Tuesday, June 19, 2012

Petition is Over the Fence

I tossed my petition over the White House fence today.  Actually not; I sent it by Priority Mail – the only likely difference being that it cost me six bucks but I didn’t have to go downtown.

The petition, faithful readers may recall, asks the president to:

“Please seek amendments to the National Environmental Policy Act, or issue an executive order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects.”

578 people signed the petition, and I’m very grateful to each and every one of you.  I imagine that all our signatures are wasted, but one has to try.  Thanks very much to all.

I covered the petition with the following letter:

Dear President Obama:

I supported your 2008 presidential campaign, and continue to support you on most issues, but am deeply disappointed with your handling of environmental matters. 

My specific concern is with environmental impact assessment (EIA) under the National Environmental Policy Act (NEPA) and related legal authorities.  EIA in my experience has become largely an exercise in whitewashing plans for projects that often have serious potential for damage to our natural and cultural heritage.  I published a book on this subject in 2009 (Our Unprotected Heritage; Left Coast Press), and hoped that your administration would recognize the problem and do something about it.  There has been no evidence of recognition, and you have made the problem worse with your simple-minded direction to agencies to “fast-track” ostensibly “clean” energy development in the west.  This has had particularly devastating impacts on the environments of Indian tribes, whose interests you suggested you would attend to when you endorsed the United Nations Declaration on the Rights of Indigenous Peoples.

To see if I was utterly alone in my concern about this issue, I sponsored a petition via Sign-on.org – something I had never done before and in which I admit to no expertise.  I can’t say the petition exactly went viral, but it did attract over 500 signatures, many of them from people who are deeply involved in EIA and related fields.  This petition and its list of signatories are enclosed for your reference.

The petition asks you to do something about the core problem with EIA – that it is bought and paid for by the proponents of the projects whose impacts it is supposed to assess.  Addressing this problem would, I recognize, be in diametric opposition to the irresponsible “improvements” currently proposed to NEPA in the House of Representatives in H.R. 4377.

My sad experience with your administration to date does not give me cause for hope, but enclosed is my petition for what it is worth.


 I don't have the least expectation that this will accomplish anything, but I still appreciate the initiative and responsibility of all who joined me in the effort.


Sunday, June 10, 2012

Indian Tribes Are Insane!

Albert Einstein is said – by some – to have defined insanity as doing the same thing over and over again and expecting different results. By this definition, the Indian tribes of North America are certifiably nuts.

In 1492 and for a couple of centuries thereafter, Europeans landed on these shores in relatively small numbers, relatively lightly armed (though admittedly and usually unconsciously possessing wicked agents of germ warfare), and took over swaths of territory, establishing a toehold from which they would explode out across the continent. Did the tribes organize to oppose this invasion? They did not. Some accepted the foreigners as potential friends and trading partners, some actively assisted them in whomping on other tribes, settling their own scores in the process. Some doubtless just scratched their heads and wondered what the hell was going on. It’s safe to guess that most appealed to the Spirit World for succor and direction.

Bad mistake, obviously, but understandable – the Europeans were a new phenomenon; who WERE these guys? No one could be expected to know how to deal with them.

Fast forward to the late 18th century. The thirteen English colonies along the east coast are getting organized, and the Spanish colonies in the southwest are stabilizing (in advance of their early 19th century radical reorganization) and expanding. But there are powerful tribes in their way, who by now have had almost three hundred years to learn the ways of the wily white-eyes. Do the tribes organize to oppose the expansion of what would become the United States and, for awhile north of the Rio Grande, the Republics of Texas and Mexico? Nope. Despite the efforts of a few visionary leaders, once again it’s every tribe for itself. Some fight but almost always lose, being by now massively outgunned. Some help the Whites, and most cut deals – each largely uninformed by knowledge of what others are doing. Many sign treaties put in front of them by the Whites, in languages they don’t understand, translated by people with vested interests in their acquiescence. Many speeches are made, most appealing to the Spirit World, and often now to the great White father in Washington for relief from sufferings. Whatever happens in the Spirit World it doesn’t have much obvious consequence on earth, and the GWF gravely nods his metaphorical head and authorizes more oppression.

This sort of thing goes on throughout the 19th century, so that by the early 20th, most tribes are confined to reservations, often far from their ancestral homelands, severely restricted in their freedom, and oppressed socially and economically.

In the mid-20th century, some tribal leaders struggle mightily to put their centripetal tendencies behind them, with a rather surprising degree of success. We see the organization of intertribal groups like the National Congress of American Indians (NCAI), and later such effective action organizations as the American Indian Movement (AIM). We have the Trail of Broken Treaties march on Washington, the occupation of Alcatraz and the Bureau of Indian Affairs offices, and enactment of a string of laws to improve the lot of tribes, provide greater opportunities and protections, give a semblance of respect to tribal cultures, religions, languages, values. But by the early 21st century…..

Well, now the GW(sic)F continues, as GWFs always have, to mouth platitudes about respect for tribes, properly consulting them about their concerns, respecting their religions, cultures, values, and environments, while his agents ignore those selfsame variables and the tribes’ loud protests in their rush to – for instance – industrialize the southwestern deserts in the interests of ostensibly “clean” energy production. See for example http://www.blm.gov/ca/st/en/fo/palmsprings/Solar_Projects/Genesis_Ford_Dry_Lake.html and http://www.blm.gov/ca/st/en/fo/elcentro/nepa/ocotillo_express_wind.html.

