Monday, July 22, 2013

How to Sidestep Consultation

Claudia Nissley and I are wrapping up a book for Left Coast Press on consultation under laws like Section 106 of the National Historic Preservation Act (NHPA).  Naturally it promotes broad, inclusive consultation aimed at identifying and resolving conflicts between the cultural environment and modern development.  It should be out by mid-2014.

But what if you’re planning a project and you don’t want to consult with people about it?  What if you know what you intend to do, and by damn, you’re going to do it?  Or what if you’re the bought and paid-for consultant (sic) for someone who doesn’t want to consult?  I wanted to include a chapter in our book for such folks, but Claudia talked me out of it.  So I’ll present it here in three parts.  You needn’t thank me.


Many U.S. laws, executive orders and regulations, as well as some international conventions and other agreements or guidelines, call for project proponents and government agencies to consult with those potentially affected by proposed construction and land use projects.  But consultation is bothersome to government agencies and non-governmental project sponsors alike; most would prefer to avoid it.  After all, sponsors know what they want to do, and agencies usually have their marching orders; consultation is unlikely to deflect them far from their preferred courses of action.  To them, consultation is a costly, time-consuming frill. 

Under U.S. law, there are lots of ways to avoid, or at least minimize, consultation when planning a project.  It’s doubtless the same in other nations whose governments are more or less similar to that of the United States.  In nations with political systems that are dramatically different from ours (e.g., China, Cuba) the same strategies may not work, but variants on them doubtless will, and do. 

So, if you’re trying to put in a project and you want to avoid or minimize consultation with an indigenous group, local residents, or just about anyone else, here are a few strategies to consider.  Each may not work by itself to spare you the nuisance of consultation, but a combination usually will.  If you can’t avoid consultation entirely, some of these techniques may help you control the process and minimize its impacts.

Limit the Parties

You can try to consult only with those you’re absolutely required by law to consult – the fish and wildlife agencies in the case of the Endangered Species Act (ESA), the State Historic Preservation Officer (SHPO) under the National Historic Preservation Act (NHPA), agencies with “jurisdiction by law or special expertise” (whatever you take that to mean) under the National Environmental Policy Act (NEPA).  For the most part these consulting parties will be government agencies that are probably sympathetic to your interests – at least in their higher echelons where they’re sensitive to political pressure and far from the on-the-ground effects of projects like yours.  Even if they’re not entirely sympathetic, they’re predictable; they have rules and customs, time frames and deadlines; they’re used to taking part in polite meetings, composing and reading elliptical letters and memos, and trying to be good team players.  Or they’re satisfied to lodge their comments and say “well, we’ve done what we could.”  If worst comes to worst, they can be pressured by higher political authority – the congressperson or president to whom you’ve made campaign contributions.

Federally recognized Indian tribes in the United States are something of a special case, and minimizing consultation with them can be tricky.  The responsibility to consult with such tribes is a broad one, with a lot of case law behind it.  Every recent U.S. president has issued direction to consult (without saying much about how and when to do it), and every federal agency has its own internal guidance on the subject.  So unless you can take the position that whatever you’re proposing to do just hasn’t anything to do with tribal interests, you’re probably stuck doing some kind of consultation.  But it doesn’t necessarily have to be much consultation; you may be able to employ one or more of the strategies outlined below to keep it to a minimum.

Make FACA Your Friend

In 1972, reflecting increasing public unease about secret deal-cutting between government officials and outside groups, the U.S. congress enacted the Federal Advisory Committee Act (FACA).  In essence, FACA forbids U.S. government agencies from establishing and maintaining advisory groups made up of non-government employees, unless the groups are structured and governed according to strict regulations; their meetings have to be open, their membership public, and so on.

If you’re a non-governmental entity in the U.S., it may be worth considering arguing that the consulting parties seeking agreement about your project under a law like Section 106 of the NHPA constitute an illegally constituted advisory committee.  They probably don’t; federal agencies carry out hundreds of NHPA Section 106 consultations every year without running afoul of FACA, and there are fine points in the interpretation of FACA and its implementing regulations (41 CFR 101-6) that are generally thought to let Section 106 consultation off the hook (See King 2001:110-14).  That said, an implied threat to call the responsible agency to account for violating FACA may have a chilling effect on consultation, making the responsible agency act more formally and cautiously than it might otherwise behave, bringing more lawyers to the table, and generally encumbering the discussions.  This may not actually be to your advantage, so the FACA card is one to be careful about playing, but it’s there to be played if you think it will help you.

Inform, Get Input, and Ignore

If you have to create the illusion of consultation with more than a few controllable agencies or experts, the widely used “Three-I” or “I3” Model is often effective.  Using this model, you tell the world (or selected parts of it) about your project, let everyone say (or shout, scream, or sob) their pieces, assure them that you’ll give every consideration to their concerns, and then proceed with whatever you’re planning to do.  Maybe make a cosmetic adjustment here and there to create the illusion of responsiveness, but don’t really do anything serious.  Keep a good record of what everyone has said, how they’ve said it, and maybe make up an account of how you’ve considered it.  You can then assure the world, and whatever regulators or courts you may have to deal with, that you’ve bent over backward to accommodate people’s concerns.  And you usually will be able to demonstrate, if need be, that you’ve followed the letter of the law, since most environmental and cultural resource laws and regulations specify that public input be considered but don’t specify how to do it, and either don’t explicitly require consultation or just use the word without specifying what it means.

