure of RMPs would likely lead to significant reduction in the number and severity of accidental chemical releases. U.S. EPA, ASSESSMENT OF THE INCENTIVES CREATED BY PUBLIC DISCLOSURE OF OFF-SITE CONSEQUENCE ANALYSIS INFORMATION FOR REDUCTION IN THE RISK OF ACCIDENTAL RELEASES (2000).

143. PRESIDENT'S INFORMATION TECHNOLOGY ADVISORY COMMITTEE, TRANSFORMING ACCESS TO GOVERNMENT THROUGH INFORMATION TECHNOLOGY (2000).

144. E-Government Act of 2001, S. 803 (May 1, 2001); see also infra notes 267-268 and accompanying text.

145. Memorandum from John Ashcroft, Attorney General, to Heads of All Federal Departments and Agencies re: The Freedom of Information Act (Oct. 12, 2001). This new policy supercedes the previous Attorney General (AG) memorandum but does not affect the presidential interpretation of FOIA, and President William J. Clinton's memorandum on FOIA remains in effect. President's Memorandum to Department and Agency Heads Regarding the Freedom of Information Act, 29 WEEKLY COMP. PRES. DOC. 1999 (Oct. 11, 1993).

The previous AG memorandum promoted disclosure under FOIA unless it was "reasonably foreseeable that disclosure would be harmful." Attorney General's Memorandum to Department and Agency Heads Regarding the Freedom of Information Act, Daily Rep. for Executives (BNA), Oct. 5, 1993, at 145. The new policy effectively changes the default from encouraging disclosure unless it is harmful (disclose the information if there is any way to do so without causing harm) to discouraging disclosure unless doing so would be illegal (only disclose requested information when it is actually required).

146. See supra note 118. The 1997 EQR was the last one released. Notwithstanding the 1995 legislation, the CEQ is still obligated to collect the same information, "compile and submit to the President" studies on environmental quality trends and conditions, and "to report at least once each year to the President on the state and condition of the environment" under § 204(2), (6), and (7) of NEPA. Since these statutory provisions require the CEQ to report annually to the president, not Congress, the 1995 Act would not abrogate these responsibilities. Accordingly, it would seem that the CEQ must still prepare and submit an annual report that is similar to the EQR, except that it is submitted to the president. This is not the CEQ's interpretation of the 1995 Act, which holds that no such report is necessary.

147. See The OTA Legacy, at http://www.wws.princeton.edu/-ota/ (last visited Sept. 14, 2001). The website includes all the Office of Technology Assessment reports issued in its 23-year history, 1972-1995, as well as materials about its history and impact.

148. Letter to U.S. International Trade Commission from Committee on Ways and Means, U.S. House of Representatives (Oct. 17, 1995); Synthetic Organic Chemicals (SOC) Reports, 60 Fed. Reg. 58639 (Nov. 28, 1995).

149. See discussion in U.S. GENERAL ACCOUNTING OFFICE, REPORT TO THE CHAIRMAN, COMMITTEE ON GOVERNMENTAL AFFAIRS, U.S. SENATE, INFORMATION RESOURCES MANAGEMENT. COMPREHENSIVE STRATEGIC PLAN NEEDED TO ADDRESS MOUNTING CHALLENGES (2002).

150. See http://www.epa.gov/nrgystar/purchasing/ (last visited Apr. 20, 2002).

151. Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, Exec. Order No. 13101, 63 Fed. Reg. 49643 (Sept. 16, 1998), ADMIN. MAT. 45100.

152. See http://www.greenseal.org (last visited Dec. 20, 2001).

153. See http://www.svtc.org (last visited Apr. 20, 2002).

154. See http://www.epa.gov/oeca.sfi (last visited Dec. 20, 2001).

155. See, e.g., discussion and references at http://www.wri.org/capmarkets/index.html (last visited Jan. 9, 2002).

156. Pub. L. No. 104-182 (1996).

157. See http://www.epa.gov/ncod/ (last visited Mar. 18, 2002).

158. 42 U.S.C. § 300g-3(c), ELR STAT. SDWA § 1414(c); National Primary Drinking Water Regulations: Public Notification Rule, Final Rule, 65 Fed. Reg. 25981 (May 4, 2000).

159. Pub. L. No. 106-284 (2000).

160. 33 U.S.C. § 1346(e).

161. Id. § 1346(a)(1)(B).

162. Stephen G. Greene, Technology Helps Small Environmental Group Get Big Results, CHRON. OF PHILANTHROPY, Jan. 11, 2001, available at http://philanthropy.com/free/articles/v13/i06/06001001.htm (last visited Apr. 17, 2001).

