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