The Consequences of Excluding Citizen Oversight

Blanche Brauns: Rainbow Out Of Lake Michigan ~Enlarge

As the gulf oil disaster drones on, we're starting to hear accounts of what we didn't learn from past disasters that we should have. Say from the Exxon Valdez spill 20 years ago, for example.

To that point, Boston College Environmental Law Professor Zygmunt Plater spoke recently on NPR about the aftermath of the Exxon Valdez spill, and the subsequent Oil Pollution Act law passed to minimize the chance of reoccurrences.

While some good certainly came from the law, Plater said it was "heavily lobbied" and became diluted. Specifically, lobbyists were successful in excluding citizen oversight councils made up of locals. Had citizen oversight been codified in the law, Plater is certain that gulf citizens, including the fishermen, would never have signed on for a platform to drill as deep and with the risks as those of the Deepwater Horizon.

Plater insists that independent citizen councils are necessary because it is inevitable that agency staff and the industries they regulate will become too close. It's not necessarily an illegal or quid pro quo coziness. It's just that they have to work together and it becomes too easy or makes sense, at least in the regulator's mind, to look the other way or cut a break when it isn't warranted.

They're the insiders.

What's needed is that third entity, independent citizens, who are not on the inside.

Which takes me to the federal efforts to restore the Great Lakes, most commonly known as the Great Lakes Restoration Initiative (GLRI).

No disaster* with GLRI but some of Plater's principles also apply.

The restoration effort is in process and the USEPA is on the cusp of doling out the first slice of $475 million already approved, with more to follow. Another $300 million is proposed for 2011. A few good projects focused on results are on the final candidate list - but of course there is the usual complement of studies (yes, more studies) and monitoring. But that's how bureaucracy works when you have a dozen federal agencies plus eight states to deal with - everyone has to get their piece of the action and it's considered the cost of doing business with the feds, I guess.

But who wants to complain when so much money is at stake.

And now comes proposed legislation, the Great Lakes Ecosystem Act of 2010, that would permanently authorize GLRI as the mechanism for restoring the Great Lakes. If passed, this will be a good outcome. It means that there will be a vehicle in place to serve as the basis for federal action. Of course, it would still have to be funded every year but so far so good.

However, here is where I become concerned.

The bills (S. 3073 and HR. 4755) also provide under the heading "governance and management" for two separate entities, a council and a committee, to provide the leadership structure for restoration. About eight federal agencies are represented, plus the governors, mayors, tribes, commissions, industry, an environmental group and a few others. As I read the bill I count 46 members from mostly government agencies of a sort.

With Professor Plater's model as a reference, these are the "insiders."

"Insiders" are the government folks,  agencies, and a few others who more or less have worked on Great Lakes issues for years. They know each other and the system. They're dedicated and concerned professionals but they aren't likely to ruffle feathers if a few tens of millions dollars here and there are allocated to a marginal study instead to one of those "shovel ready" projects.  Paraphrasing Lyndon Johnson, they know that to git along, you have to get along.

What's missing? You guessed it, citizens....

.... Professor Plater's third party that remains at arms length because it isn't on the inside. It is not beholden to any agency, governor, or commission. It isn't applying for federal money and has no financial connection to the process. It doesn't want anything from anybody and exists only to provide independent and objective advice, oversight, and to report what it sees.

If we can provide room for 46 federal, state, city, agency, and commission members, what would be the problem with including another eight comprised of one citizen from each state?

I guess an argument could be made that citizens are represented by the elected officials. Sorry, I just don't find that to be credible. Remember, those elected officials are part of the "insider" group and their objectivity is subject to compromise because they want a slice of that $475 million.

I'm not sure how citizens were excluded. I do know that in the GLRI comment period there were credible calls for a mechanism for citizen involvement.

S. 3073 is being "marked up" this week which means it will be put into its final form to be voted on.

There is still time for the bill's sponsors, Senator Carl Levin (D-MI) and Representative Vern Ehlers (R-MI), to choose inclusion over exclusion. They and those advising them should tell the committees responsible for moving the legislation along to insert a meaningful role for citizen involvement. 

If they do, the end result will be better and have more credibility than if the work is done only by insiders.

I suspect Law Professor Prater would agree.  

gw 

*For a Great Lakes example of the perils of the regulator being too close with the industry it regulates check out Jeff Alexander's book, Pandora's Locks. Pandora's Locks tells the story of the environmental disaster that aquatic invasives are for the Great Lakes.

In it, Alexander chronicles the relationship between the Coast Guard and the shipping industry.

Here's an excerpt.

"The Coast Guard was extraordinarily friendly with the shipping industry it was supposed to regulate, which allowed shipping companies to keep meaningful ballast water regulations at bay for three decades."

Discharged ballast water from ocean going ships is the primary source for invasives in the Great Lakes.   

The Great Lakes are now home to over 180 aquatic invasives with Asian Carp knocking at the door.