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Published online by Cambridge University Press: 24 January 2025
In this article the author examines the expanding rôle which public interest groups can play in decision making in our society. He discusses the proposals of the Law Reform Commission to ease the present rigid locus standi requirements and points out that the main issue is not access to the courts but to government itself, and that various matters which he then investigates control public access. He concludes by suggesting several ways in which the present situation may be modified and improved.
1 Cappelletti, “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study” (1975) 73 Michigan Law Review 793, 880-881.
2 Id. 860-880.
3 Law Reform Commission of Australia Discussion Paper No. 4 Access to the Courts-I, Standing: Public Interest Suits (1977) 20 (hereinafter cited as “Access to the Courts”).
4 Clark, “Conservation and Government: Towards an Understanding of Roles” (1974) 5 Search 241 (hereinafter cited as “Understanding Roles”).
5 Access to the Courts, supran. 3, 3-4.
6 Id. 6.
7 However, judicial review of the merits of agency action is appropriate in some circumstances. See text accompanying nn. 43-48.
8 Garbesi, “Main Features, Gaps and Recent Advances in Australian Environmental Law” (1976) 4 Habitat 20.
9 The need to establish a framework for public participation in every agency is discussed in the conclusions.
10 Many of the examples used are taken from environmental law because of the author's background in this field. However, the analysis is intended to be applicable generally.
11 5 U.S.C. §552. See generally Comment, “Freedom of Information Act: A Survey of Litigation Under the Exemptions” (1977) 48 Missouri Law Journal 784.
12 In Canada, a study on ways to increase public access was stamped confidential and not made available to the public. Time, 14 August 1978, p. 83.
13 For a current example of the politics surrounding environmental studies, see “Green Threat to North-West Shelf” Financial Review, 6 March 1978, p. 2. While this discussion is primarily concerned with environmental policy, the same analysis is applicable to many other policy problems. It should therefore not be too surprising that the impact statement approach is being used in the U.S. for other concerns-most recently urban impacts.
14 See Anderson, NEPA in the Courts (1973) 56-142; County of Trinity v. Andrus (1977) 438 F. Supp. 1368 (E.D. Cal.).
15 Fisher, “The Federal Environment Protection Procedures” (1977) 8 F.L. Rev. 164 (hereinafter cited as “Fisher Environment Procedures”).
16 Id. 191.
17 Life of the Land v. Brinegar (1973) 485 F. 2d 460 (9th Cir.).
18 Miller, Anderson and Liroff, “The National Environmental Policy Act and Agency Policy Making” (1976) 6 Environmental Law Reporter 50020.
19 Fisher Environment Procedures, supra n. 15, 192.
20 Council on Environmental Quality, Environmental Impact Statements: An Analysis of Six Years Experience by Seventy Federal Agencies (1976).
21 Id. 23.
22 Fisher, “Environmental Planning, Public Inquiries, and the Law” (1978) 52 A.L.J. 13 (hereinafter cited as “Fisher Environmental Planning”).
23 Clark, “Viewpoint No. 2” in Australian Conservation Foundation, The EIS Technique (1975).
24 See generally, Gellhorn, “Public Participation in Administrative Proceedings” (1972) 81 Yale Law Journal 359; Cramton, “The Why, Where and How of Broadened Public Participation in the Administrative Process” (1972) 60 George-town Law Journal 525; and Note, “Public Participation in Federal Administrative Proceedings” (1972) 120 University of Pennsylvania Law Review 702. government's responsibility. In practice, open inquiries are cotnmon for many environmental issues, although procedures have sometimes been abused to discourage public review.2o
25 Dunphy, ''The EIS and the Public”, in Australian Conservation Foundation, The EIS Technique (1975) 58-59.
26 Coward, Environmental Law in Sydney 58 (Botany Bay Project Working Paper, 1977).
27 Ryder, Air Pollution Control 65 (Botany Bay Project Working Paper, 1977).
28 Dunphy, op. cit. 51.
29 See generally Ryder, Air Pollution Control 79-83 (Botany Bay Project Working Paper No. 3, 1977).
30 A summary of the evidence and issues concerning the fluorocarbon controversy is contained in draft and final U.S. regulations banning use of fluorocarbons as a propellant in aerosol sprays. See 41 Fed. Reg. 52071 (November 26 1976) 42 Fed. Reg. 24535 (May 13 1977) and 43 Fed. Reg. 11301 (March 17 1978). Regulatory action in numerous countries is summarised in Stoel, Compton and Gibbons, “International Regulation of Chlorofluoromethanes” (1977) 3 Environmental Policy and Law 129.
