Here's what I sent the President today.
May 15, 2010
President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. President:
As a supporter of your administration and a specialist in aspects of environmental impact assessment (EIA), I applaud your direction that a thorough review be undertaken of Minerals Management Service (MMS) oversight of oil drilling in the Gulf of Mexico.
However, the problem is not just with MMS, or with offshore oil rigs, and limiting your scrutiny to the circumstances that permitted the Deepwater Horizon disaster to occur will not be effective. We – and by “we” I mean the federal oversight agencies and the EIA community – have developed a culture over the last couple of decades (not solely during the Bush administration, though certainly exacerbated by it) in which it is perfectly OK for EIA to be performed by and for the proponents of projects like Deepwater Horizon, and in which agencies see their major roles as being to “streamline” the review of such projects. Congress, the agencies, and to a considerable extent the American people have come to see EIA as merely a pesky bureaucratic hoop to be jumped through. Such review as is done is largely obscure to the public, which is excluded from meaningful participation by obscure rules and jargon-laden analyses.
I explored some of these issues on a small scale in my 2009 book, Our Unprotected Heritage, a copy of which is enclosed. Chapter 8 contains recommendations to you for some initial actions to cause adjustments in the culture of EIA. These recommendations are a bit out of date in view of the Deepwater Horizon disaster; it is clearly time for a truly comprehensive initiative to change the culture of EIA throughout the federal establishment and the consulting community – to make our assessment work more thoughtful, honest, and participatory. I hope you will look beyond the Deepwater Horizon and lead such an initiative.
Respectfully,
/s/ Thomas F. King
Tom King’s CRM Plus -- Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.
Saturday, May 15, 2010
Monday, May 10, 2010
King, You're Full of Crap
Nobody else has asked this question – too polite, I suppose – so I will.
“OK, King, you’ve excoriated the Bureau of Land Management (BLM) for putting out a programmatic agreement (PA) on solar projects that turns on post-approval development of cultural resource management plans (CRMPs). You say BLM is violating Section 106 of the National Historic Preservation Act (NHPA). However, you conveniently ignore the fact that there are scores, hundreds, maybe thousands of PAs already in place all over the country that do exactly the same thing. For instance, there are military bases with integrated cultural resource management plans (ICRMPs), and there are reservoirs where the Federal Energy Regulatory Commission (FERC) has done PAs requiring CRMPs. There are interstate pipelines with PAs calling for CRMPs. If BLM’s solar PA is contrary to law, how come all those others aren’t? How come the people who drafted them – including you, King – aren’t in jail? Huh? Huh?”
Fair question, I (naturally) think, and it may well be that those who drafted some of those PAs should be in jail, but I do think there’s an important distinction between at least many of the CRMP (by whatever acronym)-based PAs now in existence and what BLM is trying to peddle to the solar power industry.
Consider, for instance, a FERC-regulated hydroelectric project – basically a reservoir – where FERC executes a PA requiring preparation of a CRMP. The undertaking subject to review here is not the construction of a new facility; the federal undertaking is FERC’s decision-making about whether to extend the power company’s license for another 20 or 30 or 50 years. So FERC causes the permitee to collect some basic information on what’s happening to “cultural resources” (admittedly, usually too narrowly defined, but that’s another issue) around the reservoir and then consults, for awhile at least, with the permitee, State Historic Preservation Officer (SHPO), tribes, and other interested parties and decides that, yup, there are ongoing effects (through erosion, public access, whatever), and a CRMP should be developed to deal with them. In this case FERC has taken effects into account, and it’s simply decided that a CRMP is a good tool for addressing them. Never mind whether they’re right or wrong in particular cases; they’ve played the game by the rules.
Or take the more difficult case of the interstate pipeline. The typical problem here is that the applicant for federal rights of way can’t get on the land they want to traverse to do surveys and such until they get their financing, and they can’t get their financing without their right-of-way, and they can’t get their right-of-way without the federal agencies going through Section 106 review. So they can’t possibly identify “all” the historic properties subject to effect (as if anyone ever could) before the federal action is taken. So what happens – in my experience, and admittedly it’s been awhile since I’ve done a pipeline – is that the agencies, applicant, SHPOs, tribes, et al sit down and review what they DO know about the rights-of-way and alternatives, and say, for example, that since the thing is basically a ditch in the ground, the major effects are going to be on archaeological sites, but maybe there’ll be visual effect issues when they go through the Green Ridge Mountains where the tribes carry out spirit quests on hilltops. Then they’ll put together a CRMP that spells out how archaeological sites will be dealt with and how further consultation will be done to control visual effects in the Green Ridge – and maybe that alternative route X will be used because it’s thought by the consulting parties to have the least potential for such effects. Again, they’ve taken effects into account, and used the CRMP as a mechanism for addressing those effects.
