Environmental Conflict Resolution and Section 106: a Minor Epiphany

I’m grateful to Western Cultural Resource Management, Inc. (WCRM) for making it possible for me to take part in its training last week in Reno, NV. The training was in environmental conflict resolution (ECR); the class was taught by Joan Calcagno of the U.S. Institute for Environmental Conflict Resolution at the Udall Foundation, University of Arizona. I think that Tom Lennon and his colleagues are very much to be commended for trying to make WCRM into more than the usual walk-the-transect-and-dig-the-hole cultural resource management firm by getting familiar with the principles and methods of things like ECR.

As one who’s theoretically been doing ECR for decades, in the guise of project review under Section 106 of the National Historic Preservation Act, I experienced a mild sort of epiphany during the training. Joan spent a good deal of time discussing what makes a case ripe for ECR – what conditions have to be present. I found myself thinking that it must be nice to be able to think about ripeness; in the 106 game we don’t have that luxury. The only game in the town of 106 review is ECR, in the form of consultation as prescribed in the regulations. Which led me to think -- here's the epiphany -- that this uniformity, this absence of options, may be the central flaw in the regulatory process.

The regulations, it occurred to me, essentially assume that there is always some kind of conflict to be resolved, requiring a more or less standard sort of multi-party (though often only bi-party) consultation. And they give little to no direction about how to decide how much consultation is necessary. The only real guidance is that if a project will have “adverse effects,” it requires some more consultation, sort of, than does a project without such effects.

And “adverse effect” is defined in a very abstract, theoretical way – you have an adverse effect if you’re going to diminish the integrity of a historic property. It doesn’t matter if you’re just going to diminish it a little bit or a lot, and more importantly it doesn’t matter whether anybody objects to the diminution. Everybody involved can be happy as clams with what you’re going to do to the place, and you’ve still got to go through the motions of consultation and execute a memorandum of agreement. On the other hand, some people can hate what’s proposed, and that doesn’t trigger any higher level of review – unless, of course, the haters are State Historic Preservation Officer (SHPO) staff, based on whatever technical standards they elect to apply.

Inevitably, such a system allocates unnecessary time, effort and angst to routine, non-controversial projects, while allocating insufficient resources and attention to projects that are troublesome. And there’s nothing in the system to flag troublesome projects early on, alert people to one another’s concerns, and allow people to think about whether there’s the need for some form of ECR. And because it’s so cumbersome, and mind-numbing, to try to consult about every single project, applying the abstract criteria of adverse effect (to say nothing of the National Register criteria), agencies and SHPOs get frantic to find means of “streamlining.” They negotiate programmatic agreements (PAs) to achieve this objective, but since nobody has a model other than what’s in the regulations, the PAs that get negotiated tend to be weird permutations on the standard Section 106 process that usually exacerbate its faults and dilute its strengths.

Although I think the National Trust for Historic Preservation was right, in its recent “Back to Basics” report, to call for a halt to PA development pending the establishment of better standards, it would be interesting to experiment with a PA that discriminated among projects not on the basis of their abstract effects on historical or architectural integrity but on the basis of the degree and kind of conflict they provoke. Perhaps if we could apply some of the principles that Joan Calcagno talked about in the WCRM class, we could come up with a more rational, simpler system of project review that’s more accessible to the public, more responsive to the public’s interests, and less taxing on all concerned.