Wastes of Money and Time That the Obama Administration Can Fix
The Myth of Federal Heritage Protection
Darkside Development Unlimited wants to build a new shopping mall, sports stadium, speedway or wind farm in your town or your rural community. The project will devastate some piece of your heritage in the natural or built environment—your neighborhood, or the landscape you love, the family farm, the hill where your tribal elders seek visions, the stream where everybody in your valley goes to fish. Darkside needs some kind of help from the federal government—in other words, from you and me, us taxpayers—to make its project happen. Maybe it needs a federal permit to fill a wetland, or maybe a new access road off the interstate. What can you do to fight the project, or at least seek changes to protect what you treasure?
Realistically, I’m sorry to say, not much—even though there are impressive-sounding federal laws that ostensibly give your heritage, and everyone’s, a degree of protection. I say this based on forty-plus years of increasingly bitter experience with those laws and despite having written half a dozen books encouraging people to use them.
Those laws – the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA) and others – have been around for almost half a century. They say that whenever a federal agency proposes to do something, or proposes to help or permit someone else to do something, that might damage the natural or cultural environment, it has to consider what those impacts are, and what it can do to avoid or reduce them. It has to factor them into its planning, consider alternatives, in some cases even consult with the interested public about them. Over the decades, most other countries, as well as international organizations like the World Bank, have adopted similar requirements.
As a result, we now have substantial federal and state bureaucracies overseeing environmental impact assessment (EIA) under NEPA and cultural resource management (CRM) under NHPA, and we have well-heeled private companies doing EIA and CRM work under contract. What we do not have is an orderly system for actually, honestly considering and trying to reduce impacts on our natural and cultural heritage. It’s all pretty much a sham.
Which is why, when Congress these days decides to do something like build a big fence along our southern border to keep out terrorists, its members don’t even blink before waiving EIA and CRM requirements. The notion that these requirements serve an actual purpose—that it’s a good idea to consider what damage may result from something you’re thinking of doing, before doing it—has been quite lost. Thinking about impacts on the environment is seen as something that’s nice to do if you have the time, but nothing that ought really to influence policy.
I’ve worked in CRM and EIA for over forty years, so I guess I have a vested interest in it, but I find the whole thing rather sad. There are good reasons to consider how something we plan may muck up the environment, and to do so before we undertake it. And in a democracy, citizens should have real opportunities to influence what government does, or lets others do, to their heritage. It’s too bad, I think, that we’ve let things develop in such a way that we’re spending lots of money on mere public relations efforts, slathering the lipstick of environmental responsibility on the pigs of development. We ought to change our system.
Early next year, Left Coast Press (www.lcoastpress.com) will publish my latest book, entitled Our Unprotected Heritage: Whitewashing Destruction of Our Natural and Cultural Environment, which goes into all this in some detail. Here, I want to outline what’s wrong with our EIA/CRM systems, and offer some suggestions (abstracted from the final chapter of Unprotected) about steps the Obama administration could take to make these systems serve the purpose they were designed to serve, in the interests of the American people.
There are five essential problems with EIA and CRM in the United States (and elsewhere).
1. The specialist firms that perform EIA and CRM are usually hired by project proponents. They view themselves as members of their clients’ planning teams, and behave accordingly. If they don’t, they can be fired. The supposedly objective analyses of impacts that the specialist firms produce are inevitably shaped by their relationships with their clients.
2. It might nevertheless be possible to obtain honest analyses of project impacts on our natural and cultural heritage if the federal agencies responsible for complying with NEPA and NHPA took their responsibilities seriously, but they don’t. On the whole they regard EIA and CRM as processes of getting and giving “clearance” to projects, and they seek to do so with as little impediment as possible to the interests of project proponents.
3. We might still have tolerable EIA and CRM systems if there were strong, enlightened oversight by agencies like the Council on Environmental Quality (CEQ) and the Advisory Council on Historic Preservation (ACHP), but there is not. CEQ and ACHP are deeply compromised structurally and politically, and they have no real authority. If they ever provided serious oversight, they do so no longer. Oversight agencies that do exercise a degree of authority, like State Historic Preservation Officers (SHPOs) tend to focus their attention on technical fine points and ignore larger matters of policy and principle.
4. We might still at least sometimes see EIA and CRM results we could believe in if there were transparency in the review systems, with serious opportunities for stakeholders besides proponents and agencies to participate in and influence project review. But the systems are not transparent, and the limited opportunities for participation that do exist often are illusory.
