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Conflicts Between Models and Participation in Environmental Law and Planning James D Hastings Law Journal Volume 56 | Issue 5 Article 2 1-2005 Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning James D. Fine Dave Owen Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation James D. Fine and Dave Owen, Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning, 56 Hastings L.J. 901 (2005). Available at: https://repository.uchastings.edu/hastings_law_journal/vol56/iss5/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Technocracy and Democracy: Conflicts between Models and Participation in Environmental Law and Planning JAMES D. FINE* & DAVE OWEN** I. INTROD UCTION ........................................................................................... 903 II. THE ORIGINS OF THE PARADOX: ENVIRONMENTAL LAW, SCIENCE, AND PUBLIC PARTICIPATION .................................................... 907 A. THE ENTRENCHMENT OF MODELING IN ENVIRONMENTAL LAW .... 907 I. SCIENCE AND ENVIRONMENTAL LAW: THE ROOTS OF MODELING REQUIREMENTS ...................................................... 907 2. MODELING, THE SIP PROCESS, AND THE CLEAN AIR ACT ...... 912 B. ENVIRONMENTAL REGULATION AND PUBLIC PARTICIPATION ......... 916 I. ORIGINS OF PUBLIC PARTICIPATION PROVISIONS ...................... 916 2. PUBLIC PARTICIPATION AND THE SIP PROCESS ........................ 919 III. MODELS AND THE DECISIONMAKING PROCESS ...................................... 921 A . LIMITATIONS OF M ODELS ................................................................ 922 * Department of Environmental Science, University of San Francisco. Ph.D., Energy and Resources, University of California. Dr. Fine can be reached at [email protected]. A portion of the case study research was conducted as part of James Fine's Ph.D. dissertation, and was supported by the Assistant Secretary for Fossil Energy, Office of Natural Gas and Petroleum Technology, through the National Petroleum Technology Office under the U.S. Department of Energy Contract No. DE-ACo3 -7 6SFooo98. The views and opinions of the authors expressed herein do not necessarily state or reflect those of the United States Department of Energy or the Lawrence Berkeley National Laboratory. Dr. Fine's case study research was also supported by the Institute of Urban and Regional Development. Dr. Fine thanks Drs. Nancy Brown, Gene Rochlin, and Elizabeth Deakin for their scholarly guidance on early drafts, Dr. Timothy Duane for his encouragement, and the many individuals who agreed to be interviewed, notably Dr. Steven Ziman, Robin DeMandel, and staff at the San Joaquin Valley Unified Air Pollution Control District, Bay Area Air Quality Management District, and the California Air Resources Board. The case study research is based on data gathered through archival review of scholarly literature and popular press, as well as thirty interviews with planners, modelers, and policy-makers at local, state and federal air quality planning agencies, and with representatives from the regulated and environmental communities. These interviews took place mostly in 2ooo and 2ooi and were thus retrospective in discussing planning processes and decisions in the early 199os. ** Associate Attorney, Rossmann and Moore, San Francisco, California. J.D., University of California School of Law (Boalt Hall), 2002; B.A., Amherst College, 1996. Dave thanks Professor Holly Doremus for helpful comments on an earlier draft, and the staff at Hastings Law Journal for their hard work and thoughtful edits. Dave can be reached at [email protected]. [90I] HASTINGS LAW JOURNAL [Vol. 56:9oi I. U NCERTAINTY ...........................................................................922 A. INHERENT LIMITS OF SIMULATION ..................................... 922 B. P REDICTION ........................................................................ 922 C. COMPLEXITY IN MODEL FORMULATION ............................. 923 D. INPUT DATA LIMITATIONS ................................................. 924 E. O PACITY ............................................................................. 926 2. SUBJECTIVITY ............................................................................. 926 A. MODEL SELECTION ............................................................. 927 B. ASSUMPTIONS ..................................................................... 928 C. RESULTS COMMUNICATION ................................................ 929 D. UNDERPREDICTION: THE OUTCOME OF UNCERTAINTY AND SUBJECTIVITY .............................................................. 