Dr. Terrence Kelly

Department of Philosophy

California State University Hayward

The enforcement of environmental regulations is one of the most contested areas between the administrative state and its citizens. Citizens from all positions on the political spectrum often engage the administrative state as adversaries and, motivated by NIMBY, property rights, or conservationist concerns, react to administrative actions with a host of strategies ranging from public protest and lawsuits, to violent attacks. The result is often something of a prisoner’s dilemma. Environmental administrative agencies and citizens exhaust their resources filing and fighting lawsuits, while serious environmental problems go unsolved because any administrative solution is stuck "in the courts." In this paper, I argue that these conflicts are indicative of a deeper structural problem in the relationship between citizens and the administrative state. I argue that classical models of the administrative state as a neutral and technocratic systematic exclude citizen participation in the administration of the public policy. To overcome this problem I explore deliberative democratic theories of public administration and argue that they could be applied to the administration of environmental regulations.

It is not surprising that theorists of liberal democracy often skirt the issue of public administration. From its very roots, liberal political theory, with its emphasis on representative democracy and the neutral state, has struggled with the proper place for public administration. On the one hand, most liberal theorists believe that the state requires some form of administrative power. On the other hand, power that stands outside legislative bodies is problematic for many theories of representative democracy. This is because representative models of democracy tend to place popular sovereignty squarely in the relationship between the public and their legislative representatives. If administrators exercise legal power that goes beyond legislative power, then popular sovereignty seems threatened.

This tension between administrative power and representative democracy is seen in the earliest moments of liberal political theory. John Locke’s theory of popular sovereignty in the Second Treatise of Civil Government (1988) focuses on the power of the public to act as self -legislating citizens who extend their power to legislative representatives. Because this extension of power is based on a contract whereby free and equal individuals agree to surrender some of their freedoms (i.e. their right to vengeance) in exchange for the security that the state can provide, Locke argues that citizens must be ruled only under conditions to which they give their consent. Through elections, public opinion, and if need be revolution, legislative bodies should come to re-present the subjectivity of the public in their deliberations, and create laws that reflect the "public will." Indeed, Locke often uses the terms "public will" and "law" interchangeably. When the law mirrors the public will, citizens are self-determined because the legislative power of the state is ultimately guided by the power of the public itself.

However, the state also relies heavily on executive power. This power is the continual "force" of law (364). It is that part of the state that administers the law, compels obedience to it, and manages it in the name of the public good. On the one hand, Locke thought it was very important that the executive and legislative powers of the state be separated because of the "human frailty apt to grasp at Power" (364). On the other hand, separating the executive/administrative from the legislative branch of government seemingly severs the link between state power and popular sovereignty. If the idea of the self-determination of citizens is not be become meaningless, executive/administrative power also must be regulated by the public will.

Locke’s solution was to describe public administration as a fully rule bound practice constituted by the law itself. On this account, public administration is nothing more than the acting out of legal dictates handed down by the legislature. The administrator herself adds nothing to this practice for she "has no Will, no Power, but that of Law"(368). Indeed, Locke’s rule bound account of administration extends so far that he suggests that administrators can be viewed as "phantoms" (368) that act only in virtue of the public will. When the administrator acts on his or her private will "he degrades himself" and becomes "but a single private Person without Power…" (368).

This basic model of public administration and popular sovereignty has great deal of currency up into this day. In the post-Weberian world of mass democracy, public administration has taken on significance perhaps unimaginable in seventeenth century England. Despite this fact, public administration is still typically viewed as a rule following practice where the administrator’s private will (as well as their moral and political commitments) is bracketed by the constraints of law. Where administrators must use their judgment, they are to be guided only by norms of efficiency (what Locke called prudence and wisdom). In the United States, this conception of administration was made paradigmatic by Woodrow Wilson (1887). Wilson argued that public administration was a necessary feature of all three branches of government, but that administration should be grounded in the science of efficient management. This leaves the administrator as technocrat who brings none of her personality to the practice of administration. Like Locke, Wilson thought that a purely neutral and value free form of administration was not only possible, but required by the demands of democratic governance. As Jürgen Habermas puts it, the hope is to create a society by which "the people program the laws, and these in turn program the implementation and application of law…" (Habermas 1996, p. 481)