163. See http://www.healthyamericans.org (last visited Sept. 10, 2001).

164. Letter from Marty Spitzer, Executive Director, PCSD (May 17, 1999).

165. MAURER, supra note 116.

166. SUSTAINABLE AMERICA, supra note 41, at V-VI.

167. Id. at 4, 8.

168. See WSSD News for U.S. NGOs, Dec. 12, 2001, available at http://citnet.org/uscpc/newsletters/12Dec01/ (last visited Dec. 12, 2001).

169. See, e.g., Shelia Foster, Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking, 30 ELR 10992 (Nov. 2000) (discussing role of community groups).

170. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898 (1994) ADMIN. MAT. 45075.

171. Exec. Order No. 13307 (1996); Exec. Order No. 13175 (2000).

172. For a discussion of the extent to which federal agencies have implemented the order, see Denis Binder et al., A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898 on Environmental Justice, 31 ELR 11133 (Oct. 2001).

173. See http://es.epa.gov/oeca/ofa/ejepa.html (last visited Aug. 29, 2001).

174. U.S. EPA, Office of Environmental Justice Small Grants Program; Application Guidance FY 2001, 65 Fed. Reg. 81720 (Dec. 26, 2000) (cited in Binder et al., supra note 172, at 11140 n.66).

175. Memorandum from Christine Todd Whitman, EPA Administrator, to Senior Agency Staff, on EPA's Commitment to Environmental Justice (Aug. 9, 2001), available at http://www.epa.gov/ocea/main/ej/epacommit.pdf (also available from the ELR Document Service, ELR Order No. AD-4661). See Bradford C. Mank, South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will Section 1983 Save Title VI Disparate Impact Suits?, 32 ELR 10454, 10457 (Mar. 2002).

176. See, e.g., Press Release, Groups Petition National Academy of Sciences for more Committee Balance and Conflicts of Interest Disclosure (May 22, 2000), available at http://www.cspinet.org/new/nas_letter.html (last visited Jan. 20, 2002); Letter from Center for Science in the Public Interest, to Dr. E. William Colglazier (Jan. 15, 2002) (regarding applying National Academy of Sciences' disclosure policy to board members) (on file with authors).

177. Richard E. Sclove, Better Approaches to Science, 279 SCIENCE 1283 (1998).

178. Madeleine Scammell & Richard Sclove, Science by Everyone: Building a Worldwide Community Research Network, NATURE, Jan. 28, 1999, available at http://www.loka.org/pubs/lokapubs.htm (last visited Apr. 20, 2002). See generally http://www.loka.org (last visited Apr. 20, 2002).

179. COMMITTEE ON ENVIRONMENTAL IMPACTS ASSOCIATED WITH COMMERCIALIZATION OF TRANSGENIC PLANTS, BOARD ON AGRICULTURE AND NATURAL RESOURCES, NATURAL RESEARCH COUNCIL, ENVIRONMENTAL EFFECTS OF TRANSGENIC PLANTS: THE SCOPE AND ADEQUACY OF REGULATION 10-12 (2002) (reporting that confidential data in registration documents hampers external review, noting that more data is available in other countries, and urging steps that go beyond routine Federal Register notices to involve more parties in review, particularly in precedent-setting decisions).

180. SUSTAINABLE AMERICA, supra note 41, at VI.

181. GAIL BINGHAM, RESOLVING ENVIRONMENTAL DISPUTES (1986).

182. Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320.

183. Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648.

184. LISA DOERR, CITIZENS FOR A BETTER ENVIRONMENT, COMMUNITY-BASED ENVIRONMENTAL PROTECTION: A LOOK AT TWO COMMUNITY PROJECTS (undated; on file with authors); Sanford Lewis & Diane Henkels, Good Neighbor Agreements: A Tool for Environmental and Social Justice, SOCIAL JUSTICE PAGE, June 23, 2000, available at http://www.cpn.org/sections/topics/environment/stories-studies/lewis_henkel.html (last visited Mar. 25, 2002).

185. THOMAS C. BEIERLE, RESOURCES FOR THE FUTURE, THE QUALITY OF STAKEHOLDER-BASED DECISIONS: LESSONS FROM THE CASE STUDY RECORD (2000).

186. RCRA Expanded Public Participation Final Rule, 60 Fed. Reg. 63417 (Dec. 11, 1995).

187. U.S. EPA, ENGAGING THE AMERICAN PUBLIC: A REVIEW OF EPA'S PUBLIC PARTICIPATION POLICY AND REGULATIONS WITH RECOMMENDATIONS FOR ACTION (2000), available at http://www.epa.gov/stakeholders/policy.htm (last visited Apr. 20, 2002).

188. THOMAS C. BEIERLE, RESOURCES FOR THE FUTURE, DEMOCRACY ON-LINE: AN EVALUATION OF THE NATIONAL DIALOGUE ON PUBLIC INVOLVEMENT IN EPA DECISIONS (2002).