5. But we in the EIA and CRM games, both in and out of government, have all pretty much accepted the fact that this is the way things are, and we resist even considering change.
Why don’t we do something about this? There are two reasons.
Vested Interests and Fear of Flying
Among professionals in EIA and CRM, there is something akin to contentment with things as they are. Yeah, what we do isn’t always much fun, and no, it doesn’t necessarily accomplish much. But hell, it beats flipping burgers or working in a bank, and there aren’t enough academic jobs to go around. We’re doing all right ourselves, and we need to keep our jobs, so we’re just going to keep on keepin’ on. Please don’t rock our boat.
Among people who want to save pieces of their heritage, I find a lot of discontent, in some cases a fair amount of cynicism, but not much organized desire to fix things. There’s a well institutionalized fear in the conservation/preservation world that if we “open up” laws like NEPA and NHPA to change, the changes we’ll get will not be ones we like. Based on the experience of the last eight years, this fear is not groundless, but interestingly, I heard it expressed just about as often during the Clinton administration as I have since the Bush ascendance. I could attribute it to a Republican-dominated congress, but I’ve heard it, really, for as long as I’ve been around Washington – some thirty years now.
So most of us muddle along doing our things, content with or at least resigned to the status quo. Or we rail about how impure and pointless EIA and CRM are, but shrink from doing anything to make them better.
These are understandable ways of thinking and living, but in the long run I don’t think they’re tenable. If EIA isn’t reliably producing responsible assessments of environmental impacts, if CRM doesn’t manage cultural resources in the public interest, it’s hard to believe the public will forever keep funding them, putting up with them. In our own self-interest, if we’re EIA and CRM practitioners, we need to clean up our act. And if we’re people who’d like to keep our heritage, we really ought to try to fix the systems that are supposed to give it a fighting chance at survival.
In Our Unprotected Heritage, I go into some detail about what others – notably the late Lynton K. Caldwell, NEPA’s major author – have proposed in the way of reform, and why these proposals have gone nowhere. Skipping all that here, let me offer what I think could be at least some first steps toward rebuilding an EIA/CRM system that actually does what Congress intended it to do.
Memo to the Obama Administration
Mister President – or more realistically, Mister or Ms. Secretary of the Interior and Chairs of CEQ and the ACHP – if you think it would be worthwhile to stop wasting everybody’s time and money whitewashing the impacts of federal actions and decisions on our natural and cultural heritage, here are a few things you can do.
Tell the Agencies to Clean Up Their Acts
Issue an executive order telling all agencies of the federal government to establish or rework their procedures for compliance with the heritage laws – notably but not exclusively NEPA and NHPA – to ensure to the extent possible that the studies that are done and the reports that are prepared are free from bias in favor of or against actions whose impacts are analyzed. Go on to direct that such procedures provide for things like:
1. Conducting impact analyses – environmental assessments, environmental impact statements, and all the specialist studies on which such summary analyses are based – using knowledgeable third parties with no direct or indirect links to the proponent of the actions whose impacts are analyzed.
2. Conducting rigorous third party review and critique of any analyses performed by or on behalf of project proponents.
3. Objectively analyzing alternatives, including those suggested by members of the public.
4. Consulting – really consulting – with affected and interested parties and the general public, to identify and resolve objections and explore alternatives, with the objective of reaching agreements among all concerned parties (though with provision for a final decision to be made in the absence of agreement). You should be very clear about the fact that while expert opinion is important, so are the opinions of ordinary citizens, especially where places and things that citizens value are concerned.
5. Considering all kinds of project effects – direct effects, indirect effects, and crucially, how the alternatives under review would contribute to cumulative effects.
6. Considering not only quantifiable impacts but those that can’t be quantified, such as effects on our social, cultural, and spiritual values.
7. Integrating and coordinating analysis and consultation under all the environmental and heritage laws, regulations, and executive orders, notably including NEPA, NHPA, and the Endangered Species Act.
8. Regular training for agency and contractor personnel, cooperation with academic institutions, and other such measures designed to maintain the quality of interdisciplinary research and responsible consultation with the public.
9. Monitoring performance to promote integrity in analysis and in relations with the public.
10. Actually using the results of impact analysis in making decisions, with explicit attention to the policies set forth in NEPA (section 101) and NHPA (section 2). An agency should be able to show either that a decision it makes is consistent with these policies, or that its inconsistency is justified in the public interest.
I know that a lot of these things seem so obvious that you shouldn’t need to instruct your establishment in them, but believe me, you do. And doing so would be a start at reforming the system, both by improving its integrity and by getting the public actively involved.