However, the "self programming" society that classical liberalism relies on suffers from deep descriptive and normative shortcomings. Descriptively, it gives an inaccurate account of the practice of public administration and its interaction with the everyday lives of citizens. Given this descriptive inadequacy, classical liberalism simply cannot meet the normative demands generated by the idea of popular sovereignty. These descriptive and normative failures of the classical liberal model of democracy are illustrated nicely in Habermas’ argument that given the unique condition of the Post-Weberian modern state, any contemporary theory (and institutions) of popular sovereignty must adequately address three problems: colonization, complexity and accountability.

1) The colonization of the lifeworld by administrative systems: Habermas focuses on the ways in which the expansive bureaucratic welfare state "penetrates ever deeper into the symbolic reproduction of the lifeworld." (1987, p. 356) As bureaucratic state power increasingly becomes intermeshed with civil society and the public sphere, there is an increased danger that administrative systems can manipulate the formation of public opinion in order to "extract" mass loyalty from the "public." (Habermas 1996, 480) Of course, when this happens the administrative state creates a self programming circulation of power where administrations are accountable to legislative bodies, which are accountable to the public will, which has been manipulated by administrative systems.

2) The complexity of the public: At least since John Dewey’s The Public and Its Problems (1985), theories of democracy have struggled with the question of how a disparate, pluralistic and contextually embedded public can come to see itself as a community and engage in the process of rational will formation. Mass communication technologies have both aggravated and alleviated the problem. Mass communication creates easier flows of information and ideas among large groups of dispersed citizens who otherwise would not be able to engage in dialogue with one another (Thompson 1990, pp. 163-205). On the other hand, communication technologies create such a proliferation of views, ideas and sub-discourses, that the public sphere often seems more like a no holds barred information fight at a cyber-bar than a New England town hall meeting. Furthermore, many forms of information technology have been criticized just as much for their isolating effect as for their ability to create inter-subjective discourse.

3) Accountability: Habermas argues that the norms of justificatory discourse itself require that democratic governance requires mechanisms of accountability to the public. Without some such accountability the law can hardly be said to be derived from the public will. On the other hand, as Weber argued, bureaucracy is an efficient mode of organization for institutions. It allows institutions to deal with complexity, large workloads and tight time and budgetary constraints. Of course to do this, the modern administrative bodies must guided by norms of efficiency and thus bureaucratic management. This leaves precious little room for average citizens to engage in legitimating discourse with administrators. Indeed many administrators view any interaction with citizens as "gumming up the works." But unless state power is accountable to citizens it inevitably suffers from a "legitimation crisis" by which citizens cease to cooperate with state action.

For Habermas, the classical theories of democracy fail on all three counts. The colonization of public will-formation means that relying on the accountability to administrators to legislators is simply not enough to guarantee popular sovereignty. Increased reliance on reified and self-legitimating expert cultures creates conditions by which public opinion is already co-opted by the cultural capital given to expertise. As the lifeworld is structured around expert knowledge, the voices of everyday citizens become increasing manipulated or simply ignored.

Likewise, classical liberal accounts of democracy struggle to address the problem of complexity by positing voting as the mechanism for public will formation. But the structure of voting tends to create aggregate preferences and not anything like a public will. The result is that democratic participation has no transformative and cooperative moment for its citizens. This leads to voting patterns that often create coordination problems and violations of minority rights. Fractionalization, prisoner and free-rider dilemmas, NIMBY and discrimination all tend to flow from voting mechanisms which pit specialized interests against one another in an "adversarial democracy" (Mansbridge 1983).

Finally, classical theories of democracy completely fail to address the tension between democratic participation and the instrumental-bureaucratic structure of state administrative bodies. As the lifeworld becomes increasingly colonized, accountability to citizens, particularly at the administrative level, is actively avoided. In the name of efficient government, administrators often completely abandon the notion of citizen participation.