Here are some common components of a “Three-I” strategy:

The Obscure “Consultation” Letter

The obscure consultation letter (OCL) works particularly well with Indian tribes, but it can be applied to any group.  The idea is to write a letter to the group – automatically creating an official record of your “good-faith” effort to consult – but make it so obscure, so laden with bureaucratic and technical language, that it’s virtually incomprehensible to any normal reader.  Maybe include lots of attachments, too, the more technical the better.  In the case of a tribe, send it off to the Chairman or Governor or President and hope for the best.  Chances are there will just have been an election and the tribal offices will be all in flux, so the package will get lost or misdirected.  Even if that doesn’t happen, there’s a pretty good chance the OCL will wind up on somebody’s desk who will just scratch his or her head, wonder what it’s all about, not know what to do with it and as a result let it languish.  Give it thirty or sixty days, say “well, we tried,” and move on. 

With a group that’s not a tribe, you can’t take advantage of the confusion that’s commonly produced by tribal politics, but there’s still a good chance your OCL will get lost, buried under other incoming paperwork, or be puzzled over and argued about indefinitely rather than responded to with a demand that you sit down with the group and consult.

Post a Notice

When we consultants advise a corporate or government client that they need to consult, we’re often asked if this means they need to post a notice in the Federal Register, in the local newspaper, on the worldwide web, or on the bulletin board at the local Walmart.  We respond that these things may be among the ways to seek people with whom to consult, but by themselves they don’t constitute consultation.  Under some laws and regulations, though, posting a notice may be all you’re actually required to do, and if nobody responds, you’re good to go.  If you can get away with this, then of course you want to make the notice as unlikely as possible to attract attention.  As with a letter, if you can make it obscure, use a lot of technical or legal terms, and avoid any implication that the project might present environmental or cultural issues, you may be able just to post the required notice – specifying a deadline for comments, of course – and then wait to see what happens.  If nothing happens by your deadline, and no laws or regulations require you to do more, you can document what you’ve done and move on.

The Free-Floating Public Hearing

Americans in particular are suckers for public hearings.  It may be easy – even effortless – to maneuver opposition groups into reducing their demands for consultation to the insistence that you hold a public hearing.  So, then, hold one.  But avoid, if you can, any implication that it’s going to lead to anything, other than your sober consideration of everyone’s “input,” to which you really don’t need to give any consideration at all.

If you can manage it, keep your hearing as free-floating and unfocused as possible.  Make it a very general hearing on your project, its pros and cons, so you get all kinds of participants with all kinds of interests, most of whom just want the opportunity to spout off.  Make sure there are time limits – give each person three or five or six-point-three minutes to speak. 

Make sure that a lot of project supporters attend, and are as vocal as possible.  Pay them to come, if need be, and give them scripts.  If your project will (according to you, anyway) generate jobs, you can probably get unions to encourage their members to come, waving signs and pounding the floor.  Vocal project opponents can be helpful, too, particularly if they’re obvious nutcases; in the public eye their nuttiness will rub off on the whole opposition.

Document the hearing; keep good minutes and other records, so you can show anyone who asks that you really did a great job of consultation.  There’s a very good chance the opposition won’t be able to figure out how to insist on more, and if you’ve conned them into demanding a hearing, they’ll have little ground on which to build an objection; you’ve given them a hearing.

The Listening Session

The “listening session,” which has become popular in the early 21st century, is a variant on the public hearing.  A listening session quite explicitly isn’t intended to have an outcome; you just listen to what people have to say, act sympathetic, and then – well, then it depends.  A listening session can lead into real consultation: having heard that the opposition is really concerned about the neighborhood or creek or lake, and having maybe even come to understand something about why they’re concerned and what they think ought to be done, you can go forward to engage in real, informed, consultation.  But you can often get away with treating the listening session as consultation, and making it your one and only “consultative” activity.  It can make you look oh-so respectful of the opposition’s views, and give you cover while you do nothing whatever to address them.

In planning a public hearing or listening session, be sure to be sensitive to environmental justice issues – make sure the session is open and convenient to whatever minority or low-income groups may be affected, and if need be get a translator so you can say you’ve really tried to communicate.  It doesn’t necessarily have to be a relevant translator – if you’re faced with an Indian tribe whose elders preferentially speak their own obscure language, you can probably get away with a Spanish translator.  You don’t have to make anybody understand anything, or come away from the session understanding anything yourself; you just need to appear sensitive.                                               

Source cited

King, Thomas F.

           2001     Federal Planning and Historic Places: the Section 106 Process.
                        Lanham, MD, Altamira Press

 Upcoming in Part 2: Discouraging Dissent

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