(2014) A case of the Emperors new clothes: A critical ex- amination of public participation in ...

261 Pages·2016·2.08 MB·English

A CASE OF THE EMPEROR’S NEW CLOTHES:
A CRITICAL EXAMINATION OF PUBLIC PARTICIPATION
IN ENVIRONMENTAL DECISION-MAKING

Zainab Khan

A thesis submitted in partial fulfilment of the requirements of the University of
the West of England, Bristol for the degree of
Doctor of Philosophy

Faculty of Business and Law, University of the West of England, Bristol
September 2014
ABSTRACT
The purpose of this doctoral research is to critically evaluate the public participation principle
in environmental decision-making. Public participation is widely regarded as forming part of
the corpus of international environmental law and has been recognised globally by the full
breadth of legal doctrine from constitutional provisions, European Directives to human rights
treaties. Proponents of the participation concept consider it to be a praised tool of
environmental democracy which draws upon the principle’s underlying theoretical origins
which are rooted in participative democratic theory. Participation is largely seen as an
inherently good thing- but this status has not been subject to sufficient academic
interrogation, this research will explore whether it is an appropriate tool for meeting the
objectives claimed. Proponents of participation, of which there are many, can appeal to three
distinct justifications for participation: first, that it is good for government because it can be
applied to ensure administrative expedience; further that it is a process that confers
democratic legitimacy, encouraging active citizenry; and finally that it can lead to better
environmental decisions.
In order to make a rigorous and original contribution to the literature in this field, the
discussion is framed around an innovative conceptual analytical framework drawing on the
justifications for participatory decision-making indicated by the 1969 Skeffington Report:
People and Planning. This research interrogates the validity of the justifications by
examining the experience of participation for all the major interests; the State, society and the
environment. It does so with reference to the extended case study of the 2003 GM Nation
public debate.

This copy has been supplied on the understanding that it is copyright material and that no
quotation from the thesis may be published without proper acknowledgment.
ACKNOWLEDGMENTS
There are many people who have supported me along this journey to whom I must express
my deepest thanks.
Thank you to my supervisors Dr Benjamin Pontin and Evadne Grant for their inspiration,
mentoring and guidance which have been indispensable in the creation of this thesis.

I would like to acknowledge the financial and academic support of the University, with
particular thanks to Professor Adrian Chandler who sourced the initial bursary and teaching
opportunities that allowed me to begin this research and my academic career.
Thank you to Shilan Shah-Davis, Dr Eleanor Harries and Iain McDonald for their invaluable
comments on various chapters of this research. Special thanks to Daniel Jasinski for his
assistance with the bibliography and also the final formatting of the thesis.
I express my warm thanks to all my friends and colleagues in the Department of Law who
cheered me on to cross the finish line when at times it seemed to be a goal so far away, in
particular to my office mate Dr Jessica Elliott who has had to endure my repeated
monologues of self-loathing for the past 5 years.
Above all I would like to thank my hard-working parents who have made endless sacrifices
so that my brother and I could pursue academic success.
Thank you to my father who raised me with a love of history and for encouraging me to think
critically about the political world in which we live, as well as bank rolling my indulgence in
postgraduate study. To my wonderful mother who has always been a back bone of support
and raised me to be resilient in challenging times. Words cannot express my gratitude for
your love, patience and nurturing support, in particular during the final year of this process.

For any errors that may remain in this work, of course, the responsibility is entirely my own.
This thesis is dedicated to my wonderful parents.
CONTENTS
Table of Cases i
Table of Legislation iv

Chapter One: Introduction
1.0 The Aim of Research 1
1.1 Methodology 3
1.2 Rationale behind the Thesis 6
1.3 Scope and Contribution of this Research 7
1.4 Limitations 8
1.5 A Note on Participative Democratic Theory 9
1.6 An Overview of the Research 15

Chapter Two: The Public Participation Principle in a Law and Policy Context
2.0 Introduction to the Chapter 19
2.1 The International Drivers of the Aarhus Convention 19
2.2 An Overview of the Aarhus Convention 23
2.2.1 Pillar I: Access to Information 24
2.2.2 Pillar II Public Participation in Decision Making 28
2.2.3 Pillar III Access to Justice in Environmental Matters 32
2.2.4 The Aarhus Convention Compliance Committee 34
2.3 Arnstein’s Ladder of Citizen Participation 40
2.3.1 Non Participation 43
2.3.2 Tokenism 45
2.3.3 Citizen Power 47
2.4 Theoretical Justification for Public Participation 49
2.4.1 People and Planning: Skeffington Report 53
2.4.2 Good for Government –Participation as Administratively Expedient 56
2.4.3 Securing Legitimacy through the Representiveness of Participation 59
2.4.4 Participation as a Problem solving Tool for Better Environmental Decisions 63
2.5 Conclusion 66

Chapter Three: Public Participation, Administrative Expedience and the State
3.0 Introduction to the Chapter 68
3.1 Rebuilding Public Trust in Government Decision Making 69
3.1.1 Participation’s Transformative-but-Deleterious Effect on Civil Society Opposition 72
3.1.2 Participation can deepen the Disillusionment and Cynicism towards Government
‘Seriously Flawed and Manifestly Inadequate’, the UK Energy Review 2006 79
3.2 GM Nation? A public Debate on GM Crops in Britain (Part 1) 83
3.2.1 Motivation for the Debate & the Creation of AEBC 88
3.2.2 Participatory Techniques Used in GM Nation 97
3.2.3 Public Attitudes: Findings of the Debate – Cynicism and Distrust 101
3.2.4 Evaluating the Administration of the GM Nation 105
3.2.5 The COI 106
3.2.6 Interpreting the Choice of Participatory Mechanisms 111
3.3 Conclusion 113