These criticisms raise questions about the adequacy of classical liberalism and the theory of public administration that has accompanied it. Indeed, the very attempts to create a Wilsonian form of administration often produce the very forces that, for Habermas, undermine popular sovereignty. This can be seen in the reliance on administrative experts that formed the base for public administration as it developed in the early decades of the 20^th Century.

The consequence, then, of limiting the administrator’s role to that of the phantom expert is the systematic exclusion of citizens from the administrative process. While meeting Locke’s description of popular sovereignty, administrators have now shut the door to the voice of the people while implementing decisions that may have direct bearing on their lives. In recent years, such decisions have been met by serious outbreaks of NIMBY protests, the ultimate case of citizen participation. Where citizens are excluded from the significant parts of the decision process, their only avenue for communication with administrators is to say—sometimes through violence-- "no" (Timney 1998).

Given its normative and practical shortcomings there has been a movement among both administrators and theorists of democracy to re-conceptualize the administrator from a faceless technocrat who asymmetrically executes the law, to a fascilitator of public deliberation at the administrative level of the state. Such reconceptualization draws heavily from theories of "deliberative democracy."

Deliberative democracy focuses on the kind of decision making process that is necessary to produce "fair terms of cooperation" that can be justified to others in open (or public) structures of accountability. Thus deliberative democracy occurs in the process of reason giving and accountability which citizens engage in when placed in discursive situations of problem solving. For many theorists, such an account of democracy is structured around basic norms: reciprocity, publicity and accountability.

In Political Liberalism, John Rawls articulates the "criterion of reciprocity" as: "our exercise of political power is proper only when we sincerely believe that the reasons that we offer for our political action may reasonably be accepted by other citizens as a justification for those actions" (Rawls, 1996, p. xlvii). A similar idea is expressed in Habermas’ "D" principle: "only those norms of action are valid to which all possibly affected persons could assent as participants in rational discourses" (Habermas 1996, p. 257) Rawls, like Habermas, argues that for political deliberations to be reciprocal, citizens must enjoy extensive use of their basic liberties—or as Habermas puts it, democratic deliberation depends on the internal connection between private and public autonomy (Habermas 1996, p. 454). But reciprocity requires more than liberty, it requires that citizens approach one another with an eye towards justifying their political claims in terms that others could accept. Habermas goes one step further and argues that citizens must enter deliberations with the goal of achieving a consensual outcome. Others, such as Bohman (1996), believe that this norm is too strong and argue that it will suffice that the reasons offered in deliberation are reciprocal enough to create continued cooperation between disputing parties. Regardless of their differences, these accounts of reciprocal deliberation all hold that citizens are reasonable when they view one another as free and equal partners in cooperative interactions that are to be guided by fair terms that all could agree to.

The norm of reciprocity clearly implies political accountability to citizens. If political actions are to be justified to citizens within reasonable forms of deliberation, mechanisms of public accountability become a necessary feature of the democratic state. Such mechanisms must go far beyond periodic voting, but must be broad and frequent enough to provide for public deliberation on political decisions generally. In other words, the state must create feedback mechanisms by which real public deliberation is linked with political power.

Reciprocity and accountability in turn require publicity. If political action is to be justified in public deliberations, then those deliberations must be free and open to the public, they must be inclusive of, at least, those affected by the political decision. Such deliberation would also have to be structured around the norms of fair discourse. This would include giving all an equal chance to speak, creating symmetrical relations of power, rooting out the linguistic biases, allowing equal power to raise and change topics, and creating mechanisms by which deliberations are revisable.

When guided by reciprocity, publicity and accountability, deliberation can be said to be a fair procedure of decision making which produces legitimate outcomes. Outcomes, which when linked to state power, provide a better basis for the popular sovereignty of citizens than classical liberalism can provide. We argued above that a central weakness of classical liberal theories of democracy is their inability to articulate a satisfactory relationship between administrative power and popular sovereignty. In an attempt to create a neutral basis for administrative power, the turn to administrative experts simply created a self-legitimating form of power that excluded public accountability. Furthermore, administrative neutrality turns out to be more myth than real. Administrators cannot help but appeal to norms and values—even in mundane decisions such as staffing and budgets.

