Tuesday, July 23, 2013

How to Sidestep Consultation: Part 2

Second in a series on how project sponsors and government agencies can avoid consulting with Indian tribes, property owners, citizens groups, and other concerned parties under the U.S. cultural resource management (CRM) and environmental impact assessment (EIA) laws.

Discouraging Dissent

If you can’t get away with Three-I (inform, get input, and ignore) – if you actually have to sit down and talk with people, give them the opportunity, in theory, to influence your thinking through face-to-face discussion and/or extended correspondence – there are still plenty of ways to limit your risk of actually having to pay attention.  Here are a few possibilities:

Establish and Maintain Presumptions

One of the first things to do is to establish the presumptions that will structure and control anything that resembles consultation.  You need to control the conceptual environment within which discussions will take place.  In National Environmental Policy Act (NEPA) terms, you need to define the purpose of and need for your project in such a way as to minimize the range of alternatives that are open for discussion. 

Say, for instance, that you’re proposing to put in a solar energy project that will use thousands of acres of public land and have visual impacts on thousands more.  What’s the purpose of this project, and why’s it needed?  Well, you might think that the purpose is to generate a lot of electricity in a relatively clean way.  You might think that the need is to reduce dependence on fossil fuels.  But if you let purpose and need be defined that way, there are quite a few alternatives that might be considered – distributed solar panels on rooftops, solar over canals, solar in highway medians, maybe wind energy, tidal energy, and geothermal.  If it turns out that the site you want to use is a tribe’s spiritual landscape, or the local community’s favorite place to commune with nature, or the home of a lot of endangered squirrels and sand-fleas, you may find a constituency developing for such alternatives, and you’re going to spend a lot of time and money analyzing them.

But wait!  You can argue that the federal action here – the thing that requires review under NEPA and the National Historic Preservation Act (NHPA) in the U.S. system – isn’t the generation of energy!  No, it’s the issuance of a right-of-way by the federal land managing agency to allow you to put in the facility.  So the need is for the agency either to issue the right-of-way or not to; the purpose is to satisfy the agency’s regulatory requirements.  That means that the only relevant alternatives are to issue the right-of-way or not to, or maybe to issue it with a tweak here and an adjustment there.  Once you have this established, then the presumption that all the consulting parties – the serious ones, anyhow – must share is that your project either (a) will go in and produce the public benefits you claim, or (b) won’t go in and the public will be deprived of those benefits.  Your opponents are now arguing against the public interest in affordable, clean energy and reducing greenhouse gas emissions; they’re going to destroy the planet just to protect their esthetic values or crazy religious beliefs or hangup with fuzzy critters.  Needless to say, this will put them at a disadvantage.

Bury Them in Paper

This is a very popular and effective strategy in the U.S., particularly with Indian tribes since the 1990s when statutory changes and executive orders increased the level of official rhetoric calling for tribal consultation.  It’s pretty simple; you “consult” your potential opposition about everything, by sending them letters – preferably OCLs (See “The Obscure ‘Consultation’ Letter,” above) – about every project you consider, at each and every step in your planning, or about each and every subdivision of your plan.  Particularly if you’re communicating with an official body like a tribal council or tribal or local historic preservation officer, they’re probably getting similar letters from dozens of other agencies and project proponents; their in-boxes are overflowing.  Add to the pile!  And be sure to ask – ever so politely – that they respond to you by a date certain, so you can show that, gee, you tried, but they missed the deadline and you just had to move forward.

Of course, in this day and age it doesn't have to be paper per se.  Save trees; bury them in digital media.  My colleague David Rotenstein refers to what he calls "the two-ton PDF" -- massive e-documents made available via websites or as attachments to email, or maybe on CDs.  Some people won't be able to open them at all; others will just get lost trying to work through them.  You can put a lot of garbage into a two-ton PDF (or compilation of PDFs, MS Word documents, spreadsheets, digital imagery, and so on) at very low cost.  You look like you're sharing freely with concerned citizens, when really what you're doing is swamping them.  If you were consulting in good faith you'd organize the stuff carefully to facilitate its use, but you're not, so don't.

