West Virginia Law Review

Document Type



Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authoriz- ing projects, and (2) they allow some degree of public participation. This Arti- cle focuses on the latter of these two features. Public participation in NEPA-style regimes generally means public consultation: Information is disseminated and civil society is allowed to com- ment. Depending on a range of factors-some political and some legal-comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public's influence is often limited in practice, the mere fact of public participation at the project level-as opposed to participation at the candidate level through elections or at the issue level through referenda-is exceptional. In the United States and many other coun- tries, NEPA and its counterparts represent a break from the normal rule of ex- ecutive decision-making by encouraging public involvement and deliberative, participatory democracy. Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severe- ly limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not sur- prising. By its very nature, consultation implies limited influence. In this Article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation require- ment in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation ap- proach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism. Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inher- ent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive pro- jects). While the benefits of these projects are often spread around an entire na- tion or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.



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