And do the tribes organize, take collective action to resist this exercise in the arrogance of power? Nope. One or two file suit, but don’t put the resources into the effort to be successful – and certainly don’t cooperate with others to mobilize and deploy such resources. Others sign memoranda of agreement with the GWF’s agents – noir treaties – that acquiesce in the projects’ moving forward based on vague promises to do things better in future. Most just make moving appeals to the Spirit World, the “public,” and the GWF himself; see for example http://eastcountymagazine.org/taxonomy/term/14759, http://eastcountymagazine.org/node/9104. And the beat goes on.

There is, I suppose, virtue in consistency, but on the other hand – for pity’s sake, people, over the last 520 years this sort of strategy has effectively lost you the continent; why on earth (or anyplace else) do you think it will be effective now? Whether Einstein ever said it or not, you must be nuts.

Saturday, June 09, 2012

Idiotic Interpretations II: Vitare, Magna, Mitigare

(One in a series highlighting common but counterproductive interpretations of regulations and procedures in historic preservation and environmental impact assessment)

No, Caesar didn’t say it, and it’s a bit less sonorous than vini, vidi, vici, but it’s a catch-phrase that’s very attractive to inexperienced nit-pickers on the staffs of State Historic Preservation Officers (SHPOs) and the Advisory Council on Historic Preservation (ACHP). Their idiotic interpretation of the National Historic Preservation Act (NHPA) Section 106 regulations (36 CFR 800) is that by requiring consulting parties to consider and consult about actions to “avoid, minimize, or mitigate” adverse effects on historic properties, the regulations create a reality in which “avoidance,” “minimization” and “mitigation” are mutually exclusive outcomes, and that measures to achieve them must be considered in rigid sequence. We cannot consider “mitigation measures,” the “thinking” goes, until we have considered measures to “minimize” adverse effects, and we cannot consider “minimization” measures until we have considered ways to “avoid” adverse effects altogether.

Which doubtless seems very reasonable to people who value preservation of historic places above all else – surely our first priority should be to protect stuff unchanged; only if we can’t achieve that should we consider ways to reduce impacts, and only if these efforts fail should we turn to “mitigation” – which means…..

Uh, well, what does it mean? Dictionary.com defines the word to mean “lessening the force or intensity of something unpleasant,” or “the act of making a condition or consequence less severe.” So “mitigation” seems to include “minimization.” And the regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), at 40 CFR 1508.20, say that:

"Mitigation" includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing substitute resources or environments.

So under NEPA, both “avoidance” and “minimization” are forms of mitigation, while under NHPA, if one adopts the sequential model, they’re not. Since we characteristically try to do Section 106 and NEPA compliance concurrently – as encouraged by the regulations under both laws – this creates grounds for considerable confusion.

But the idiocy of the sequential model lies not only in creating confusion, but in driving us to do stupid and narrowminded things. For instance: I’ve recently been involved with a project to build a modest new clinical facility for the treatment of veterans suffering from post-traumatic stress disorder (PTSD) in the National Register-listed designed landscape of an existing medical campus. The facility has to be built on the campus in order to allow patients to use other facilities that exist there, and to make it readily accessible to the campus’ medical staff. Moreover, the beauty and tranquility of the landscape are thought to have potential therapeutic value, so locating the facility elsewhere would defeat its very purpose. And it’s worth noting that the whole campus was designed, back in its period of “historic significance,” for therapeutic purposes, so arguably locating the new facility elsewhere would be inconsistent with the historic significance of the landscape itself.

But according to the logic of the sequential model – which, I hasten to say, we managed to bury in ridicule early in the process of negotiating a memorandum of agreement (MOA) – the agency responsible for the project should have first demonstrated to the other consulting parties that it wasn’t feasible to build the facility someplace else, and then demonstrated that there weren’t ways to “minimize” its impacts, before negotiating about “mitigation” measures. And we could have argued at great, meaningless length about whether jiggering the parking lot around so as to reduce modification of a landscaped berm was “minimization” or “mitigation,” and hence, about in what sequence we should consider parking lot rejiggering vis-à-vis, say, window treatment and roof design.

I submit that most Section 106 cases are more or less like my PTSD example. What we end up negotiating in an MOA is some suite of measures that create a more or less positive outcome from the standpoints of the various parties involved in the consultation. We only complicate the negotiation, and tempt ourselves to engage in pointless semantic arguments, when we try to apply a rigid sequential model.

True, the Section 106 regulations do routinely direct us to negotiate ways to “avoid, minimize, or mitigate” adverse effects, implying that the three verbs refer to distinguishable phenomena. But even if this were true – and I’d argue that in the real world it’s not, despite the regulations’ inartful use of language – the regulations do not require that the phenomena be considered in sequence. I can walk to the grocery store or drive my pickup; while it is true that I can’t do both simultaneously, I certainly can, and do, consider both simultaneously when I realize that I’m low on food. In the same way, even if we hold that “avoidance,” “minimization,” and “mitigation” are separate things, we are not logically – or, I would argue, legally – required to consider them in sequence.

In a 106 consultation we should consider and negotiate flexibly and creatively about ways to accommodate the purposes of a proposed project with the interests of historic preservation, with an eye to other relevant public interests and values. Imposing a rigid structure on the consultation process – especially one based on questionable semantic distinctions – restricts our flexibility, diminishes our creativity, and is not helpful to anyone.