Invite to “Cooperate” or “Collaborate”

One way to confuse and discourage a potentially adversarial consulting party is to invite them to “cooperate” or “collaborate” in your project review.  This can be useful language to use in your OCL or public notice.  The recipient or reader doesn’t want to cooperate with you, or be a collaborator (Maybe she’s old enough to remember what that word meant in Europe during World War II, or knows how it’s still used in some countries with oppressive governments).  She wants to stop your project, or change it in some way.  By inviting her to cooperate or collaborate, you may actually discourage her participation.  Conveniently, in project review under NEPA, about the only way someone can actually be consulted about the project – and then only if they’re a government agency – is to be recognized as a “cooperating agency” (40 CFR §1501.6). 

Divide and Conquer

Easy as it is to be scornful of those who oppose or dislike your project, you’ll benefit by recognizing that they’re complex human beings, each with a range of concerns, values, and priorities.  Why?  Because you can exploit their differences. 

In my practice, I often deal with cases in which proposed projects will destroy what archaeologists call archaeological sites, and what Indian tribes or local communities think of as spiritually powerful ancestor places – where ancestors’ bones were sent on to the next world, or where the elders communicated with the spirits, and maybe still do.  Neither tribal people nor archaeologists may want the places destroyed, but they’re likely to be suspicious of one another, and not readily inclined to cooperate as parts of an organized, strategic opposition.  Or maybe the Sierra Club’s hydrologists say that anything over .2 parts per million of gunk in the PaleAle Aquifer would be a problem, while to the local tribe anything above zero parts per million would be intolerable, and they just can’t talk about it in terms of how much is too much.  If you have a situation like this – not necessarily Indians and archaeologists, or Indians and water quality experts but any case where potential consulting parties are antagonistic toward one another, suspicious of one another, or have conflicting world views – you can make good use of their differences.  Subtly encourage them, build on them, and play them up with other parties, particularly those with real power, like regulatory agencies.  There’s nothing wrong with your project; you’re just caught in the middle between opposing interests.  You may not be able to escape consultation altogether, but you should be able to keep the opposition disorganized, preventing anyone from developing enough power to mount a serious challenge.

Keep the Focus Narrow

You can usually minimize participation – though you’ll probably infuriate some consulting parties – by keeping the focus of the consultation as narrow as possible.  Insist on paying attention only to the specific subject of whatever law or regulation is driving the consultation, and define that subject as narrowly, rigidly, and arbitrarily as you can.  Or use some regulatory bureaucrat to do so.  If you’re consulting under NHPA Section 106, you can try to make sure the agenda of each meeting is organized around things like exactly what makes places eligible for the National Register of Historic Places, using lots of shorthand references like “Criterion C” and “contributing element.”  If NEPA is your authority you can debate the fine points of impact significance with reference to the definitions at 40 CFR 1508.27.  When somebody starts emoting about how important the Big Blue Oak or the Old Kissing Bridge is to the people of West Easterly, you (or your consultants) can patiently explain that you really can’t talk about these places unless and until they’ve been determined eligible for the National Register of Historic Places.  That’s not true under either NEPA or NHPA, but how are the West Easterlians to know?  And if they want to worry about the fish that swim under the Old Kissing Bridge or the birds that squawk in the branches of the Big Blue Oak – well, that’s a job for the professional biologists, and the fish and birds really don’t matter (you can say) unless they’re on a threatened or endangered species list.  And the PaleAle Aquifer?  Well, it’s surely much too big and ill-bounded to be eligible for the National Register, so we really can’t deal with it under NHPA – however culturally significant its water may be to the tribe – and the water quality issues will be taken care of by the water quality experts, so really, it’s off the table as a subject for consultation. 

 You can pretty certainly count on official experts like – in the U.S. – State Historic Preservation Officers (SHPOs), the National Park Service (NPS) and environmental protection agencies to support you in keeping the focus tight and bureaucratically defined.  Such experts are usually comfortable picking professional and procedural nits, and they're unlikely to feel invested in addressing stuff that’s just important to citizens.  They’re also often pretty easy to dupe; I run into a lot of SHPO and agency experts who may be perfectly competent architectural historians, archaeologists or wildlife biologists, but whose understanding of the relevant laws and regulations is, to be charitable, very limited. 

After a meeting or two at which the professionals slice and dice esoteric technicalities while everyone else sits and fumes, people will often throw up their hands and go away.  They may write a nasty letter or two, but you can respond to these with meaningless rhetoric (See OCL above).