189. See ARNOLD W. REITZE JR., AIR POLLUTION CONTROL LAW: COMPLIANCE AND ENFORCEMENT 599-600 (Envtl. L. Inst. 2001).

190. See Adam Babich, Citizen Suits: The Teeth in Public Participation, 25 ELR 10141 (Mar. 1995).

191. For example, in the past two years there has been a steady decline in the number of criminal environmental cases referred by EPA for criminal prosecution. Since 1999, the total number of referrals for criminal prosecution have dropped by 27%, with TSCA referrals down 85%; CAA down 78%; CWA down 56%; and RCRA down 55%. See Press Release, Public Employees for Environmental Responsibility, Environmental Enforcement Plummets Under Bush, available at www.peer.org/press/203.html (last visited Jan. 14, 2002); see also Transactional Resource Access Clearinghouse, EPA Criminal Enforcement Cases Referred to Department of Justice, available at www.peer.org/EPA/EPA_criminal_referrals_graphs.htm (graph; last visited Apr. 20, 2002). The fewer referrals may represent a focus on the most significant environmental violators. See Press Release, U.S. EPA, EPA Achieves Significant Compliance and Enforcement Progress in 2001, available at http://wysiwyg://66/http://www.epa.gov/epahome/headline_020102.htm (last visited Mar. 18, 2002) (reporting that violators had to invest record amounts for pollution control and cleanup, as well as increases in total number of years sentenced for environmental criminals). In any case, EPA and the U.S. Department of Justice are focusing their attention on fewer cases, highlighting the continuing need for vigorous citizen suits.

Moreover, EPA has assigned 40% of its criminal investigators from environmental investigations to focus on terrorism-related investigations. Meredith Preston & Pat Phibbs, Nearly Half of EPA Criminal Investigators Refocused on Terrorism, Anthrax Cleanup, Daily Env't Rep. (BNA), Nov. 29, 2001, at AA-1.

Regarding the state level, see Press Release, OMBWatch, States Slack Off on Environmental Enforcement, available at www.ombwatch.org/execreport/enforcement.html (last visited Feb. 21, 2002).

Public access to environmental enforcement and compliance data can help to determine which facilities have violated environmental laws or are in significant noncompliance. See U.S. EPA, EC-Online, at www.epa.gov/r10earth/ec-on-line.html (last visited Oct. 9, 2001) (EPA enforcement data pilot project).

192. For example, according to a recent report by U.S. Public Interest Research Group, more than 26% of 1,730 facilities reviewed were found to be in "significant noncompliance" with their CWA permit for at least one quarter from October 1, 1998 to December 31, 1999. RICHARD CAPLAN, POLLUTER'S PLAYGROUND: HOW THE GOVERNMENT PERMITS POLLUTION (U.S. Pub. Interest Research Group 2001). Under the CWA, EPA defines "significant noncompliance" for a facility as: exceeding a monthly effluent limitation by 40% for a conventional pollutant or 20% for toxic pollutants that occurs for two months in a six-month period, or any exceedance that occurs for four months in a six-month period; exceeding a nonmonthly effluent limitation by 40% for a conventional pollutant or 20% for toxic pollutants; failure to submit a discharge monitoring report; violation of a compliance schedule; and failure to submit a compliance schedule report under 40 C.F.R. pt. 123.

Of the 42 industrial facilities in "significant noncompliance" for the entire 15-month period, over the past 5 years only 1 has received a fine; and approximately 40% of our waters are still not safe for swimming or fishing. Id. (noting that there have more than 36,000 beach closings and advisories since 1988; and in 1999, 48 states issued fish consumption advisories due to high levels of dangerous chemicals).

193. 405 U.S. 727, 2 ELR 20192 (1972).

194. In this case, the Sierra Club argued that it had standing to represent the environmental interests of the Mineral King Valley in a dispute over a proposed development (essentially, that the environment itself had standing). The Court rejected this argument, while holding that the Sierra Club may have representational standing through its members' standing. Under the circumstances, though, Sierra Club had not sufficiently argued that its members had standing. Dissenting, Justice William O. Douglas argued that the Court should have recognized the standing of "environmental objects to sue for their own preservation" and for the Sierra Club's right to represent these interests before the Court. Id. at 743, 2 ELR at 20196 (Douglas, J., dissenting). On remand to the district court, the Sierra Club modified its pleadings to specifically aver that its members had standing.

195. Id. at 738, 2 ELR at 20194.

196. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 3 ELR 20536 (1973) (holding that a student group had standing to challenge a proposed increase in fees on railroad freight that could reduce recycling, thereby increasing the consumption of raw natural resources and affecting the plaintiffs' use and enjoyment of those natural resources).

197. Peter M. Shane, Returning Separation-of-Powers to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines, 30 ELR 11081 (Dec. 2000); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992); Robert B. June, Citizen Suits: The Structure of Standing Requirements for Citizen Suits and the Scope of Congressional Power, 24 ENVTL. L. 761 (1994); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983).

198. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 64-65, 18 ELR 20142, 20146 (1987).

199. Id. at 59, 18 ELR at 20145. The CWA citizen suit provision allows prosecution of a "civil suit . . . against any person . . . who is alleged to be in violation . . . ." of the CWA, its implementing regulations, or a permit issued thereunder. 33 U.S.C. § 1365(a), ELR STAT. FWPCA § 505(a). So, a provision that is phrased to allow citizen suits for past violations might be interpreted differently. E.g., 42 U.S.C. § 7604(a)(1), ELR STAT. CAA § 304(a)(1) (CAA citizen suit provision); but see infra notes 215-224 and accompanying text (discussing the most recent Court decision regarding standing in citizen suits).

200. 497 U.S. 871, 20 ELR 20962 (1990).

201. Id.

202. 504 U.S. 555, 22 ELR 20913 (1992).

203. Id. at 563-64, 22 ELR at 20916.

204. Id. at 564 n.2, 22 ELR at 20916 n.2.

205. Id. at 579, 22 ELR at 20920.

206. See id. at 577, 22 ELR at 20918:

If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3.

See also Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury-in-Fact and Redressability Requirements, 30 ELR 10455, 10459-60 (June 2000).

207. Bennett v. Spear, 520 U.S. 154, 27 ELR 20824 (1997).

208. For a critique of this decision, see John D. Echeverria & Jon T. Zeidler, Barely Standing, ENVTL. F., July/Aug. 1999, at 21, 26.

209. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 28 ELR 20434 (1998); see, e.g., Echeverria & Zeidler, supra note 208; Karin P. Sheldon, Steel Co. v. Citizens for a Better Environment: Citizens Can't Get No Psychic Satisfaction, 12 TUL. ENVTL. L.J. 1 (1998).

210. 523 U.S. 83, 107, 28 ELR 20434, 20438 (1998).

211. See, e.g., Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ELR 10317, 10325-26 (May 2000).

212. Federal Elections Comm'n v. Akins, 524 U.S. 11 (1998).

213. Id. at 24-25 ("The information injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts."); see also id. at 21 ("this Court has previously held that a plaintiff suffers an 'injury in fact' when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.").

214. See, e.g., Natural Resources Defense Council v. Department of Energy, No. 01-2545 (D.D.C. Feb. 21, 2002), available at http://www.nrdc.org/media/docs/020227a.pdf (last visited Mar. 18, 2002) (compelling the Department of Energy to release documents under FOIA related to Vice President Cheney's energy task force).

215. 120 S. Ct. 693, 30 ELR 20246 (2000).

216. Id. at 701-02, 30 ELR at 20247.

217. Id. at 704, 30 ELR at 20247.

218. Indeed, the offending facility had been shut down, although the plaintiffs noted that it had retained its national pollutant discharge elimination system permit.

219. 120 S. Ct. at 704, 30 ELR at 20247.

220. Id. at 706, 30 ELR at 20249 (noting that the key issue under the facts of the case then became whether the plaintiffs' concern was reasonable).

221. Id. at 707, 30 ELR at 20249; see also id. at 706-07, 30 ELR at 20249:

It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that description. To the extent that they encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.

222. See Johnston, supra note 211, at 10320, 10325-26.

223. 120 S. Ct. at 706-07, 30 ELR at 20249; see also Johnston, supra note 211, at 10325-26 (criticizing the mootness precedent of Laidlaw).

224. 120 S. Ct. at 711, 30 ELR at 20250. The Court essentially noted that its prior dicta in Farrar v. Hobby, 506 U.S. 103 (1992) was simply dicta and did not repudiate the catalyst theory. Since the district court had made no finding with respect to the attorney fees, the Court did not rule on the matter. Cf. Hecla Mining Co. v. Washington Wilderness Coalition, No. 98-751 (U.S. Mar. 8, 1999) (denying defendant's petition for certiorari in a case that imposed a higher burden on successful defendants to recover attorney fees than successful plaintiffs).

225. 121 S. Ct. 1835 (2001). See Adam Babich, Fee Shifting After Buckhannon, 32 ELR 10137 (Jan. 2002).

226. See Johnston, supra note 211, at 10322-23 (discussing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 30 ELR 20369 (4th Cir. 2000), the en banc reversal of a Fourth Circuit decision denying standing, where the concurring judges noted the "sea change in constitutional standing principles" and similarly strongly worded decisions); Healy, supra note 204; Daniel A. Farber, Environmental Litigation After Laidlaw, 30 ELR 10516 (July 2000).

