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.
Introduction
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
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