 Keep Secrets

This is particularly fun to do with Indian tribes and Native Hawaiian groups in the U.S.  You have archaeological surveys done, or maybe even ethnographic studies asking tribal members to cough up information on what they value in the environment, and then you decline to share the resulting data with them, their lawyers, or their allies (like environmental groups) because – you say solemnly – releasing the data might endanger the sites and special places that have been recorded.  Someone might go out and dig them up, or do other terrible things to them.  This naturally limits the opposition’s ability to frame arguments against you, or at least requires them to generate their own data, which you can usually discredit or just ignore (See below).

In the U.S. there are legal grounds for keeping data on historic places confidential[1] – not very good legal grounds, but substantial enough to confuse people.  You can count on archaeologists and regulators to be supportive; they tend to be dogs in the manger when it comes to information on their own special places, and keeping cultural places secret is a knee-jerk response among Indian tribes.

 If you’re not dealing with archaeological and historic sites, or you’re not in the U.S., there may be other ways to hide data that could be troubling.  Maybe you can say it’s proprietary, or needs to be kept confidential in the interests of national security.  If you’re representing a government agency you may have the authority to keep almost anything secret.  And of course, you can always just lie.

Maintain Professional and Bureaucratic Standards

Reliance on standards has become a popular way for some land management agencies in the U.S. to avoid considering impacts on aspects of the environment that don’t fit neatly into pre-defined bureaucratic pigeonholes.  Even if it’s not as big a head-scratcher as whether the PaleAle Aquifer is a historic property – even if, say, the local tribe says it’s the 10,000 square mile landscape overlying the aquifer that’s culturally important -- you can rub your corporate or bureaucratic chin and say “Hmm, we’re not sure how to relate anything that big and ill-bounded to the regulations and guidelines on eligibility for the National Register of Historic Places; we’ll have to study that.”  Then keep assuring the world that you’re studying the matter very earnestly, while in fact you're doing no such thing, and in the meantime ignore the landscape and plan to take care only of the “archaeological sites” that the proponent’s paid-for contractors have oh-so-carefully defined in such a way as to be easily “avoided” by the mine pits, haul roads and spoil heaps.  Somebody may point out that what you're saying is that your information on cultural landscapes is incomplete, and according to the NEPA regulations if there’s “incomplete or unavailable information” that’s relevant to determining environmental impacts, you’re supposed either to get the information or explain why you can’t (40 CFR 1502.22).  To judge from recent cases I’ve seen, however, this seems to be a pretty easy reminder to dodge.

Shift the Burden of Proof

Under U.S. laws like NEPA and NHPA Section 106, it’s the responsible federal agency – or the project proponent at the agency’s direction and with agency oversight – that’s supposed to collect, organize, and analyze data on a project’s likely impacts.  Often, though, it’s possible to shift this burden onto the shoulders of the opposition.  The tribe and environmental group think the mine will pollute the aquifer?  Well, they haven’t presented any studies proving this to be the case.  The people of West Easterly think the Old Kissing Bridge is eligible for the National Register?  Well, they haven’t proved that it is; why don’t they prepare a nomination form and see if they can get it listed?  If they buy this argument – and many will, knowing no better – then they’ll have to go out and spend the money to gather and organize and analyze the relevant data.  They’ll have to gather comparative data on aquifers and mines, collect and organize historical data, beat up tribal elders to get them to share their spiritual secrets and traditional ecological knowledge.  Best of all, they’ll have to present the data on your terms, or on the terms of the oversight agencies – maybe even having to do things like nominating places to the National Register, using the strange, utterly counterintuitive forms on which NPS insists.  By doing so, they’ll take upon themselves the burden of proving the case, in the foreign – to them – language of science and bureaucracy.  They’ll probably fail, and waste a lot of time and money in the process.  Meanwhile you can proceed with your planning and ultimately with your project, while assuring everyone that you’re waiting ever so respectfully for the tribe or the environmentalists or the West Easterlians to make their case.  If they never do, or never do it to the satisfaction of the SHPO or the NPS or the environmental regulators, well shucks, that’s not your fault.

Forthcoming in Part Three:  Ignoring and Expanding Alternatives, and Manipulating Agreement Documents

[1] Section 9 of the Archaeological Resources Protection Act (ARPA) and Section 301 of NHPA.

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