Margherita Pieraccini, Professor of Law, University of Bristol Law School.
In a paper recently published in the Journal of Environmental Law, I argue that defining the public interest and deciding in the public interest is especially problematic in fields where decisions concern collective action problems, involve multiple actors, crosstemporal and spatial scales, and occur under conditions of knowledge uncertainty. This is because there are multiple, collective, private, diffuse publics that gather around the problem in question. One such field is environmental law, on which the paper focuses.
A popular way to determine the public interest in these complex fields is to rely on a trade-off logic where given sets of public interests are bargained against each other. However, trade-off logic based on an aggregative model of decision-making presents several shortcomings. Aggregative models take interest as given and use the decision-making space as one of interest negotiation. By concentrating on the trading of given interests, little attention is paid to the way in which the interests have been produced and which actors, knowledges and evidentiary standards have been involved. Such approach simplifies knowledge production and overlooks its situatedness.
I argue that a preferable approach to public interest decision-making requires understanding the public interest as an emergent, contingent, political product of cooperative social inquiry among concerned publics, experiencing a common problem. To make this point I draw inspiration from Dewey’s pragmatism, which teaches us that the public interest is embedded in collective lived experiences, it is produced by reflexive communication and open debate aimed at problem solving, and it is revised in light of new knowledge.
An Example from EU conservation law
To concretise the discussion, I use the example of the Habitats Directive (Council Directive 92/43/EEC), the cornerstone of EU conservation law focussing on the Directive’s provisions regarding protected areas’ management, specifically Articles 6(3) and 6(4).
The answer EU conservation law provides in relation to the management of protected areas which host important species or habitats seems straightforward: the public interest in nature conservation takes priority. Plans or projects likely to have a significant impact on the protected area cannot get the green light unless no reasonable scientific doubt remains as to the absence of lasting adverse effects on the integrity of the protected area concerned. More specifically, Article 6(3) of the Habitats Directive requires an appropriate assessment to be conducted for any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon. It states further that, in light of the conclusions of the assessment, the competent national authorities shall agree to the plan or project only after having ascertained that it does not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the public. Case law has made clear that Article 6(3) integrates the precautionary principle, which has been interpreted as setting a very high threshold.
Yet, Article 6(4) introduces a derogation provision in allowing ‘imperative reasons of overriding public interest’ (IROPI), to be traded off against the conservation interest when deciding on granting permission on damaging plans or projects. IROPI can include social or economic considerations. It is under Article 6(4) where the tension between the two sets of public interests, the conservation and the social or economic one, are played out and resolved using a trade-off logic.
My legal analysis shows various problems associated with the use of a trade-off logic in this context to decide in the public interest. Such problems include:
- Different connotations are given to the public interests at play in the trade-off: the conservation public interest is understood as objective, being determined by a scientific assessment; IROPI as subjective, being determined by an social subject (plan/project proposer) and/or institutional subject (national or supra-national policies).
- Different evidentiary standards are at play in the construction of the conservation public interest and IROPI. If the conservation public interest is determined scientifically using a specific methodology (the appropriate assessment) and the precautionary principle invoked to deal with uncertainty, no methodology is set out for the determination of IROPI and no role assigned to the precautionary principle to deal with scenarios with uncertain IROPI forecast. Thus, IROPI information is afforded a lower level of scrutiny than the conservation public interest under Article 6(3), which makes the trade-off unbalanced.
- Weak public participation provisions in the determination of both sets of public interests are present meaning that no space is given to public deliberation and the administrative decision is relegated to the balancing of pre-determined interests, rather than to the collective generation of interests.
- There is a lack of monitoring obligations regarding the effects of plans or projects which have passed the IROPI test, making it difficult to reflect on whether IROPI are met in the long run.
Moving beyond trade-offs with Dewey
To avoid these problems, it is essential to move away from aggregative models of decision-making when designing environmental decision-making processes in the name of the public interest.
A promising alternative to aggregative models can be found in the pragmatism of John Dewey. In The Public and its Problems, Dewey argued that the public is not a given community, but it emerges, comes into being as a result of being affected by the indirect consequences of an action. A public comes into existence, discovers itself when people have a shared interest in resolving a problem. This implies that there is not just one public but many publics that are created contextually, depending on the issue/problem that is experienced.
For Dewey, democratic institutions become necessary to support the identification of a common interest by a diverse, diffuse public by facilitating experimental social inquiry, which has at its core critical and collective discussion and appraisal as well as revision in light of observed consequences. Rather than being the product of a trade-off between pre-existing interests, the public interest emerges through open discussion and collective reflection, perfecting the process of inquiry.
Besides, and of critical importance for environmental law, for Dewey meanings are constructed through the interactions between people and their environment, in practical activity. The non-human elements are not a pre-given background but have agency, doing things and participating in the creation of shared meaning. Against the Cartesian substance dualism of res cogitans and res extensa, Dewey considers knowledge as lived experience, as intrinsically connected with the world in which people act, it is a way of doing in the world and with the world.
For Dewey, then it is through lived experience, which is intersubjective and dynamic, that critical social reflection can be cultivated. Lived experience is processual and this allows for adjusting to the consequences of our actions, thus it is full of experimental possibilities. This understanding of experience helps to re-publicise, democratise as well as materialise the political. The determination of interests and values is not only in the hands of specific subjects or as an inherent property of objects waiting to be discovered, but formed through ‘conjoint communicated experience’ to address real conditions of people’s lives.
Consequently, the public interest is continuously constructed through cooperative and experimental public inquiry into actual, experienced problems. Deliberation has an experimental character in which values and positions are discussed, revised and refined. Thus, the outcome is contextual and subject to further revisions and refinement in time in the light of new experience. In this way, what counts as the public interest is not fixed but develops historically and it is immanent because embodied by people confronted with real problems.
The public interest in environmental law: a pragmatist approach
Following Dewey, a pragmatist turn for public interest decision-making in environmental law would mean that the public interest cannot be understood as either a subjectively or objectively determined variable but as arising out of experimental social inquiry among the public concerned. Administrative decision-making should be a space for the collective generation of the public interest. Deliberation of a concerned public, which draws on shared lived experiences and aims to identify common interest, is key. Monitoring the outcomes of public interest decisions should be a fundamental principle to enable reflection to assist future deliberations as knowledge on the consequences of an agreed decision could be transferred to other situations as a tool of reflection, analysis and anticipation. Finally, Dewey’s rejection of the subject/object dichotomy and the centrality he affords to shared lived experience in knowledge production point to the situatedness and relationality of knowing, which needs to be taken into account in designing methodologies to discovering and assessing the public interest.