What BLM is proposing appears to be quite different. Apparently the applicant has had some archaeological surveys done, and maybe they’ve talked to some people about effects, but there’s nothing in the PA that even purports to represent consideration of the results of these studies, this consultation. Instead, the PA proposes that BLM will carry out the whole standard process of Section 106 review – identifying historic properties, evaluating them, determining effects on them, resolving adverse effects – via the CRMP after a project is approved. In this case, BLM has not taken effects into account; it has just proposed to promise to do so sometime down the road, after the project is approved.
Now, it may be that there are lots of other PAs out there that reflect the same approach as BLM is proposing for the solar projects; if so, then I’d say they’re contrary to the letter and spirit of the law. But those that use CRMPs (or ICRMPs, or HRMPs, HPMPs, HMPs or Freds) to address effects that have been recognized as occurring (as in a typical FERC hydro project) or reasonably predicted to occur (as in the pipeline example) seem to me to be in the clear. The more ethereal and abstract they get, however – the more they push everything off into the post-decisional future – the more likely they are to violate the straightforward language of the statute:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
(NHPA Section 106 [16 USC 470f], emphasis added)
“OK, King, you’ve excoriated the Bureau of Land Management (BLM) for putting out a programmatic agreement (PA) on solar projects that turns on post-approval development of cultural resource management plans (CRMPs). You say BLM is violating Section 106 of the National Historic Preservation Act (NHPA). However, you conveniently ignore the fact that there are scores, hundreds, maybe thousands of PAs already in place all over the country that do exactly the same thing. For instance, there are military bases with integrated cultural resource management plans (ICRMPs), and there are reservoirs where the Federal Energy Regulatory Commission (FERC) has done PAs requiring CRMPs. There are interstate pipelines with PAs calling for CRMPs. If BLM’s solar PA is contrary to law, how come all those others aren’t? How come the people who drafted them – including you, King – aren’t in jail? Huh? Huh?”
Fair question, I (naturally) think, and it may well be that those who drafted some of those PAs should be in jail, but I do think there’s an important distinction between at least many of the CRMP (by whatever acronym)-based PAs now in existence and what BLM is trying to peddle to the solar power industry.
Consider, for instance, a FERC-regulated hydroelectric project – basically a reservoir – where FERC executes a PA requiring preparation of a CRMP. The undertaking subject to review here is not the construction of a new facility; the federal undertaking is FERC’s decision-making about whether to extend the power company’s license for another 20 or 30 or 50 years. So FERC causes the permitee to collect some basic information on what’s happening to “cultural resources” (admittedly, usually too narrowly defined, but that’s another issue) around the reservoir and then consults, for awhile at least, with the permitee, State Historic Preservation Officer (SHPO), tribes, and other interested parties and decides that, yup, there are ongoing effects (through erosion, public access, whatever), and a CRMP should be developed to deal with them. In this case FERC has taken effects into account, and it’s simply decided that a CRMP is a good tool for addressing them. Never mind whether they’re right or wrong in particular cases; they’ve played the game by the rules.
Or take the more difficult case of the interstate pipeline. The typical problem here is that the applicant for federal rights of way can’t get on the land they want to traverse to do surveys and such until they get their financing, and they can’t get their financing without their right-of-way, and they can’t get their right-of-way without the federal agencies going through Section 106 review. So they can’t possibly identify “all” the historic properties subject to effect (as if anyone ever could) before the federal action is taken. So what happens – in my experience, and admittedly it’s been awhile since I’ve done a pipeline – is that the agencies, applicant, SHPOs, tribes, et al sit down and review what they DO know about the rights-of-way and alternatives, and say, for example, that since the thing is basically a ditch in the ground, the major effects are going to be on archaeological sites, but maybe there’ll be visual effect issues when they go through the Green Ridge Mountains where the tribes carry out spirit quests on hilltops. Then they’ll put together a CRMP that spells out how archaeological sites will be dealt with and how further consultation will be done to control visual effects in the Green Ridge – and maybe that alternative route X will be used because it’s thought by the consulting parties to have the least potential for such effects. Again, they’ve taken effects into account, and used the CRMP as a mechanism for addressing those effects.
What BLM is proposing appears to be quite different. Apparently the applicant has had some archaeological surveys done, and maybe they’ve talked to some people about effects, but there’s nothing in the PA that even purports to represent consideration of the results of these studies, this consultation. Instead, the PA proposes that BLM will carry out the whole standard process of Section 106 review – identifying historic properties, evaluating them, determining effects on them, resolving adverse effects – via the CRMP after a project is approved. In this case, BLM has not taken effects into account; it has just proposed to promise to do so sometime down the road, after the project is approved.