The normative requirements of deliberative democracy entail a very different form of public administration. As Habermas (1996) argues:

Insofar as the administration cannot refrain from appealing

to normative reasons when it implements open legal programs

it should be able to carry out these steps of administrative lawmaking

in forms of communication and according to procedures that

satisfy the conditions of constitution legitimacy. This implies

a "democratization" of the administration… (440)

As deliberative, administrative decision-making would have to become open to genuine public accountability. In such accountability, administrative decisions would have to be validated through public deliberation. Ideally, administrative decisions would be made through a deliberative process by which administrators and citizens work collaboratively in the "conjoint activity" (Bohman 1996, p. 23) of problem solving. Because it provides a better framework for popular sovereignty, deliberative democracy is a normatively superior model of democracy. Furthermore, deliberative democracy can go a long way in solving the objections that Lowi and others have raised against adversarial democracy. This is because, deliberative democracy, in practice, often re-orients the focus of problem solving beyond immediate self-interest and towards the common good.

Joshua Cohen argues that in practice the principle of reciprocity itself begins orienting deliberating citizens towards the common good. "While I may take my preferences as a sufficient reason for advancing a proposal, deliberation under conditions of pluralism requires that I find reasons that make the proposal acceptable to others who cannot be expected to regard my preferences as sufficient reasons for agreeing"(Cohen, 1997, p. 76). In other words, the fact that something fulfills the interests of certain citizens simply cannot count as a compelling reason under conditions of deliberation. In order to offer reasons that can carry the day within deliberations, citizens must turn to common interests and values. Anything less would fail for both pragmatic and normative reasons. Pragmatically, deliberations cannot succeed unless participants are willing to reason with terms acceptable to all. Normatively, the failure to reason with an eye towards the common good fails to treat other participants as free and equal. As free and equal all the participants are entitled to fair terms of cooperation. Claims that are based on particular self-interest can hardly meet that standard.

Furthermore, the pragmatic dimension of deliberation also tends to produce a re-orientation towards the common good. As deliberators, citizens take part in cooperative problem solving behaviors. In many cases of deliberation, there is a specific problem or task that must be solved. This is one way in which deliberation differs from discourse. In discourse, agents exchange reasons in order to validate claims. In deliberation, citizens exchange reasons to validate claims so that mutual problems can be solved. This pragmatic problem-solving characteristic of deliberation often leads to increased cooperation and trust between the participants. This makes it easier for deliberators to find common interests (perhaps before unnoticed) or make compromises. It also makes it possible for deliberators to accept outcomes even when decisions go against them. If the normative demands of deliberation have been met, those whose claims do not carry the day should be able to at least accept the reasonability of opposing claims.

If deliberation really re-orients participants towards the common good, then deliberative democracy may be a healthy alternative to the adversarial democracy criticized by Lowi. Deliberative democracy approaches pluralism through reasonable engagement and thus allows citizens to recognize common interests and possible compromises that went unnoticed before. But does deliberation really possess such qualities? Can deliberation, particularly at the administrative level lead to considerations of the common good over NIMBY and special interests? If deliberative democracy is to offer a live alternative to liberal/representative democracy then there must be some empirical indication that it does indeed have cooperative effects. We believe that there are good empirical reasons to believe that deliberation does indeed have these effects.

According to Sabel, Fung and Karkkainen (1999), an exciting development in environmental regulation is occurring in the popularity of "Habitat Conservation Plans." These plans of land management and environmental protection occur at the intersection of development, landowner rights and environmental regulations. For instance, California’s Endangered Species Recovery Act often requires administrative intervention into privately owned lands. As I discussed in the introduction to this paper, such intervention typically led to foot dragging, political counter-pressure and, eventually, lawsuits. California administrators faced a serious legal and budgetary dilemma: enforcement of the CESPA created resource draining legal fights with landowners, while non-enforcement of the CESPA created the same kind conflict with environmental organizations, which are both popular and powerful in the state. While these conflicts played out, serious environmental problems went completely unattended.

