That Petition

I understand that so far I’ve under 100 signatures on my petition to President Obama about reforming environmental impact assessment. Not surprising, I suppose, since it’s a fairly esoteric topic and many of those interested in it are also self-interested in maintaining the status quo. I’ve given the effort till March 1, at which point I’ll decide whether to deliver it or forget it.

So please, if you’re inclined to sign it, do so, and please distribute it to others who may do so. Here again is the text of the petition and the URL where it can be signed.

"Please seek amendments to the National Environmental Policy Act, or issue an Executive Order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects."

Sign at: http://signon.org/sign/president-obama-reform?source=c.fwd&r_by=408029

One gratifying thing is that a number of Indian tribes and tribal members are signing it, even though it’s not explicitly worded to address tribal concerns. I think tribes recognize that rotten, self-serving EIA is causing unnecessary destruction of environments important to them, and short-circuiting the respectful consultation the President Obama and Secretary Salazar keep promising. I hope more tribes and tribal members will sign on, and I very much hope others will, too. Wasting time and money on EIA that just whitewashes proposed projects, fails to consider feasible alternatives, and shuts the public out of decision-making serves no one.  In the long run it doesn't help even those who do whitewash EIA, because it erodes the value of such work to the public, and thus undercuts support for even bothering to do it.

I’ve heard from a few in the EIA community who think I’m nuts for tilting at this windmill, and some who think I should instead be working quietly behind the scenes to help the Council on Environmental Quality (CEQ) improve things from the inside. I’m all for working quietly behind the scenes, and believe it or not have done so fairly effectively from time to time. But I’ve seen no evidence that CEQ or anyone else in this administration is interested in getting help, or for that matter that they even recognize the existence of the problem. Yet the problem seems so obvious; here’s a reminder:

1. Project proponents prevail upon the political system to support particular projects or programs with little or no consideration for their potential environmental impacts.

2. The proponents are then tasked with finding out what those impacts will be, and reporting them to agencies that often have been (or think they’ve been) given their marching orders to “streamline” review.

3. The proponents hire (and hence can fire) the EIA firms that do the studies.

4. The EIA firms give their clients good report cards (how could they do otherwise?), and carefully avoid considering alternatives to the projects they review.

5. The public, and such very interested parties as Indian tribes, are effectively shut out of the process; there may be public hearings and opportunities to review draft reports, but not to influence decision making through serious, good-faith negotiation. Even with tribes – with whom agencies are required by multiple laws to consult – “consultation” is often only a pro-forma matter that wastes time and patience, accomplishing nothing but to wear people down until they acquiesce in disgust.

What should be done? Well, the following is from a letter I sent on December 18 of last year to the president’s senior policy advisor on Native American Affairs and to the Chair of CEQ. Having outlined the problem, and illustrated it with a specific case, I suggested that action be taken to reform the administration’s approach to EIA and tribal consultation, saying:

“Such an approach might have the following elements:

1. Honestly establish what the environmental impacts of proposed actions – including but not limited to “green” projects – are likely to be before supporting and promoting them, and before telling the federal establishment to fast-track their implementation;

2. In the course of such impact assessment, honestly consider a reasonable range of alternative ways to achieve the public purposes of such actions;

3. Do not allow agencies to rely on data on and analyses of impacts and alternatives prepared by project proponents unless they have been thoroughly vetted to eliminate bias;

4. Actually consult with tribes, as well as with other stakeholders, about whether and how to proceed with projects, which alternatives to pursue, and how to mitigate adverse effects; and

5. Don’t lie.”

Yes, that seems pretty simple. Unsurprisingly, my letter has gone unanswered.

Two Years of Studies!

I was browsing a shop at O’Hare Airport today, and the shop’s TV was blaring.

“They’ve had TWO YEARS to study the impacts of that pipeline!” some talking head (Rick Perry, I think; I couldn’t see the screen) was saying with disgust. “That’s ENOUGH! It’s time to APPROVE IT!”

I assume the subject was the Keystone XL Pipeline. The thought that ran through my head was: “does it never occur to this doofus that one might study something for two years and conclude that it was a bad idea?”

Of course I know that it would not – particularly if the doofus was Perry, but quite likely if it was almost any other American citizen. We’ve become used to the idea that studies – particularly things like environmental impact assessments – aren’t really supposed to TEACH us anything or provide a basis for making informed decisions; they’re just things that have to be gone through, part of the price of doing business, on the way to doing what we’ve already decided to do. Sometimes, of course, we don’t bother to do studies at all (case in point: invading Iraq without thinking about what to do afterwards). Other times we waive planning studies or attenuate them into near-nonexistence (case in point: Deepwater Horizon). But even when we do them we don’t take them seriously, and don’t entertain the idea that they might lead us to re-think our initial prejudices.