Now, it may be that there are lots of other PAs out there that reflect the same approach as BLM is proposing for the solar projects; if so, then I’d say they’re contrary to the letter and spirit of the law. But those that use CRMPs (or ICRMPs, or HRMPs, HPMPs, HMPs or Freds) to address effects that have been recognized as occurring (as in a typical FERC hydro project) or reasonably predicted to occur (as in the pipeline example) seem to me to be in the clear. The more ethereal and abstract they get, however – the more they push everything off into the post-decisional future – the more likely they are to violate the straightforward language of the statute:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
(NHPA Section 106 [16 USC 470f], emphasis added)
Saturday, May 08, 2010
Responding to a Rumor, or, Post-Hoc Planning is an Oxmoron
I'm told it's being noised about in California that I've been retained to comment on programmatic agreements (PAs) being proposed by the Bureau of Land Management for solar projects in the California desert. This in fact is not (currently) the case; I was approached to perform such services, but the key dates fell during the time I'll be out of the country without email (on Nikumaroro, in Kiribati), so I had to decline. Without such retention, however, I did file a comment on a current proposed BLM solar PA; my comment email is shown below. Attached to it was a marked-up copy of the PA itself, which I'd be happy to provide to anyone who's interested (IF you contact me in the next few days before I head for Nikumaroro). In short, I think BLM is getting waaaay carried away in its infatuation with PAs and "cultural resource management plans," to the point at which it's simply ignoring the straightforward letter of the law. Guys, read the statute: gencies are supposed to consider the effects of their proposed actions BEFORE they make decisions, not sometime afterwards.
Text of 5-1-2010 Email:
The California Unions for Reliable Energy, a consulting party in the above-referenced matter, have asked my advice in preparing comments on the draft programmatic agreement (PA), and in the interests of efficiency have suggested that I forward my initial comments directly to you. I trust that you will distribute them to the other consulting parties. I attach a precis of my qualifications for your reference; suffice to say that I have been involved in the development and implementation of many PAs over the last forty years, and in the development of regulatory and other guidance for their preparation and use.
I have appended comments on specific sections to the attached PDF copy of the draft. In summary, I think this PA represents a deliberate though probably unwitting effort on BLM's part to circumvent both the letter and the intent of Section 106 of the National Historic Preservation Act. That section directs federal agencies to take into account the effects of their actions on historic properties PRIOR TO the issuance of any license. The PA rather explicitly provides for such effects to be taken into account -- to the extent they will be -- AFTER issuance of a license for the Tessera Solar - Imperial Valley Solar Project. It is a sort of promissory note: the consulting parties are expected somehow to trust BLM to comply with the requirements of Section 106 at a later date, after it has deliberately NOT complied with them at the point in its planning process at which Congress directed it to comply.
I am aware, of course, of the allowance made at 36 CFR 800.1(c) for "conducting or authorizing nondestructive project planning activities before completing compliance with section 106," but note that this allowance is subject to the caveat that such actions must not "restrict the subsequent consideration of alternatives to avoid, minimize, or mitigate the undertaking's adverse effects on historic properties." This PA would permit BLM to authorize far more than "nondestructive project planning activities;" it would allow it to adopt an alternative and authorize its development, thus restricting the consideration of all other alternatives.
I am also aware of the provision at 36 CFR 800.14(b)(1)(ii) for a PA to be developed "when effects on historic properties cannot be fully determined prior to approval of an undertaking." This provision may well be relevant in this case, given the scale of the subject project and the dispatch with which BLM is expected to reach a decision about it. I do not believe, however, that this provision justifies entirely putting off all consideration of effects on historic properties until after BLM makes its decision. It may well be that BLM cannot identify every possibly affected historic property to the extent it thinks necessary to comply with Section 106, or to develop a detailed appreciation of every effect, before making its decision, but surely it can do SOMETHING to assess such effects. Simply adopting the applicant's "cultural resource" (sic: archaeological) survey reports and saying that further identification of historic properties, all effect determination, and all consideration of measures to avoid, minimize, or otherwise mitigate adverse effects will be done later (after project approval) does not, in my view, constitute the "taking into account" that the law requires. One might as well say that one will minimize the potential for damage from offshore oil spills by cleaning up after them.
There are other problems with the PA, notably the narrow focus on archaeological sites that is explicit in some sections and implicit in others (for instance, in the use of terms like "100 percent survey" and "avoidance"). Although occasional bows are made toward Indian tribal concerns -- which may relate to project impacts on extensive landscapes, viewscapes, plant and animal resources, etc. -- there is no real provision for addressing such concerns, and any similar concerns that non-tribal parties may have are not considered at all. The provisions for future consultation with outside parties -- such as they are -- are so narrowly structured as to be meaningless; typically, BLM will inform people of things, give them a restricted period in which to comment, and then decide what to do, without any required regard for what people have said. This is not consultation; it is a formula for high-handed disregard of public interests.
