The Federal Advisory Committee Act and Public Participation in Environmental Policy

This paper discusses the Federal Advisory Committee Act (FACA) and how it affects public participation in environmental decision-making. Passed in 1972 as one of the "openness in government" laws, FACA governs how the federal government seeks outside advice. It has had a profound influence on who participates in government decision-making, when they participate, how they participate, and what influence participation has on policy. FACA has had a number of notable successes. Primary among these has been its role in limiting the unbalanced influence of special interests, acting through advisory committees, on public policy-making. The advisory committees which the law governs have also achieved a number of the "social goals" of public participation, including: 1) educating the public, 2) bringing public values into government decision-making, 3) improving the substantive quality of decisions, 4) increasing trust in government institutions, and 5) reducing conflict. Often, advisory committees have given government relatively inexpensive access to experts and stakeholders in order to achieve these goals. However, FACA has also created--directly and indirectly--a number of "chilling effects" on public participation in environmental decision-making. First are procedural requirements which make it difficult for groups outside of government to become advisory committees, and thereby gain access to decision-making. Second are ambiguities in the law and its regulations which limit the willingness of public agencies to engage the public outside of FACA. And third are Clinton Administration policies which limit the number of advisory committees that agencies are allowed to establish. Taken together, these chilling effects create a paradox wherein agencies are reluctant to engage the public in decision-making outside of FACA but significant barriers keep groups (and agencies) from forming advisory committees under the Act. The paper concludes by recommending a streamlining of FACA's procedural requirements, a clarification of regulations and policies regarding what type of participation falls under FACA, and an elimination of administrative ceilings on advisory committee formation.