“Streamlining” seems to be what everybody wants to do these days, at least when it comes to environmental impact assessment (EIA) and project review under laws like Section 102(c) of the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). Every agency of federal and state government, it seems, is earnestly working on (or at least generating gas about) ways to “streamline” such review, and consulting firms are busy assuring potential clients that they can accomplish such “streamlining” if only they’re paid enough.
No one seems
to question the premise that “streamlining” EIA is a good thing to do – despite
the fact that innumerable EIA scholars and courts of law have identified laws
like NEPA and NHPA as “stop, look, and listen” laws. Their purpose is to consider what
we’re planning to do before becoming committed to it, to stop
long enough to look around at impacts and alternatives, to listen
to what people think and say about our plans, and – implicitly at least – to
try to do something in response to what we see and hear. Is “streamlining” such activities necessarily
a good idea? The last time I recall
“streamlining” the process of stopping, looking and listening in my daily life,
I got my foot run over by a taxi.
I’ve just
received a “request for quotes” (RFQ) from
the Nevada Department of Transportation that represents one of the more idiotic
examples I’ve seen lately of “streamlining” rhetoric. It begins:
The Nevada Department of
Transportation, Administrative Services Division is requesting quotes for The
“Everyday Counts” (EDC) program requires the streamlining of processes that
expedite transportation initiatives.
Let’s ignore the run-on sentences and give them the benefit of the doubt;
apparently the Department has something called the EDC program, and they’re not
really soliciting quotes for that program but for an activity that’s supposed
to advance its purpose – which is to “expedite transportation initiatives." In English that probably mostly means “build
and improve highways.”
The
request goes on:
Streamlining the Native
American consultation for the National Historic Preservation Act, as amended,
will provide a set of agreed upon steps for consultation and Section 106 will
result in quicker obligation of funds for projects.
It’s
great that they got that “as amended” in there; it really makes them look like
they know what they’re talking about. The main import of the sentence, however, lies in its last clause, which reveals the underlying rationale for "streamlining" -- to obligate funds more quickly than -- well, presumably more quickly than they're obligated now, which someone must think isn't quick enough.
There
follows a bit of boilerplate requiring contractors to have a million bucks
worth of liability insurance, have workers compensation insurance (regardless
of whether they’re employing any workers in Nevada) and a state business
license. Then there’s a statement of
work (SOW). After
reiterating the stuff about the EDC and streamlining, the SOW (sort of) specifies
what the Department is after:
A tribal workshop to jumpstart Native
American Consultation (NAC) Programmatic Agreements (PA) with Federal Highways
Administration (FHWA), the Nevada Department of Transportation (NDOT) and the
Nevada Tribes is the best first step.
Ah! So they’re seeking help in organizing and
running a workshop, the purpose of which will be to “jumpstart” (another
popular buzz-word) consultation toward a programmatic agreement (PA) – presumably
the kind of PA authorized by 36 CFR § 800.14(c) of the NHPA Section 106
regulations. We are not told who has
decided that such a workshop, or such a PA, comprise the “best first step” or
why this is thought to be the case. We
are next told that:
This workshop would encourage
development of either one PA for all of the Tribes or individual PAs for each
tribe by holding a two-day workshop headed by an outside Native American
Consultant/Facilitator.
Never
mind the infelicitous “This workshop will hold a workshop” language; it appears
that what they want is a 2-day workshop to “encourage” (who?) to develop either
a single PA or multiple PAs, which will specify – er – something that
(presumably) will expedite consultation.
Note
that nobody has said that there are problems with consultation as it’s
currently carried out; it’s just assumed to need “streamlining,” and this
workshop is supposed to somehow make it happen.
Note
too that the workshop is supposed to be headed by an “outside Native American
Consultant/Facilitator.” Why
“outside?” Can no one in Nevada do this
kind of thing? And if the C/F is
supposed to be a “Native American,” why did they send the solicitation to
me? I’m not Native American. To judge from some of the subsequent paragraphs it appears that they don't really want a Native American; they just want someone who's had some experience with Native Americans. Johnny Depp, maybe.