227. Johnston, supra note 211, at 10324, 10326.

228. See, e.g., Newman & Knight, supra note 88.

229. 120 S. Ct. 1858, 30 ELR 20622 (2000). Aside from the fact that this was a qui tam action seeking restitution from the Vermont Agency of Natural Resources for overbilling EPA, this case did not involve the interpretation or application of environmental laws. See Shane, supra note 197. The more general issue—under what circumstances citizens or NGOs can sue states and state agencies—is, however, quite applicable. The ruling in Vermont Agency would seem to limit the application of citizen suits against state organs for violations of environmental laws. See Stephen R. McAllister & Robert L. Glicksman, Federal Environmental Law in the "New" Federalism Era, 30 ELR 11122 (Dec. 2000); High Court Rulings May Limit Federal Suits Against States, Some Say, REINVENTION REP., July 14, 1999, at 22.

230. 248 F.3d 275, 31 ELR 20582 (4th Cir. 2001); see also West Virginia Highlands Conservancy v. Norton, No. 2:00-1062 (S.D. W. Va. 2001) (dismissing a SMCRA case against the Director of the West Virginia Division of Environmental Protection as barred by the Eleventh Amendment). See Daniel L. Rosenberg, Mountaintop Mining and U.S. EPA's Proposed Rule Change: A Giant Step Backward for the Clean Water Act, 30 ELR 11175 (Dec. 2000) (providing a history of the controversy).

231. For example, federal, state, and local environmental enforcement agencies around the Chesapeake Bay established an environmental crimes hotline in 1998. See http://baltimore.fbi.gov/contact/fo/balt/cbeec.htm (last visited Mar. 18, 2002).

232. See supra notes 285-292 and accompanying text.

233. But see Susan Bruninga, Governments Secretly Work to Weaken Public Participation Provisions, Groups Say, Int'l Env't Rep. (BNA), May 10, 2000, at 385-86.

234. See supra note 287 and accompanying text.

235. The Democracy and Governance programs of USAID have supported the development of laws, policies, and practice that improves the rule of law (including effective public access to justice), advances good governance (such as transparency and participatory decisionmaking), and strengthens civil society, as well as promoting fair and democratic elections. See http://www.usaid.gov/democracy/ (last visited Mar. 18, 2002). This emphasis on promoting democracy and governance is likely to continue; in announcing a planned $ 5 billion increase in foreign aid over the next three fiscal years, President George W. Bush dwelled on the role of transparency and rule of law in addressing corruption and promoting development. See http://www.whitehouse.gov/news/releases/2002/03/20020314-7.html (last visited Mar. 18, 2002). Some of the USAID projects funded through its environment offices have promoted good governance in the management of natural resources, including community-based natural resource management. See http://www.usaid.gov/environment/promsust.html (last visited Mar. 18, 2002).

236. See http://www.ftaa-alca.org/scomm_e.asp (last visited Mar. 18, 2002).

237. See infra notes 46-108 and accompanying text.

238. The United States has noted frequently that it agrees with the vast majority of the provisions of the Aarhus Convention. Indeed, many of the mechanisms advanced by the convention originated in the United States, such as EIA, notice-and-comment rulemaking, environmental citizen suits, and freedom of information laws. The primary U.S. concern appears to be federalism issues arising from the application of the convention to subnational governmental authorities, such as states, which are not necessarily bound by federal administrative laws.

239. U.S. EPA, FY 2003 ANNUAL PERFORMANCE PLAN AND CONGRESSIONAL JUSTIFICATION, QUALITY ENVIRONMENTAL INFORMATION VII-10 (2002), available at http://www.epa.gov (last visited Apr. 20, 2002) [hereinafter ANNUAL PERFORMANCE PLAN].

240. See http://www.irtk.org/coalition_partners.html (last visited Apr. 10, 2002). The international right-to-know coalition includes groups such as the AFL-CIO, Amnesty International, and Friends of the Earth.

241. "Brownfields" Cleanup Beefed Up, WASH. POST, Jan. 12, 2002, at A3. See Dale A. Guariglia et al., The Small Business Liability Relief and Brownfields Revitalization Act: Real Relief or Prolonged Pain?, 32 ELR 10505 (Apr. 2002).

242. Binder et al., supra note 172, at 11135.

243. Id. at 11150.

244. See, e.g., SUSTAINABLE AMERICA, supra note 41, ch. 3, App. B3. See also Mintz, supra note 112.

245. See, e.g., the Pacific Institute for Studies in Development, Environment, and Security and the Global Environmental Management Initiative Roundtable on "Defining Transparency: Expectations and Obstacles," Oakland, Cal. (Oct. 24, 2001). See also ISO 14001 Environmental Management Systems and Public Policy (proceedings of a Workshop held on July 29, 2001, by the Pacific Institute in Oakland, Cal.).

246. J. Clarence Davies, Public Participation in Environmental Decision-making and the Federal Advisory Committee Act, Testimony before the U.S. House of Representatives, Government Reform and Oversight Committee (July 14, 1998).

