This paper attempts to clarify the basic issues underlying the discussion of citizens' participation in public decision-making on energy policy and projects. It questions the assumption that such participation is possible, and recalls that energy policy is at present, at least in the French context, an area of conflict between government and various interest groups. It warns of possible misunderstandings due to the lack of an agreed definition of participation.
Three major points are made in this connection. The first is that the usual instruments of citizens' participation in decision-making (public inquiries, parliamentary debates, etc.) have, for a number of technical and institutional reasons, become largely irrelevant as regards energy matters — as indeed in several other areas of policy. The second is that decision-making on energy policy and projects really allows for very little freedom of choice on the part of decision-makers : such freedom rarely goes beyond the setting of time-frames for the achievement of goals imposed by circumstances. Finally, it is suggested that invocation of the ideals of democracy is unhelpful : what is realistically possible amounts only to a greater openness and objectivity in decision-making processes aimed at giving citizens, not an illusory power to decide themselves or to block decisions by policy-makers, but the capacity to forewarn the latter about public feelings on energy issues.
This paper surveys the role of the key governmental institutions in the making of energy policy in France. It shows that in spite of fairly extensive debate of the issues in both chambers of the French National Assembly since the mid-1970s, members of parliament have so far failed to make a significant impact on decision-making in the field of energy. Part of this is due to the strength of the Cabinet's influence over the National Assembly, and to its constitutional position as policy-maker. Moreover, in spite of a vast array of departmental branches and associated agencies directly under ministerial authority, the government's power may have been more formal than real. Much of the actual decision-making is made by experts employed by the large State or privately-owned corporations. This extensive network of closely connected energy-producing corporations appears to have been, and to remain, the real seat of power, in spite of recurrent hopes for, and attempts at, democratization.
The State, whether at the federal or provincial levels, is deeply involved in the determination of the orientation of energy policy. It assumes a major role as « planner », « regulator », « producer » and « distributor ».
One has first to take into account the constitutional context, that is the division of powers outlined in our Constitutional Acts of 1867 and 1982. There is now a complex balance of power which, although it appears to satisfy all parties, require considerable dialogue to work out. This is called at home and in other federal countries « cooperative federalism », with some federal para-mountcy nevertheless.
Many citizens have been alarmed by the development of nuclear facilities, especially when the proposed site for a nuclear plant is located in their neibourghood or region.
Parliamentary democracy is not particularly appropriate as a means of channeling citizens' apprehensions and commrnyd. Legislative power is delegated every four years or so to elected members of Parliament. Meanwhile, citizens have no say in the business of the State. The administration is even more remote since administrations of government departments, boards and corporations are not elected and parliamentary control is often weak and sometimes non-existent.
The frustration of citizens and groups is therefore exacerbated by the lack of access to the decision-making process. Exasperation sometimes leads to violent demonstrations and acts of terrorism.
To counter this feeling ofpowerlessness, governments have developed some means of positive participation.
Firstly, channels of information have been opened so that rumours can be replaced by facts and objective policy statements. This requires from the Administration that its proposals be fully justified and that preliminary work has been made.
Secondly, the development of public inquiries gives interested persons and groups the feeling they are integrated in the decision making process instead of being left outside in the dark.
Parliamentary control can be updated to allow for national debates on nuclear policy and its implementation.
Finally, the use of the referendum technique at the national, regional or local level would give back to the people their freedom of expression on such issues. The examples set by Austria and Sweden are particularly interesting in this respect.
However, the equilibrium between the requirements of democracy and political expediency still remains very hard to find.
Techniques of democratic control and public participation in general energy choices have recently been the concern of many, especially in Quebec. Firstly, over the last ten years, the Parliamentary Committee on Energy and Resources has been the forum of important debates and serious discussions. Members of the National Assembly have been able to follow to a certain extent the rapid evolution of energy policies and to articulate the concerns of the general public. Those responsible for Crown corporations (Hydro, SOQUIP) have had to account for their projects and to report regularly. Through public hearings, various economic agents have had the opportunity to present their views on many occasions.
The second important technique, the use of an indépendant regulatory agency, in this case, the Quebec Gas and Energy Board, with a rather limited jurisdiction, has been the centre of discussions. Some see in that formula an adequate channel of public participation ; others have some hesitation about accepting the broadening of the role of an indépendant regulatory agency, where important issues have to be dealt between the Minister and major Crown corporations.