To escape this prisoner’s dilemma, opened the door to direct participation of interested groups of citizens (usually land owners, developers, recreational land users and environmental groups) in the development of administrative enforcement plans. The result was the development of Habitat Coalition Plans. These plans are, in essence, administrative policy created through the deliberation of administrators and experts working in concert with citizens. Ultimately, it is the concerned citizens that sign off on the plan.

What is unique about HCP’s, argue Sabel, Fung and Karkkainen, is that they replace the expert dominated central command model of administration with a deliberative model that brings competing interests together in a dialogical situations aimed at creating mutually satisfactory solutions. By creating land management plans that, for instance, protect endangered species while preserving land use rights, many HCP’s have been able to deliberately find common solutions among disparate groups of citizens. For instance, in many HCP’s, landowners have been able to retain a certain measure of their land use rights, even when their land includes endangered species. At the same time, the conservationist goals and monitoring regimes built into HCP have created, for many environmentalists, a more effective approach to preserving endangered species.

In HCP’s the public administrator functions less as an expert on environmental regulation and more as an expert in public participation. The administrator must create the kind of conditions that lead to open and honest deliberation and compromising. In doing, the administrator must focus on the kinds of forums that actually bring people together. For instance, negotiating the plan locally instead of requiring participants to travel to the state capital can have a profound impact on the amount of citizen participation in HCP’s. Administrators must also focus on the motivations that keep citizens at the bargaining table. For landowners, the fear that they will lose all of their land use rights in environmentally sensitive areas. For environmentalists, the fear that protracted legal battles prevent any enforcement of environmental regulations.

The deliberative nature of HCP’s does not stop at the planning stage. Monitoring the various sites where environmental regulations, such as the Endangered Species Act, is often far beyond the state’s financial and administrative abilities. Once again, citizen participation is critical in the monitoring of sites, the pooling of information and the proposal of adjustments to the HCP.

This role of civic participation in environmental regulation has also been successfully implemented in Chesapeake Bay Program in Maryland and the Toxic Uses Reduction Act in Massachusetts. In these cases, citizens do not function as mere monitors, but work deliberately with administrators and other interests in adjusting environmental goals and preservation strategies. For instance, Sabel Fung and Karkkainen, argue that because each watershed in the Chesapeake Bay has its own specific character, the practical know-how brought by local residents is critical in devising preservations strategies and target goals that are feasible and effective.

These examples highlight the powerful effect that deliberative decision-making can have on the administrative process. By including citizens through deliberation, administrative power is not only guided by popular sovereignty, it also can create mutually satisfactory solutions that can serve the purpose of the common good. However there are dangers in taking a deliberative approach to administrative action—many of which revolve around the erosion of the rule of law.

For instance, in order to carry out deliberative democratic decision-making administrators will require a greater amount of flexibility than they often have currently. This seems to create an even greater danger to popular sovereignty. Even Sabel, Fung and Karkkainen warn the HCP’s:

can lead to self-deluding celebrations of expert powers

and so to underestimation of the combined political, scientific

and practical complexity of large-scale ecosystems management.

At its worst, it can undermine the democratic legitimacy of HCP’s

By transforming them into unprincipled backroom deals between

regulators and the regulated. (12)

This possibility also underscores the fact that increased flexibility to local deliberations creates the potential for varying legal standards from context to context. As law becomes less uniform and more prone to specific "deals" that are cut by powerful parties, the turn to deliberative democracy seems to threaten the rule of law itself.

This threat to the rule of law is more apparent than real. If deliberative democracy required a complete decentralization of power to the local level with little to no monitoring and accountability, then the threat to the rule of law would be a serious one. However, deliberative democracy does not entail such a de-centralization. It is important to remember that the deliberative administrative process forms a dialectical relationship with the legislative process. It is precisely one of the merits of deliberative administration that it gives citizens a better voice in the legislative process. This is because administrative bodies often carry out the planning and policy design that are acted upon by the legislature. By including citizen participation in these planning phases of law, the public often has a greater voice in the substance of the law itself. n].