Chapter Four: The Legitimating Justification for Public Participation – Democracy and
Environmental Justice
4.0 Introduction to the Chapter 119
Assumptions about Society Inherent in Public Participation Law
4.1 The Universal Citizen 121
4.1.1 Habermasian Communicative Theory 124
Socio Economic, Ratio & Gender Inequalities
4.1.2 Socio Economic 126
4.1.3 Race and Gender 139
4.2 The Impact of Inequalities on Participative Capacity 143
4.2.1 Communicative Authority- The Forceless Force of the Better Argument 147
4.3 GM Nation? A Public Debate on GM Crops in Britain (Part II) 148
4.3.1 Influence of the Press and Friends of the Earth Campaign 156
4.4 Conclusion 159

Chapter Five: Problem Solving and the Issue of Natures Voice Within Public
Participation
5.0 Introduction to the Chapter 164
5.1 Human-Orientated Environmental Law 166
5.1.1 ‘Humaniacs’, Environmental Extremists & the Pioneers of Wild Law Philosophy 168
5.1.2 ‘Naturalising’ the Law 174
5.2 Nature’s Voice, Lost in the Wilderness of Public Participation? 177
5.2.1 In Nature’s Best Interest 179
5.2.2 In Our Best Interest 181
5.2.3 Will Representation Promote Non-Human Interests More Satisfactorily? 184
5.3 Conclusion 185

Chapter Six: Conclusion
6.0 Final Evaluations 188
6.1 Conclusions on the Contingent and Inherent Limitations of the Public Participation
Principle in Environmental Matters 188
6.2 The Participation Paradox 194

Bibliography 197
Table of Cases
A
 Alyeska Pipeline Service Co. v Wilderness Society 421 U.S. 240, 247 (1975)

B
 Bailey v. Poindexter’s Ex’r 56 Va. (14 Gratt.) 132, 142-43 (1858)
 Bradford Corporation v Pickles [1895] UKHL 1
 R(Burkett) v London Borough of Hammersmith and Fulham [2004] EWCA Civ 1342

C
 Case 6/64 Costa v ENEL (1964) ECR 585.
 Comer v Murphy Oil USA 607 F3d 1049 (5th Cir 2010)

D
 Draft Findings and Recommendations of the Compliance Committee with Regard to
Communication ACCC/C/2008/32 Concerning Compliance by the European Union)
 Dred Scott v Sandford 60 US (19 How.) 396 40-05 (1856)

E
 El Pueblo para el Aire y Agua Limpio v. County of Kings No. 366045 California
Super Ct Dec 30 1991
 Export Credits Guarantee Department v Friends of the Earth [2008] EWHC Admin
638

F
 Fisher v Lowe (No. 60732 (Mich, CA), 69 A.B.A.J., 436 (1983))
 Friends of the Earth v IC & Exports Credit Guarantee Department (20 August 2007)
EA/2006/0073
 Friends of the Earth v IC & Exports Credit Guarantee Department (28 March 2006)
EA /2005/0014
 Findings and Recommendations of the Compliance Committee with Regard to
Communication ACCC/C/2004/01 Concerning Compliance by Kazakhstan
i
 Findings and Recommendations of the Compliance Committee with Regard to
Communication ACCC/C/2008/33 Concerning Compliance by the United Kingdom
 Findings and Recommendations of the Compliance Committee with Regard to
Communication ACCC/C/2008/27 Concerning Compliance by the United Kingdom
 Findings and Recommendations of the Compliance Committee with Regard to
Communication ACCC/C/2008/23 Concerning Compliance by the United Kingdom

G
 Gabčíkovo -Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7
 Garner v Elmbridge Borough Council and others [2010] EWCA Civ 1006

L
 Case C-240/09 Lesoochranarske zoskupenie VLK v Ministerstvo zivotneho prostredia
Slovenskej Republiky [2011] ECR I-01255

R
 R(Berkley) v Secretary of State for the Environment, Transport and Regions and
Fulham Football Club [2001] Env L R 16:)
 R (Greenpeace Limited) v Secretary of State for Trade and Industry [2007] EWHC
311 (Admin)
 R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1
WLR 2600
 R v Her Majesty’s Inspectorate of Pollution ex p Greenpeace (No 2) [1994] 4 All ER
329
 R. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed
and Small Businesses Ltd. [1982] A.C. 617
 R v North & East Devon Health Authority, ex parte Coughlan [2001] QB 213
 R v Sect of State for the Environment ex p Friends of the Earth and Andrew Lees
[1996] 1 CMLR 117
 R v Secretary of State for the Environment ex p Rose Theatre Trust [1990] 1 QB 504
 R v SSE ex p RSPB [1997] Env LR 431
ii
S
 Sierra Club v Morton 405 U.S. 727 (1972)
 St Helen’s Smelting Co v Tipping [1865] UKHL J81
U
 United States v Deveaux 9 U.S. (5 Crach) 61, 86 (1809)
W
 Walton v The Scottish Ministers [2012] UKSC 44

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