Again -- a PA may very well be appropriate in this case, but not the sort of pig-in-a-poke PA you have drafted. BLM should sit down with the consulting parties and seek to get a realistic handle on what the effects of the various project alternatives may be, then craft creative mechanisms for addressing them. This may or may not require more study of the alternatives and their specific effects; that is for the consulting parties to decide. Going forward with this PA as drafted, however, would be offensive to any fair reading of the requirements of Section 106 (to say nothing of NEPA, CEQA, AIRFA, RFRA, and perhaps other legal authorities), as well as insulting to the intelligence of the consulting parties.
Thank you for the opportunity to comment.
Tom King
Text of 5-1-2010 Email:
The California Unions for Reliable Energy, a consulting party in the above-referenced matter, have asked my advice in preparing comments on the draft programmatic agreement (PA), and in the interests of efficiency have suggested that I forward my initial comments directly to you. I trust that you will distribute them to the other consulting parties. I attach a precis of my qualifications for your reference; suffice to say that I have been involved in the development and implementation of many PAs over the last forty years, and in the development of regulatory and other guidance for their preparation and use.
I have appended comments on specific sections to the attached PDF copy of the draft. In summary, I think this PA represents a deliberate though probably unwitting effort on BLM's part to circumvent both the letter and the intent of Section 106 of the National Historic Preservation Act. That section directs federal agencies to take into account the effects of their actions on historic properties PRIOR TO the issuance of any license. The PA rather explicitly provides for such effects to be taken into account -- to the extent they will be -- AFTER issuance of a license for the Tessera Solar - Imperial Valley Solar Project. It is a sort of promissory note: the consulting parties are expected somehow to trust BLM to comply with the requirements of Section 106 at a later date, after it has deliberately NOT complied with them at the point in its planning process at which Congress directed it to comply.
I am aware, of course, of the allowance made at 36 CFR 800.1(c) for "conducting or authorizing nondestructive project planning activities before completing compliance with section 106," but note that this allowance is subject to the caveat that such actions must not "restrict the subsequent consideration of alternatives to avoid, minimize, or mitigate the undertaking's adverse effects on historic properties." This PA would permit BLM to authorize far more than "nondestructive project planning activities;" it would allow it to adopt an alternative and authorize its development, thus restricting the consideration of all other alternatives.
I am also aware of the provision at 36 CFR 800.14(b)(1)(ii) for a PA to be developed "when effects on historic properties cannot be fully determined prior to approval of an undertaking." This provision may well be relevant in this case, given the scale of the subject project and the dispatch with which BLM is expected to reach a decision about it. I do not believe, however, that this provision justifies entirely putting off all consideration of effects on historic properties until after BLM makes its decision. It may well be that BLM cannot identify every possibly affected historic property to the extent it thinks necessary to comply with Section 106, or to develop a detailed appreciation of every effect, before making its decision, but surely it can do SOMETHING to assess such effects. Simply adopting the applicant's "cultural resource" (sic: archaeological) survey reports and saying that further identification of historic properties, all effect determination, and all consideration of measures to avoid, minimize, or otherwise mitigate adverse effects will be done later (after project approval) does not, in my view, constitute the "taking into account" that the law requires. One might as well say that one will minimize the potential for damage from offshore oil spills by cleaning up after them.
There are other problems with the PA, notably the narrow focus on archaeological sites that is explicit in some sections and implicit in others (for instance, in the use of terms like "100 percent survey" and "avoidance"). Although occasional bows are made toward Indian tribal concerns -- which may relate to project impacts on extensive landscapes, viewscapes, plant and animal resources, etc. -- there is no real provision for addressing such concerns, and any similar concerns that non-tribal parties may have are not considered at all. The provisions for future consultation with outside parties -- such as they are -- are so narrowly structured as to be meaningless; typically, BLM will inform people of things, give them a restricted period in which to comment, and then decide what to do, without any required regard for what people have said. This is not consultation; it is a formula for high-handed disregard of public interests.
Again -- a PA may very well be appropriate in this case, but not the sort of pig-in-a-poke PA you have drafted. BLM should sit down with the consulting parties and seek to get a realistic handle on what the effects of the various project alternatives may be, then craft creative mechanisms for addressing them. This may or may not require more study of the alternatives and their specific effects; that is for the consulting parties to decide. Going forward with this PA as drafted, however, would be offensive to any fair reading of the requirements of Section 106 (to say nothing of NEPA, CEQA, AIRFA, RFRA, and perhaps other legal authorities), as well as insulting to the intelligence of the consulting parties.
Thank you for the opportunity to comment.
Tom King
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