930 B. IMPLICATIONS OF MODEL LIMITATIONS ON PLANNING P ROCESSES .......................................................................................930 I. COMPLEXITY AND THE BLACK Box PROBLEM .......................... 930 2. CONCEALED UNCERTAINTIES ................................................... 931 3. CONCEALED JUDGMENTS AND POLICY CHOICES ...................... 932 4. RELOCATION OF NEGOTIATION AND DECISION-MAKING .......... 932 5. A CONFLUENCE OF PARTICIPATION PROBLEMS: THE SIGNAL- TO-NOISE PROBLEM ................................................................... 933 C. AFFECTED GROUPS .......................................................................... 934 I. P LA NN ERS ................................................................................. 934 2. JUDICIAL REVIEW ..................................................................... 935 3. ECONOMICALLY DISADVANTAGED COMMUNITIES .................... 936 IV. MODELS AND PLANNING IN THE SAN JOAQUIN VALLEY ....................... 938 A. INTRODUCTION ................................................................................. 938 B. THE SETTING AND THE STAKEHOLDERS .......................................... 940 I. GEOGRAPHY AND POLLUTION ................................................... 940 2. PEOPLE, ECONOMY, AND HISTORY ....................................... 9. 40 3. THE POLLUTION PROBLEM ........................................................ 944 4. THE REGULATORS ..................................................................... 946 C. DEVELOPMENT OF THE 1994 AIR QUALITY PLAN ........................... 949 I. EARLY RESEARCH AND PLANNING EFFORTS IN THE SJV ........ 949 2. THE 1994 PLAN ........................................................................ 950 A. THE ADVISORY COMMITTEES ............................................. 951 B. THE MODELING AND PLAN DEVELOPMENT PROCESS ....... 952 C. APPROVAL OF THE PLAN .................................................... 957 3. THE CONTENTS OF THE PLAN ................................................... 958 4. UNCERTAINTY IN THE PLAN ................................................... 960 D. DISAPPOINTING RESULTS ................................................................ 962 E. CRITIQUING THE PLANNING PROCESS ............................................. 965 I. MODELS, THE SAN JOAQUIN VALLEY, AND THE SHORTCOMINGS OF TECHNOCRACY ............................................ 965 2. MODELS AND THE ABSENCE OF INCLUSION ............................. 967 3. DISTRIBUTIONAL IMPACTS AND THE ABSENCE OF E XCLUSION ............................................................................... 969 F. SAN JOAQUIN VALLEY STUDY SUMMARY ........................................ 970 May 20051 TECHNOCRACY AND DEMOCRACY V. RECONCILING MODELING AND PUBLIC PARTICIPATION .......................... 970 A. UNDERSTANDING MODELING .......................................................... 971 I. D ISCUSSING U NCERTAINTY ....................................................... 971 2. D ISCUSSING SUBJECTIVITY ........................................................ 973 B. PROVIDING RESOURCES FOR UNDERSTANDING ............................... 974 I. EDUCATING THE PUBLIC ........................................................... 975 2. INCREASING EXPERT REPRESENTATION .................................... 976 C. IMPROVING JUDICIAL UNDERSTANDING OF MODELING .................. 977 V I. C ONCLUSION ........................................................................................... 979 I. INTRODUCTION Many of our environmental laws create an unfortunate paradox. They mandate science-based planning, and that mandate often translates into a practical or even legal requirement to use complex simulation models.' The same laws also contain provisions for public participation in government agency environmental planning and decision-making. When agencies engage in technical decision-making, however, and particularly when they use complex models, the reasoning underpinning decisions becomes difficult for public participants to understand. As a result, legal mandates for science-based planning and for public participation come into conflict, and processes legally required to be transparent and open can instead become opaque and closed. This conflict is inherent in many environmental statutes, and is acute in the State Implementation Plan (SIP) process required by the Clean Air Act.' SIPs codify states' plans for meeting federal air quality goals? This is a rather important function; although long recognized as an environmental concern,4 air pollution
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