31 Council for Public Interest Law, Balancing the Scales of Justice: Financing Public Interest Law in America (1976) (hereinafter cited as “Financing Public Interest Law”). A detailed description of the activities of the Natural Resources Defense Council, a large environmental law firm, is available from NRDC, 917 15th Street, N.W., Washington, D.C. 20005.
32 Id. 182-183.
33 See discussion in Conclusions Section, infra.
34 Council on Environmental Quality, Third Annual Report 248 (1972).
36 Council on Environmental Quality, Fourth Annual Report 250-251 (1973).
36 Access to the Courts, supra n. 3, 9-10.
37 Cappelletti, op. cit. 881.
38 Fisher Environment Procedures, supra n. 15, 193.
39 Coward, op. cit. 58.
40 See, e.g. Cincinatti Gas & Electric Co. v. EPA (1978) 578 F. 2d 660, 11 Environment Reporter 2009 (6th Cir.) (computer model used for sulphur dioxide dispersion found to be arbitrary).
41 Clark, op. cit. 244.
42 Access to the Courts, supra n. 3, 20.
43 Some of the evidence was summarised by the Commission. See Access to the Courts, supra n. 3, 6-8.
44 Mich. Comp. Laws Ann. §§691.1201-.1207 (Supp. 1976), Mich. Stat. Ann. §§14.528(201)-(207) (Supp. 1976), Environmental Law Reporter 43001.
45 Id. s. 4(1).
46 Haynes, “Michigan's Environmental Protection Act in its Sixth Year: Sub-stantive Environmental Law from Citizen Suits” (1976) Environmental Law Reporter 50067.
47 Sax and DiMento, “Environmental Citizen Suits: Three Years Experience Under the Michigan Environmental Protection Act” (1974) 4 Ecology Law Quarterly 1.
48 The possible adaptation of the Michigan Environmental Protection Act in an Australian setting is described in Rioth, “Environmental Litigation by Private Citizens: Michigan Environmental Protection Act of 1970” (paper delivered at a Monash University Law Seminar on Energy, 11 August 1977).
49 Report of the President, Acting Through the Attorney-General, on the Feasibility of Establishing an Environmental Court System (1973).
50 Garbesi, loc. cit. n. 8.
51 Taylor, “Rights of Standing in Environmental Matters” in Attorney-General's Department, Environmental Law: The Australian Government's Role (1974).
52 President's Message to Congress, “Creation of an Agency for Consumer Advocacy” (April 6 1976).
53 Cappelletti, op. cit. 842.
54 Carter, “Coal: Involving the Rule of Reason in an Energy-Environment Conflict” (1977) 198 Science 276.
55 Report of the Committee of Inquiry into the National Estate 317 (1974) (hereinafter cited as “National Estate”).
56 Sexton, “Private Power and Public Interest: The Role of Lawyers in Redressing the Balance” (1977) Legal Service Bulletin 235.
51 CCH Australia and New Zealand Environmental Reporter 2 January 27 (1977) 39-42.
58 “The High Barriers to Legal Aid” Financial Review, 17 November 1977 p. 2.
59 Council for Public Interest Law, Balancing the Scales of Justice: Financing Public Interest Law in America (1976).
60 Id. 41.
61 Id. 230.
62 Sexton, op. cit. 237.
63 National Estate, supra n. 55, 317.
64 Williams, “Fee Shifting and Public Interest Litigation” (1978) 64 American Bar Association Journal 859.
65 See generally Comment, “Attorney Fees Awards in Public Interest Litigation: Judicial and Legislative Developments in California” (1978) 8 Environmental Law Reporter 10025.
66 “Implementing the Lawyers Public Interest Practice Obligations” (1977) 63 American Bar Association Journal 678.
67 Id. 680.
68 'The High Barriers to Legal Aid” Financial Review, 17 November 1977.
69 Initial experience under the D.C. program is described in Hostetler, “From the Director of Public Interest Activities” (1977) 2 District Lawyer 14 (Official Journal of the District of Columbia Bar).
70 Sexton, loc. cit.
71 Financing Public Interest Law in America, supra n. 59, 147-156.
72 Sexton, supra n. 56, 237-238.
73 Financing Public Interest Law in America, supra n. 59, 272-277.
74 U.S. Comptroller General Decision B-139703, quoted in Comment, “DOT Establishes Demonstration Assistance Program for Indigent Participants in Agency Proceedings” 7 Environmental Law Reporter 10043 (March 1977).
75 Access to the Courts, supra n. 3, 7.
76 For a detailed blueprint for this type of program, see U.S. Community Services Administration, Citizen Participation (1978).
77 See “Understanding Roles”, supra n. 4.