In this paper, the control and participative functions of the public administration are viewed as a two-way stream of information. More specifically, this model is applied to regulatory agencies in Canada and Québec. The downward, control-oriented flow and the upward, participative flow of information are both traced by means of an analysis of the key elements in the legal and administrative structure of regulatory agencies. Specific illustrations are drawn mainly from the field of energy regulation in Canada and Québec. Examination of the model in this context suggests that efficiency in the control and participative functions of regulatory agencies can be achieved only through the preservation of a proper balance among the various features of a regulatory scheme, both within and around the agencies.
This paper surveys the present state of French law concerning local inquiries on works projects in the energy sector, such as dams, power plants, transmission lines, etc. This is done in the light of the Democratization of Inquiries Bill, which received first reading in the French National Assembly in April, 1983. The subject is treated from three points of view : the scope of application of the inquiry procedure ; the inquiry process itself ; and its effectiveness as a means towards citizens's involvement in public decisionmaking.
As regards the scope of the procedure, the Bill would extend it somewhat beyond the cumulative scope of the several existing types of inquiry. Any project affecting the environment would normally be subjected to be the inquiry procedure.
As regards the inquiry process itself the Bill would strengthen the independence of inquiry commissioners in that it gives them broader investigative powers, allows them to hold contradictory public hearings upon request albeit with the agreement of the decision-making authority, and requires them to publish reports, with reasons of each inquiry.
As regards the effectiveness of the procedure, the Bill would make it easier for dissatisfied parties to obtain a injunction restraining the implementation of a project if the commissioner had reported against it.
On the whole, the Bill seems to promise significant improvements in the inquiry process, particularly as it provides for contradictory debate, including the consideration of alternative proposals. However, it leaves open a number of questions about the real purpose served by the procedure and about the proper timing of the inquiry in the total decision-making process.
Problems relating to individual and group involvement in the administrative decision making process, its opportunity, modalities and efficiency are illustrated in the context of preliminary public inquiries that precede legislative decisions.
This study focuses on the public's involvement in the application of government decisions. This is illustrated by two specific examples : the inquiry before the Bureau d'audiences publiques sur l'environnement and the proposed new public consultation policy of the A tomic Energy Control Board of Canada.
Contractual techniques have known a remarkable development in French administrative law. Contractual relations between different government agencies and individuals have reflected a change in the relationship between the State, central agencies and corporations on one side, and local authorities, associations and individuals on the other. « Inequality, Hierarchy and Government Supervision » have been partially replaced by « Equality, Participation and Autonomy ».
In this article, the author describes some instances where contractual techniques were used to promote the participation of local interests in energy decisions. He points out the consequences of such a technique of participation and concludes that its main problem is the representativeness of the participants
The use of the « costs-advantages balance » theory by the French Administrative Courts would appear to give them a far-reaching supervisory jurisdiction over administrative decisions.
However, precedents concerning environmental consequences of proposed nuclear plants show that the Courts are ill-equipped to deal with such cases and apply the « costs-advantages » theory. Therefore, they are reticent to annul administrative decisions as ill-founded or unreasonable.
The concept of abuse of power is also of little help since it is almost impossible for the Courts to substitute their own findings to the Administration's as to the public necessity of a project.
In conclusion, the Administrative Court is not an appropriate forum and the system may only gives false hopes to ecologists and others who pursue changes in government energy orientations and decisions.
The purpose of this paper is to show how judicial review has been used in the last ten years as a participatory technique by citizens and groups in the decision making process of administrative and political decisions dealing with energy exploitation and use.
In a first part, the author makes the point that judicial review is unadopted to that purpose. A second part reviews the recent case law. That review brings the author to the conclusion that the judicial forum was, by and large, an inappropriate one as far as participation was the avowed goal of plaintiffs and petitioners. But, in the last part of the paper, the author affirms that despite all these short-comings, the use of judicial review was often positive not as a technique of participation but as one which did facilitate participation at a subsequent stage, due to the wide publicity and comments, judicial and extrajudicial, surrounding the proceedings.
The authors comment on the capacity of the law to resolve problems concerning public participation in energy questions. Problems of clarity of language and consensus about objects arise in most public debates about energy. Although a particular public participation exercise may be intended to treat issues related to one policy level, questions invariably arise concerning other policy levels, be they strategic or operational. Ideally, the timing of public debate should be determined in function of the ends such debates are expected to serve, but this is difficult because of the diverse functions to be served by participation. As well, the exercise is less clear because of problems of access to and manipulation of information. Nevertheless, impartial decision-making is still perceived as leading to the best results, although the inherent limits of public participation are recognized. In the final analysis, the problems posed by public participation are not ones the law, which is contentious in orientation, can remedy.