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.
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.
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).
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.
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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