Before the decision: constituting the affected public from Hinkley, California to AI data centre siting

Environmental justice scholarship has established that participation and recognition are equally as important as distribution, but less attention has been paid to how an affected public comes into being at all, and to decisions taken before any public exists to contest them. This article compares two cases of environmental decision-making conducted in the absence of the communities that would bear the consequences: the groundwater contamination by hexavalent chromium at Hinkley, California, and the siting of artificial intelligence data centres in South Memphis, Tennessee. Additional supporting evidence is discussed from Ireland, Chile, Portugal and Western Australia, selected for variation in the procedural forums available to residents. The cases differ primarily in how non-constitution was produced, alongside variation in the scale and nature of resources. It concludes that institutional engagement with environmental harm is currently designed to respond after harm is documented, while the determinations that generate it are settled in advance.Policy highlights.Confidentiality agreements between developers and local authorities bind public officials before any proposal becomes public.Exemption from environmental impact assessment removes the principal forum in which an affected public acquires standing, and exemption decisions merit separate publication and rights of appeal.Household energy debt, disconnection notices, and water complaints already held by frontline services constitute an early indicator of cumulative environmental burden.Consultation conducted after siting, water allocation and tax treatment are fixed cannot satisfy procedural justice requirements, whatever its formal correctness.