The SOW says
that:
FHWA-NV and NDOT are in process of
developing a National Historic Preservation Act Section 106 PA with the State
Historic Preservation Office and other Federal Agencies.
Negotiating
such PAs is a popular way for federal and state historic preservation officials
to spend time and justify their salaries. In my experience they
seldom accomplish anything other than to befuddle anyone outside the closed
circle of government who wants to participate in project review. I suppose that is a worthwhile
accomplishment from the government’s point of view.
So
they’re negotiating a PA with the SHPO and “other federal agencies” (but not,
apparently, with tribes, local governments, property owners, or plain old
taxpayers), so:
As a follow up to that document, FHWA-DC
and FHWA-NV would like to pursue a NAC PA(s) with willing tribes in Nevada. To
begin this for the first time in Nevada, a facilitator with Native American
consulting experience would help all of the invited parties to bridge early
difficulties and move the documents forward to a rough draft stage.
Well,
that might be true, but before contracting for such facilitation, wouldn’t it
be a nice idea to find out whether any of the tribes think such a PA is needed
or appropriate? What if the Department and its consultant throw this
party and nobody comes?
The
next section of the SOW is titled “Why Nevada is ready for this,” and says:
1) Progress on the Section 106 PA has
stated that Tribal lands in that document will not be covered. The NAC PA(s)
would move to do that. 2) Standardizing NAC would help promote better relations
and communications with all parties involved while also increasing the
likelihood that NAC will get done in a timely manner.
One might quibble
that a state whose officials are unable to construct an English language
sentence may not be the most ready to undertake the creation of responsible
consultation systems; one might also note that it’s the NHPA Section 106
regulations, not “progress on the … PA” that highlights the obvious fact that the
SHPO can’t negotiate a PA about what happens on tribal lands. But never mind; it’s not implausible that
some sort of standardized consultation would improve at least the timeliness of
consultation. So maybe there’s some
utility in the proposed enterprise.
But the
threshold question is not whether Nevada is “ready” for a PA with tribes, but
whether Nevada is authorized to negotiate such a PA on behalf of the
Federal Highway Administration. It is
the federal government, not state governments, that is responsible in law for
government-to-government consultation with tribes. Has FHWA found a legal way to delegate this
responsibility to the State of Nevada?
If so, what is it? If not, why
should any tribal government give the Nevada DOT the time of day? The Department seems simply to assume that it
has the authority to negotiate a PA, and that the tribes will jump to attention
when they’re invited to consult.
If I were
considering offering a proposal in response to this solicitation (I’m not), I’d
certainly want answers to these questions, and I’d want to know how the
Department is consulting with tribes now.
What’s done, how’s it working? What
are the problems that motivate the move toward a PA? What needs “streamlining?” My strong suspicion is that nobody knows; it’s
just assumed that “streamlining” is a good idea.
This brings
us back to the title of the program to which the RFQ refers: “Everyday Counts.”
What does
this mean? Does it refer to the counts
the Department must make on an everyday basis, of traffic volumes and
such? I doubt it. Does it relate to members of the European
nobility hiding out in the Reno suburbs?
Probably not. Indeed, the RFQ’s use
of the acronym “EDC” suggests that the actual program title is “Every Day
Counts.”
Which conveys an air of urgency. Every day
counts; we must get on with our work, not waste time. An admirable attitude for public servants to
have unless it leads them into thoughtless, ill-considered decision
making. That’s a big “unless,” and it’s
what’s troubling about government’s fixation on “streamlining.” Certainly we shouldn’t waste time; certainly
we shouldn’t engage in pointless proceduralism; certainly we should try to be
efficient and use our time wisely. But I’m
afraid that many in government have come to believe that project review under
NEPA and NHPA is pointless proceduralism and nothing else, which by its very nature ought
to be “streamlined” – out of existence, if possible. “Stop?
Look? Listen?” Hell, we know what we need to do; let’s get
it done! Every day counts!
It makes my foot hurt.
No comments:
Post a Comment