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Hastings Law Journal

Abstract

Our environmental laws create an unfortunate paradox. They mandate science-based planning, and that mandate often translates into a practical or legal requirement to use complex simulation models. These laws also contain provisions for public participation. When agencies engage in technical decisionmaking, however, and particularly when they use complex yet uncertain models, the reasoning and risks underpinning decisions becomes difficult for public participants to understand and critique. As a result, legal mandates for science-based and participatory planning come into conflict. This conflict is inherent in many environmental statutes, and is acute in the State Implementation Plan (SIP) process required by the Clean Air Act to codify states' plans for meeting federal air quality goals.

The Article explores the tension between public participation and modeling by focusing on the SIP development process and the limitations and resultant risks associated with decisions based on modeling. Drawing upon literature from the fields of air quality science and modeling, risk assessment and management, planning, law, and science and technology studies, augmented by interviews, the Article discusses the roots of the problem, exploring the origins of legal requirements for both public participation and modeling, and then considers how the use of models fits within planning processes. The Article highlights the ways in which planning depends upon models and how model use impedes the public role due to limitations inherent in modeling. The Article provides a retrospective case study of a particular SIP planning process-the development of the San Joaquin Valley ozone plan for California's 1994 SIP-to illustrate tensions between model-based planning and public participation. The Article closes with recommendations for risk-based decisionmaking and other ideas for ameliorating this paradox without excluding public concerns or compromising the sophistication and integrity of science-led planning.

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