There’s something else you should do.
Rework the Regulations and Consider Consolidation
Tell CEQ, the ACHP, the Fish and Wildlife Service, and all the other oversight agencies to get together over a specified period of time, with lots of public participation, to reconsider and revise their collective regulations implementing NEPA, NHPA, and the other impact assessment laws. The agencies should seek consistency, simplicity, transparency, and full, open public involvement.
Direct the same agencies, perhaps through the same program of cooperative review, to come up with recommendations for consolidating compliance with the various laws, including changes in the laws themselves as needed, to create an EIA system (including CRM) that is simple, straightforward, and accessible to the public.
Make sure the cooperative interagency review is overseen and coordinated by someone with the authority to resolve disputes and gore whoever’s oxen need goring (Maybe Al Gore). Consolidation of oversight agency functions is certainly going to leave blood on the floor, but it has to be done if a system is to be created that ordinary citizens, not just specialists, can understand and participate in.
And then –
Once you have an idea of what ought to be done to improve the review systems, and once you’ve explored how far you can go under existing authorities, consider going to Congress with a package of legislative adjustments to NEPA, NHPA, and the other laws. Some might simply be done away with. For instance, there would be no need for a Section 106 of NHPA if NEPA provided for public consultation about impacts on the cultural aspects of the environment. Others could be adjusted. For instance, rather than just calling for a “statement” of environmental impacts, NEPA might prescribe a process of analysis, consultation, and application of the policies already set forth in section 101 of the statute.
Whatever law or laws emerged from this process should clearly embody the principles of honest, balanced analysis and consultative public participation. The law should not elevate heritage protection over everything else, but it should make sure that such protection – and the interests of people who care about their heritage – have a fair chance to influence public policy.
A Constitutional Amendment?
Caldwell and others – most recently, I think, Congressman Jesse Jackson Jr. (D-IL) – have pointed out that the U.S. Constitution is painfully thin when it comes to protection of our natural and cultural heritage. Congress has had to stretch things like the Commerce Clause to construct a basis for environmental management. That needs to be fixed too but this will obviously take time. Congressman Jackson introduced an elegant version of such an amendment in 2007; it goes like this:
Section 1. All persons shall have a right to a clean, safe, and sustainable environment, which right shall not be denied or abridged by the United States or any State.
Section 2. The Congress shall have power to enforce and implement this article by appropriate legislation.
Caldwell argued that such a “rights-based” amendment would be difficult to interpret, but I think Congressman Jackson’s language is perfectly clear, and appropriately broad. It would require Congress and the courts to balance the right to environmental protection against other rights – like the right to the enjoyment of private property – which to me seems only sensible.
But there’s no need to wait for a constitutional amendment – or even legislation – to begin adjusting our EIA and CRM systems so they do what their creators intended, rather than merely wasting time and money and generating public frustration. A well-crafted executive order and some clear direction to the oversight agencies could work wonders.
Does It Matter?
Of course, the administration has lots of other environmental (to say nothing of economic, diplomatic, and political) crises on its hands that are of more cosmic significance than the quality of EIA and CRM. In writing Our Unprotected Heritage I’ve often paused – sometimes for hours, sometimes for months, overcome by the feeling that I’m fiddling while Rome burns. What earthly point is there, I ask myself, in diddling about with adjustments in the way we consider environmental impacts – and impacts on things like old buildings and archaeological sites, for heaven’s sake – when the atmosphere’s warming, the polar ice is melting, the seas are rising? Doing fieldwork as I sometimes do on a Pacific atoll, I can see the water rising, and I doubt if anything is going to save a host of island nations and a lot of continental waterfront from inundation. The costs of this disaster in terms of natural and cultural heritage will be far beyond anything we can imagine measuring or mitigating.
But be this as it may, it seems to me that the American people deserve to have effective ways to influence what government does to their – our – heritage. And I even harbor the notion that EIA and CRM might, if they’re improved, help a little in ameliorating the effects of global climate change. All those displaced islanders and coastal residents will have to be housed and fed; all those coastal cities and industries, farms and forests will have to be relocated or replaced. The impacts of all these adjustments may be greater in some ways than the impacts of climate change itself. And unlike climate change, these impacts will be subject to human control, human influence. EIA and CRM can help governments manage these impacts so that we don’t inadvertently do more damage than necessary to achieve the adaptations we will have to make. But if all we have to work with is the EIA/CRM industry as it’s presently constituted, we will only be wasting money that could be better spent building floating cities or seeking another planet to despoil.