The second half of the dialectical relationship between deliberative administration and the legislative process is created through mechanisms of accountability. Sabel, Fung and Karkkainen refer to such accountability to the law as "rolling rule regimes." In a rolling rule regime, standards are set at the centralized level (either state or national) through the input of citizens in the planning phase. These standards are then applied to local contexts through a collaborative effort of interested citizens working deliberately to meet the unique needs of their particular context. Thus Sabel, Fung and Karkkainen characterize this arrangement as "local autonomy and broad accountability." (4) For instance, HCP’s use their local autonomy to create deliberative coalitions that construct and administer land management plans. However, such plans can only work within the areas of latitude given to them by environmental regulations. While plans gain flexibility from the indeterminate features of the law, it may not outright violate the law. So, for instance, the agreement of local actors may not trump the Endangered Species Act. Deliberative administration works to interpret and apply the law in a way that responds to the common interests of local actors, while remaining within the constraints of the law.

To assure that this dialectical relationship remains intact, mechanisms of accountability must be built into deliberative administration to assure consistency with the rule of law and citizen participation. Accountability for citizen participation at the very least requires procedural guarantees that establish a minimal threshold of fair deliberative conditions (e.g. institutionalizing the norm of reciprocity). Such guarantees would have to be institutionalized in law and would make deliberative processes at the administrative level reviewable by central agencies and the court system.

Deliberative administration of environmental regulations can better meet the normative and practical demands of modern democracy. Normatively, this model of administration provides a space for direct public participation in the administrative process that is unimaginable in more traditional models of administration. Moreover, because administrators often function at a more local level than legislators, deliberative administration of public policy creates the potential for a kind of direct democracy that is now by and large impossible at the legislative level. While deliberative administration is not possible in every environmental conflict, it can provide real practical benefits within a range of cases that otherwise end in paralyzing litigation.

Bohman, James (1996). Public deliberation. Cambridge, Mass: MIT Press.

Cohen, J. (1997). Deliberation and democratic legitimacy. In J. Bohman & W. Rehg (Eds.), Deliberative democracy (pp. 67-93). Cambridge: MIT Press.

Dewey, John. The public and its problems. 1984. Athens: University of Ohio Press.

Gadamer, Hans-Georg. (1992) Truth and method. Tr. Joel Weinsheimer. NY: Crossroads Publishing.

Gutman, A. and Thompson, D. (1996). Democracy and disagreement. Cambridge,

Mass.: Harvard University Press.

Flyvbjerg, B. (1998). Rationality and power (S. Sampson, Trans.). Chicago: University of Chicago Press.

Habermas, J. (1979). Communication and the evolution of society. (T. McCarthy Trans.) Boston: Beacon Press.

Habermas, J. (1987). The theory of communicative action (Vol. 2) (T. McCarthy Trans.). Boston: Beacon Press.

Habermas, J. (1996). Between facts and norms (W. Rehg, Trans.). Cambridge: MIT Press.

Hummel, Ralph P. (1994). The bureaucratic experience: a critique of life in the modern organization. Fourth ed. New York: St. Martin’s Press.

King, C. S. & Stivers, C. (1998). Government is us: Public administration in an anti-government era. Thousand Oaks, California: Sage Publications.

Locke, J.(1988). Two treatises of government. NY: Cambridge University Press.

Lowi, Theodore. (1979). Interest-group Liberalism from The End of Liberalism, 2^nd ed. New York: W.W. Norton, pp. 50-63. Reprinted in Koritansky, John C. 1999. Public Administration in the United States, Newburyport MA: Focus Publishing, pp. 137-149.

Mansbridge, Jane. 1985. Beyond adversarial democracy. Chicago: University of Chicago Press.

Rawls, J. (1996). Political liberalism. New York: Columbia University Press.

Sabel, C., Fung, A. and Karkkainen, B. (1999) Beyond backyard environmentalism. Boston Review 24.5, pp. 1-17.

Timney, M. M. (1998). Overcoming administrative barriers to citizen participation: Citizens as partners, not adversaries. In C. S. King & C. Stivers (Eds.), Government is us: Public administration in an anti-government era (pp. 88-101). Thousand Oaks, California: Sage Publications.

Wilson, W. (1887). The study of administration. Political Science Quarterly, 2, 197-222.