247. TERRY DAVIES ET AL., RESOURCES FOR THE FUTURE, REFORMING PERMITTING 62-63 (2001).

248. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, 274 F.3d 771, 32 ELR 20425 (3d Cir. 2001) (rejecting claim based on § 1983); Alexander v. Sandoval, 121 S. Ct. 1511 (2001) (no private right-of-action to enforce disparate impact regulations pursuant to Title VI of the Civil Rights Act of 1964); Mank, supra note 175.

249. See, e.g., What September 11th Really Wrought, ECONOMIST, Jan. 12, 2002, at 23-25 (discussion of polls).

250. See http://www.globalforestwatch.org (last visited Apr. 11, 2002); http://www.fscoax.org (last visited Apr. 11, 2002).

251. Editorial, "Protection" From Knowledge, WASH. POST, Jan. 28, 2002, at A21. The editorial reflects on Maryland's decision to revise its approach to amending its records law to take a less sweeping approach.

252. As much as it may be needed, a constitutional amendment to advance information dissemination seems politically unlikely. Nevertheless, it should be noted that some of the shortcomings of public access to information, process, and courts can only be resolved by constitutional reform. For example, the entire regulatory framework for access to information and public participation is statutory and susceptible to the political climate of the day. Thus, following the September 11 attacks, serious proposals to exempt a large number of facilities from EPCRA and FOIA have been entertained. While these are purportedly advanced to combat terrorism, others perceive some of these measures as opportunism by industry in seeking to get rid of requirements to release potentially embarrassing information. See, e.g., Hill, Activists Fear Bush Using Security Issue to Limit Data, EPA Rules, SUPERFUND REP., Oct. 29, 2001, at 34-35.

A constitutional amendment is also necessary to ensure effective public access to courts to enforce environmental (and other) laws. Relying on a separation-of-powers interpretation, the Court has significantly curtailed the ability of Congress to guarantee public access to courts through statutory citizen suit provisions. See Echeverria & Zeidler, supra note 208, at 21. Moreover, the Court has ruled, in a series of recent cases, that Congress cannot pass laws empowering citizens to sue state authorities. See supra note 229 and accompanying text. Although the Court gave an encouraging signal in Laidlaw regarding citizen suits, the vast majority of its decisions have reduced the ability of people to access courts. Only an explicit constitutional amendment can ensure that people and NGOs will be able to seek redress in courts to protect their environment, health, livelihood, and ability to participate in government decisionmaking processes.

If a constitutional amendment were developed, it would need to address not only separation-of- powers issues, but also the balance of power between the federal government and states. Such an amendment could be purely procedural, applying to all subject matters, environmental and otherwise. It could also be embedded in a potential constitutional right to a clean, balanced, and healthy environment.

253. See Policy Recommendation 5 on Information in Sustainable America, SUSTAINABLE AMERICA, supra note 41, ch. 3. See http://www.sustainable-development.gov.uk/ and http://iisd.1.iisd.ca/measure/comp.index.asp (both last visited Mar. 29, 2002), for two sources of examples at all levels of government. See also DONELLA MEADOWS, INDICATORS AND INFORMATION SYSTEMS FOR SUSTAINABLE DEVELOPMENT (Sustainability Inst. 1998).

254. The United States has focused particularly on transparency, meaningful public participation, and the rule of law as basic ingredients in reducing corruption in business and promoting private-sector investment in developing countries. See Statement of Paula J. Dobriansky, Remarks to the UNECE Regional Ministerial Meeting, Sept. 24, 2001. See also UNECE, Ministerial Statement for the World Summit on Sustainable Development, ECE/AC.22/2001/4Rev. 1 (Sept. 2001).

255. See http://epa.gov.ocfo/finstatement/2000ar/ar00_goal7.pdf (last visited Mar. 25, 2002); ANNUAL PERFORMANCE PLAN, supra note 239, Goal 7. This goal has now been reworded as improving the quality of environmental data.

256. See http://www.accessinitiative.org (last visited Jan. 14, 2002).

257. OUR COMMON JOURNEY, supra note 132, at 265. The report notes that at this transition stage indicators are "likely to be biased, incorrect, inadequate" but "indispensable."

258. NATIONAL ACADEMY OF PUBLIC ADMINISTRATION REPORT TO CONGRESS, SETTING PRIORITIES, GETTING RESULTS: A NEW DIRECTION FOR EPA 166-67 (1995). The report also notes that the principles for federal statistical agencies call for the president to appoint the director for a fixed term with the consent of the Senate. See also NATIONAL COMMISSION ON THE ENVIRONMENT, CHOOSING A SUSTAINABLE FUTURE 110-11 (1993). Chapters 5 (Governance for Sustainable Development) and 8 (Preventing Pollution) of the text address the larger issues of strengthening environmental institutions.

