Mark Bennett and Joel Colón-Ríos

This paper analyses how the reasons for and against public participation in regulatory processes; in particular electricity regulation and environmental regulation. The paper reaches some general conclusions from these examples about the reasons for increased participation, the mechanisms through which that can be achieved and some considerations regulators may use to determine whether and how to provide increased public participation in their decisions.

In New Zealand, the main electricity regulatory decisions are carried out by the Commerce Commission (CC) and the Electricity Authority (EA). The public can participate in the present framework through ordinary political and legislative processes, including accessing consultation documents provided by the EA, making submissions in response to these consultation documents, through advisory groups set up by the EA, and through a more limited general consultation and submission process provided by the CC. There are a number of factors that give rise to arguments for and against public participation in electricity regulation, which include: (1) the democratic legitimacy of regulatory decisions, (2) the technical complexity of electricity market, (3) the dominance of large industry players in public participation, (4) public apathy towards electricity regulatory decisions outside of times of crisis, (5) greater accountability of regulators, and (6) better quality of decision making outcomes. This paper considers the application of participatory mechanisms in the UK and Australia, such as citizen advisory committees, consumer advocacy groups and consumer panels. The paper concludes that there should be increased public participation in electricity regulation and this can be achieved through greater funding of consumer interest groups.

The main framework for environmental regulation in New Zealand is found in the Resource Management Act 1991 (RMA). The current opportunities for public participation in that framework are mechanisms for public consultation concerning both the preparation of planning documents and resource consent applications. The relevant factors that give rise to arguments for and against public participation in environmental regulation include: (1) the necessity of technical expertise in making environmental regulatory decisions, (2) special interest capture, (3) the general public’s apathy towards environmental decision making, (4) the importance of public compliance towards regulatory decisions, (5) increased regulator accountability, and (6) issues of time and cost. The paper highlights key concerns with the existing mechanisms for public participation and suggests that there is room for new opportunities and more intense forms of participation in RMA regulation. The paper suggest, the issues of apathy and special interest capture can be resolved through the use of citizen’s juries in public hearings whereby a group of citizens deliberate on the proposed plan and provide recommendations to the regulator. For resource consent applications, the limitations on participation resulting from the criteria for notification can be overcome by providing a mechanism through which citizens can require a public authority to publicly notify a resource consent application.

The paper concludes that increased public participation has the benefits of providing increased democratic legitimacy to the regulatory process, better regulatory outcomes, greater accountability of the regulator, public approval of and compliance to regulatory decisions, and results in a more engaged and informed citizenry. It suggests that regulators should aim to augment public participation that informs and influences decisions in a way that alleviates the reasons against public participation such as special interest capture, technocracy and indifference to regulatory decision making. There should be a presumption in favour of consultation and hearings to inform decision makers of the public’s views, and at times this may need to be supplemented by the other mechanisms, demonstrated in the paper’s two case studies, of citizen juries, citizen advisory committees and consumer advocacy groups.