“Streamlining” seems to be what everybody wants to do these days, at least when it comes to environmental impact assessment (EIA) and project review under laws like Section 102(c) of the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). Every agency of federal and state government, it seems, is earnestly working on (or at least generating gas about) ways to “streamline” such review, and consulting firms are busy assuring potential clients that they can accomplish such “streamlining” if only they’re paid enough.
No one seems to question the premise that “streamlining” EIA is a good thing to do – despite the fact that innumerable EIA scholars and courts of law have identified laws like NEPA and NHPA as “stop, look, and listen” laws. Their purpose is to consider what we’re planning to do before becoming committed to it, to stop long enough to look around at impacts and alternatives, to listen to what people think and say about our plans, and – implicitly at least – to try to do something in response to what we see and hear. Is “streamlining” such activities necessarily a good idea? The last time I recall “streamlining” the process of stopping, looking and listening in my daily life, I got my foot run over by a taxi.
I’ve just received a “request for quotes” (RFQ) from the Nevada Department of Transportation that represents one of the more idiotic examples I’ve seen lately of “streamlining” rhetoric. It begins:
The Nevada Department of Transportation, Administrative Services Division is requesting quotes for The “Everyday Counts” (EDC) program requires the streamlining of processes that expedite transportation initiatives.
Let’s ignore the run-on sentences and give them the benefit of the doubt; apparently the Department has something called the EDC program, and they’re not really soliciting quotes for that program but for an activity that’s supposed to advance its purpose – which is to “expedite transportation initiatives." In English that probably mostly means “build and improve highways.”
The request goes on:
Streamlining the Native American consultation for the National Historic Preservation Act, as amended, will provide a set of agreed upon steps for consultation and Section 106 will result in quicker obligation of funds for projects.
It’s great that they got that “as amended” in there; it really makes them look like they know what they’re talking about. The main import of the sentence, however, lies in its last clause, which reveals the underlying rationale for "streamlining" -- to obligate funds more quickly than -- well, presumably more quickly than they're obligated now, which someone must think isn't quick enough.
There follows a bit of boilerplate requiring contractors to have a million bucks worth of liability insurance, have workers compensation insurance (regardless of whether they’re employing any workers in Nevada) and a state business license. Then there’s a statement of work (SOW). After reiterating the stuff about the EDC and streamlining, the SOW (sort of) specifies what the Department is after:
A tribal workshop to jumpstart Native American Consultation (NAC) Programmatic Agreements (PA) with Federal Highways Administration (FHWA), the Nevada Department of Transportation (NDOT) and the Nevada Tribes is the best first step.
Ah! So they’re seeking help in organizing and running a workshop, the purpose of which will be to “jumpstart” (another popular buzz-word) consultation toward a programmatic agreement (PA) – presumably the kind of PA authorized by 36 CFR § 800.14(c) of the NHPA Section 106 regulations. We are not told who has decided that such a workshop, or such a PA, comprise the “best first step” or why this is thought to be the case. We are next told that:
This workshop would encourage development of either one PA for all of the Tribes or individual PAs for each tribe by holding a two-day workshop headed by an outside Native American Consultant/Facilitator.
Never mind the infelicitous “This workshop will hold a workshop” language; it appears that what they want is a 2-day workshop to “encourage” (who?) to develop either a single PA or multiple PAs, which will specify – er – something that (presumably) will expedite consultation.
Note that nobody has said that there are problems with consultation as it’s currently carried out; it’s just assumed to need “streamlining,” and this workshop is supposed to somehow make it happen.
Note too that the workshop is supposed to be headed by an “outside Native American Consultant/Facilitator.” Why “outside?” Can no one in Nevada do this kind of thing? And if the C/F is supposed to be a “Native American,” why did they send the solicitation to me? I’m not Native American. To judge from some of the subsequent paragraphs it appears that they don't really want a Native American; they just want someone who's had some experience with Native Americans. Johnny Depp, maybe.
The SOW says that:FHWA-NV and NDOT are in process of developing a National Historic Preservation Act Section 106 PA with the State Historic Preservation Office and other Federal Agencies.
Negotiating such PAs is a popular way for federal and state historic preservation officials to spend time and justify their salaries. In my experience they seldom accomplish anything other than to befuddle anyone outside the closed circle of government who wants to participate in project review. I suppose that is a worthwhile accomplishment from the government’s point of view.
So they’re negotiating a PA with the SHPO and “other federal agencies” (but not, apparently, with tribes, local governments, property owners, or plain old taxpayers), so:
As a follow up to that document, FHWA-DC and FHWA-NV would like to pursue a NAC PA(s) with willing tribes in Nevada. To begin this for the first time in Nevada, a facilitator with Native American consulting experience would help all of the invited parties to bridge early difficulties and move the documents forward to a rough draft stage.
Well, that might be true, but before contracting for such facilitation, wouldn’t it be a nice idea to find out whether any of the tribes think such a PA is needed or appropriate? What if the Department and its consultant throw this party and nobody comes?
The next section of the SOW is titled “Why Nevada is ready for this,” and says:1) Progress on the Section 106 PA has stated that Tribal lands in that document will not be covered. The NAC PA(s) would move to do that. 2) Standardizing NAC would help promote better relations and communications with all parties involved while also increasing the likelihood that NAC will get done in a timely manner.
One might quibble that a state whose officials are unable to construct an English language sentence may not be the most ready to undertake the creation of responsible consultation systems; one might also note that it’s the NHPA Section 106 regulations, not “progress on the … PA” that highlights the obvious fact that the SHPO can’t negotiate a PA about what happens on tribal lands. But never mind; it’s not implausible that some sort of standardized consultation would improve at least the timeliness of consultation. So maybe there’s some utility in the proposed enterprise.
But the threshold question is not whether Nevada is “ready” for a PA with tribes, but whether Nevada is authorized to negotiate such a PA on behalf of the Federal Highway Administration. It is the federal government, not state governments, that is responsible in law for government-to-government consultation with tribes. Has FHWA found a legal way to delegate this responsibility to the State of Nevada? If so, what is it? If not, why should any tribal government give the Nevada DOT the time of day? The Department seems simply to assume that it has the authority to negotiate a PA, and that the tribes will jump to attention when they’re invited to consult.If I were considering offering a proposal in response to this solicitation (I’m not), I’d certainly want answers to these questions, and I’d want to know how the Department is consulting with tribes now. What’s done, how’s it working? What are the problems that motivate the move toward a PA? What needs “streamlining?” My strong suspicion is that nobody knows; it’s just assumed that “streamlining” is a good idea.
This brings us back to the title of the program to which the RFQ refers: “Everyday Counts.”What does this mean? Does it refer to the counts the Department must make on an everyday basis, of traffic volumes and such? I doubt it. Does it relate to members of the European nobility hiding out in the Reno suburbs? Probably not. Indeed, the RFQ’s use of the acronym “EDC” suggests that the actual program title is “Every Day Counts.”
Which conveys an air of urgency. Every day counts; we must get on with our work, not waste time. An admirable attitude for public servants to have unless it leads them into thoughtless, ill-considered decision making. That’s a big “unless,” and it’s what’s troubling about government’s fixation on “streamlining.” Certainly we shouldn’t waste time; certainly we shouldn’t engage in pointless proceduralism; certainly we should try to be efficient and use our time wisely. But I’m afraid that many in government have come to believe that project review under NEPA and NHPA is pointless proceduralism and nothing else, which by its very nature ought to be “streamlined” – out of existence, if possible. “Stop? Look? Listen?” Hell, we know what we need to do; let’s get it done! Every day counts!
It makes my foot hurt.