259. Memorandum from Christine Todd Whitman, Administrator, U.S. EPA, to Assistant Administrators. General Counsel, Inspector General, Deputy Chief Financial Officer, Associate Administrators, Regional Administrators (undated). The memorandum notes that the CEQ has agreed to convene an interagency group to inventory and evaluate work regarding indicators. In her CIO Update for Feb. 25, 2002, Chief Information Officer Kim Nelson indicated that EPA looked forward to working with the Environmental Council of the States, other environmental partners, and stakeholders in developing the state-of-the-environment report, as well as on longer term use of indicators. Her April 12, 2002, CIO Update reports on a NAS workshop aimed at bridging the chasm between public health and environment in developing environmental health indicators.

260. SUSTAINABLE AMERICA, supra note 41, ch. 5, Policy Recommendation 7. See also id. ch. 3.

261. See http://minerals.usgs.gov/minerals/mflow (last visited Apr. 15, 2002). For a broad policy view, see KENNETH GEISER, MATERIALS MATTER: TOWARD A SUSTAINABLE MATERIALS POLICY (2001).

262. NATIONAL RESEARCH COUNCIL, ECOLOGICAL INDICATORS FOR THE NATION (2000); H. JOHN HEINZ III CENTER FOR SCIENCE, ECONOMIC AND THE ENVIRONMENT, DESIGNING A REPORT ON THE STATE OF THE NATION'S ECOSYSTEMS: SELECTING MEASUREMENTS FOR CROPLANDS, FORESTS, AND COASTS AND OCEANS (1999). See also ENVIRONMENTAL LAW INSTITUTE, NEW YORK STATE BIODIVERSITY PROJECT NEEDS ASSESSMENT (2001) (analyzing how statewide assessment would provide data to support local governments and resource agencies in making economic development decisions).

263. PEOPLE AND ECOSYSTEMS: THE FRAYING WEB OF LIFE, WORLD RESOURCES 2000-2001 (World Resources Inst. 2000). See also http://earthtrends.wri.org (last visited Apr. 3, 2002).

264. A CITIZEN'S PLATFORM FOR OUR ENVIRONMENTAL RIGHT-TO-KNOW 7 (OMB Watch Mar. 2001) [hereinafter CITIZEN'S PLATFORM].

265. See http://www.ombwatch.org (last visited Apr. 20, 2002) (especially discussion after Sept. 11, 2001); CITIZENS PLATFORM, supra note 264.

266. Testimony of Elaine Stanley, Director, Office of Information Analysis and Access, U.S. EPA Office of Environmental Information, before the Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure, U.S. House of Representatives (Nov. 8, 2001).

267. E-Government Act of 2001, S. 803 (introduced May 1, 2001). See Press Release, OMB Watch, Public Access Key to E-Government (undated), available at http://www.ombwatch.org/article/articleview/618/1/1/ (last visited Mar. 25, 2002).

268. See ENVIRONMENTAL LAW INSTITUTE, BUILDING CAPACITY TO PARTICIPATE IN ENVIRONMENTAL PROTECTION AGENCY ACTIVITIES: A NEEDS ASSESSMENT AND ANALYSIS (1999); Mike Ferullo, Health Officials Endorse System to Monitor Diseases, Environmental Exposure in U.S., Daily Env't Rep. (BNA), Mar. 7, 2002, at A-7.

269. See supra note 46.

270. One example is U.S. EPA, IRM STRATEGIC PLANNING TASK FORCE, USING INFORMATION STRATEGICALLY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT: RECOMMENDATIONS FOR COMPREHENSIVE INFORMATION RESOURCES MANAGEMENT (1994) (report prepared by Environmental Information and Assessment Committee, National Advisory Council for Environmental Policy and Technology) (EPA 270-K-94-002).

271. See http://www.whitehouse.gov/omb/inforeg/egovstrategy.pdf (last visited Mar. 25, 2002).

272. PRESIDENT'S INFORMATION TECHNOLOGY ADVISORY COMMITTEE, TRANSFORMING ACCESS TO GOVERNMENT THROUGH INFORMATION TECHNOLOGY (2000); National Coordination Office for Information Technology website, at http://www.itrd.gov (last visited Apr. 20, 2002).

273. 271 See www.nutrient.net.org (last visited Apr. 10, 2002). See also http://www.ghgprotocol.org (last visited Apr. 10, 2002).

274. See http://www.safeclimate.net (last visited Jan. 14, 2002). See also http://www.redefinirtgprogress.org (last visited Apr. 10, 2002).

275. Letter to Kim T. Nelson, Assistant Administrator, Office of Environmental Information, U.S. EPA, from John Graham, Administrator, U.S. Office of Management and Budget (Mar. 4, 2002) (on file with authors). The letter encourages EPA to take steps to improve the utility of data on environmental performance of industrial facilities by adopting single-entry electronic data systems and speeding availability of data reported under the TRI as well as adopting single-facility identification numbers.

