Sunday, September 04, 2011

Public Hearings, Public Participation, and Consultation

From Basin and Range Watch at

September 3, 2011 - The Moreno Valley office of Bureau of Land Management (not the local Needles BLM office) held what was thought to be a scoping meeting at the Primm golf course for First Solar's Stateline Solar Farm application for a Right-of-Way for about 2,200 acres of public land next to the Ivanpah Solar Electric Generating System. Members of the public drove hours from as far as Palm Springs, Needles, and Las Vegas and beyond to the meeting thinking that they would be able to give voice to comments concerning the project. Union members, environmentalists, members of the Chemehuevi Tribe, and other concerned citizens attended the meeting hoping to have a chance to give comments in a public venue to the federal agency responsible for permitting the project.

They were denied this chance.

The meeting turned out to be a chance for First Solar to tell the public a few items about the proposed project, and then a "crowd-management" session of tables with various contractors available to answer questions privately. This is not what the public wanted. Quite often, in well-run BLM offices, scoping meetings will give people a chance to vocally enter comments into the record, and even have a recorder present to do this. Often an audience wants to hear other's concerns and learn about different issues and opinions. This is democracy after all.

But lately a new style of scoping has emerged, where the public is handed a sheet of paper and in 75 words or less asked to write comments to be handed in to BLM. No oral comments allowed. Jeffery Childers, BLM Project Manager for the application out of Moreno Valley, California, denied the public any chance to give public comments at this meeting after First Solar gave a brief review of the project. In addition, a county sheriff squad car was parked outside the building, and three BLM Law Enforcement Rangers armed with handguns and tasers were present in the room.

A colleague sent me the above link, asking if I was aware of similar forms of “consultation” or “scoping” used on other projects around the nation. My answer was sort of “a pox on both your houses.”

I’ve seen the basic format described above – presentation followed by breakouts – used quite responsibly in a lot of public participation efforts; it can be a lot more effective than the traditional “public hearing” as a means of sharing information and helping people understand a project and its potential impacts. Public hearings, in my experience, too often devolve into what a tribal colleague once defined for me as “Three-I” sessions: “Inform, get Input, and Ignore.” The proponent makes its pitch, the public officials blather, then each member of the benighted public gets 3 or 5 or 7.2 minutes to speak, and does so with greater or less coherence and vitriol, whereupon the “responsible” agency thanks everyone and checks off “public hearing” on its list of things to do.

It’s sad that people concerned about project impacts, like Basin and Range Watch in this case, put so much stress on public hearings. Such a hearing is a chance to vent, but that’s about all it is.

On the other hand, a “present the project and have breakouts,” by itself, may not accomplish much, and certainly lacks the synergy of a public hearing. It may be particularly ineffective – even counterproductive as seems to have been the case with the First Solar “hearing,” particularly when people have to drive in from considerable distances with the expectation of being heard.

It ought to be noted that neither the traditional hearing nor the “present and breakout” approach constitutes “consultation” as defined in the regulations implementing Section 106 of the National Historic Preservation Act. Nor, of course, does it have anything to do with an agency’s responsibility to consult with Indian tribes on a government-to-government basis. Section 106 consultation is defined as:

the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them (36 CFR § 800.16(f), emphasis added).

Tribal consultation, and, I think, all consultation, ought to be similarly understood – you try to find out what people’s concerns are (which may be aided by hearings and presentation/breakout sessions), you discuss them – which means a back and forth conversation, whether face-to-face or via phone, letter, internet or smoke signal – and consider them, and most importantly, unless for some reason it’s not feasible to do so, you seek agreement about how those concerns will be addressed. You may not achieve it, but you try. Which means negotiation, and documenting its results before you make your decision.

That’s how an agency or project proponent actually respects somebody’s concerns. Hearings and presentation/breakout sessions may contribute to this sort of consultation, but they don’t substitute for it.

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