276. See, e.g., JEANNE HERB & JENNIFER SULLIVAN, STATE CONSOLIDATED REPORTING PROJECTS: A COMPARISON OF THE CURE PROJECT AND THE TELLUS INSTITUTE ITRP (Tellus Institute, undated); RFD & ASSOCIATES, INC., CONSOLIDATED REPORTING PROJECT: A ROAD MAP FOR A FACILITY-BASED INTEGRATED DATA MODEL (1999) (prepared for the Texas Natural Resource Conservation Commission as part of the Computer and Electronics Sector of EPA's Common Sense Initiative); JOHN D. HOWAY ET AL., EXISTING REPORTING VERSUS NEEDS FOR PUBLIC ENVIRONMENTAL PERFORMANCE DATA ABOUT TOXIC CHEMICALS AT INDUSTRIAL FACILITIES (Sept. 1997).

277. Letter from multiple signatories to Christine Todd Whitman, Administrator, U.S. EPA (Sept. 14, 2001) (on file with authors). The letter stressed making reform of environmental information policy, management, and systems a top priority. It resulted from a process organized by Carol Andress, of Environmental Defense, and Jeanne Herb, of the Tellus Institute, and signed by 19 participants from environmental organizations, research institutes, and business groups.

278. See John C. Dernbach, Learning From the President's Council on Sustainable Development: The Need for a Real National Strategy, 32 ELR 10648 (June 2002).

279. See http://www.loka.org (last visited Jan. 14, 2002); http://www.cnt.org (last visited Jan. 15, 2002).

280. For example, Eugene, Oregon, modified its municipal charter to require manufacturing companies with 10 employees or more to report each year on their use, storage, and emission of 1,300 listed hazardous chemicals. These reports utilize materials balance accounting (the raw materials must balance with the outputs, including waste and products), and they are made available at the Eugene Public Library. The program is funded by a fee imposed on reporting facilities. In 2001, 45 facilities filed reports for 2000. See Eugene, Oregon, Toxics Right-to-Know Charter Amendment, at www.ci.eugene.or.us/firedept/toxics/toxiccht.htm (last visited Apr. 12, 2002); City of Eugene, Toxics Right-to-Know Database, at www.ci.eugene.or.us/toxics/ (last visited Apr. 12, 2002). A state legislative effort to pre-empt the charter amendments failed by a narrow margin. See Debra Gwartney, Tough Law on Toxics Sets Up Battle, OREGONIAN, Jan. 24, 1999, available at www.oregonlive.com/news/99/01/st012402.html (last visited Apr. 12, 2002). A lawsuit arguing that this initiative is preempted by state law led to changes in the fee structure, but the overall program remains in place. See Advocates for Effective Regulation v. City of Eugene, 981 P.2d 368 (Or. App. 1999).

Another innovative reporting initiative at the state level is a Vermont labeling law for consumer products containing mercury. See Jake Brown, U.S. Appeals Court Upholds Vermont Law on Labeling of Mercury-Containing Products, Daily Env't Rep. (BNA), Nov. 9, 2001, at A-12.

281. See supra notes 191-231 and accompanying text.

282. See supra note 269 and accompanying text.

283. Compare 33 U.S.C. § 1365, ELR STAT. FWPCA § 505, with 42 U.S.C. § 7604, ELR STAT. CAA § 304.

284. Recall that Congress was able to convince all 50 states to set the speed limit at 55 miles per hour by making it a condition for receiving federal highway funds. It is noteworthy that the Fourth Circuit, in Bragg, did not extend the federal citizen suit provision in SMCRA to the state delegated program. Congress could address this by clearly articulating that citizen suit provisions under environmental laws enable individuals and NGOs to file citizen suits in federal court, even when a state has primary responsibility for administering a federally mandated program. Congress could also require states assuming responsibility for an environmental statute to waive their sovereign immunity under the Eleventh Amendment, so that they are subject to environmental citizen suits.

285. See, e.g., supra note 254 and accompanying text.

286. See, e.g., supra notes 270-275 and accompanying text.

287. See Bruch & Czebiniak, supra note 24, and accompanying text.

288. See, e.g., Kevin A. Baumert & Elena Petkova, How Will the Clean Development Mechanism Ensure Transparency, Public Engagement, and Accountability?, CLIMATE NOTES, Nov. 2000.

289. See http://www.usaid.gov/gda (last visited Apr. 20, 2002).

290. See ISP, supra note 27.

291. For example, the World Bank Inspection Panel was adopted as a direct result of Congress requiring it as a condition for continued U.S. contributions to the World Bank.

292. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 9 (1987).

32 ELR 10784 | Environmental Law Reporter | copyright © 2002 | All rights reserved