Unfortunately, it’s not just the Rick Perrys of the world who think and act this way. The Obama administration has been – and continues to be – just as big a bunch of doofuses (doofi?) when it comes to its own pet projects, be they renewable energy development or high-speed rail. And we who do the studies – at least we who do environmental impact analyses – haven’t done a thing to discourage this doofusity. We’ve happily drawn our fees doing bogus studies that make our clients’ projects look benign – maybe stretching them out for quite awhile and sucking as much money out of them as we can, but never, never, never allowing them to suggest that a project is a bad idea.

And after all, how could we? We’d be fired if we did.

I don’t know much about the Keystone XL, but I do know that two years isn’t too long to study the potential impacts of such a project, particularly when it will presumably have the effect of accelerating the despoliation of the Canadian landscape overlying the tar sands, with all its attendant effects on water and air quality, wilderness values, wildlife, First Nations rights, and other natural and cultural resources. And I wouldn’t think it entirely beyond reason for such a study – of whatever duration – to provide a rational basis for concluding that on balance the U.S. government ought not to be a party to the scheme.

Except, of course, that such studies don't provide a rational basis for anything.  They have long since become so unreliable, so biased, so untrustworthy as to be useless.

Which still doesn’t lead reasonably to the conclusion that two years’ study is enough, though; it’s probably way too much.

On the Efficient Destruction of Historic Places: Don’t Question Significance

Preface:

In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:

You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.

You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.

You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.


But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.


“Oh,” you say, looking at your lawyer, and she nods.


“So what’s to study?”


“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”


“What resources?”


“Cultural resources – that means historic landmarks, archaeological sites, things like that.”

You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.


“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”


And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.

OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…

Is It REALLY Historic?

Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.

Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.

Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.

Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.

If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)

It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.

And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.

So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”

Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.

True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”

We turned to the Air Force: “Any problem with that?”

“No,” the Air Force responded, “but we still don’t think they’re eligible.”

In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.

It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.

The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.

One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't.  This is flatly not true.  The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade.  What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest.  Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate.  You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.

Consultants: Finding a Donut Hole May Not Be In Your Client’s Best Interests

I’ve recently found myself reviewing a number of archaeological survey reports (usually mis-titled “cultural resource inventories”) prepared by consulting firms for agencies that propose to build things with the potential for churning up archaeological sites. I’ve been dismayed, though not especially surprised, to find a pattern of reportage that I have to think is designed to conceal potential archaeological problems and allow the consultants’ clients to find that their projects will have no effect on archaeological sites.

For example, in one case from southern California, construction is proposed on a bluff overlooking the ocean – a classic location for prehistoric occupation. The consultants’ report, in the section on “previous archaeological investigations,” presents a table showing all the archaeological sites previously recorded within a mile or so of the project location. A dozen or more – ranging from small deposits of mollusk shells, flakes, and fire-cracked rock to a large village/burial complex that’s been the source of considerable controversy over the years – lie within about 2-300 meters of the project location. The project location is completely covered by mid-20th century buildings, parking lots, sidewalks and landscaping. The consultants’ archaeologists duly walked the sidewalks and reported finding nothing. So, they reported, there’s nothing there and a finding of “no historic properties affected” is appropriate under Section 106. They say nothing about the topographic/environmental predictors of probable site location, and the fact that sites crowd the project location on every hand does not, it seems, suggest anything to them. And they evince no knowledge of the many cases in which more or less intact archaeological deposits and things like cemeteries have been found under modern buildings and landscaping.

In another case, from Oregon, the project site is a golf course on a riverbank, proposed for conversion to housing. The consultants’ report has a section on “ethnography” that is so general it fails to mention that tribes in the area tended to set up villages on riverbanks. In its section on “previous archaeological investigations” it reports one site, thought to have a lot of housepits and to be particularly important in understanding local prehistory, on the riverbank east of a sewer treatment plant; it fails to note that the proposed construction site is on the same riverbank, east of the same plant. From the project location map it appears that it’s maybe 150 to 200 meters from the sewage plant to the project site, so presumably the recorded site is somewhere on that intervening stretch of riverbank. Another possibly important site is reported just to the east; a bit of digging through the report and comparing it with Mapquest street maps reveals that it’s probably across the river from the project site, though the report doesn’t make this clear.

The Oregon project site, being a golf course, was a little more accessible than the California site, though its surface was obscured by turf. So the archaeologists walked transects across it and dug five or six test holes. In these they found a very light scatter of both prehistoric (flakes) and historic (bottle glass, etc.) artifacts. On the strength of this relatively negative data, they conclude that there’s nothing there.

Now, it may be that in both cases there really is nothing there, and undoubtedly it made the client happy in each case to learn that there were no archaeological impediments to the proposed project. The trouble, of course, is that this clean bill of health is not necessarily truthful. Prehistoric people, in my experience anyhow, were no respecters of site boundaries as defined by archaeologists (“No, no, Big Eagle, you can’t bury grandma over there; that’s outside the boundaries of site BS-2397!”). The presence of a “site” as defined by archaeologists simply means that people did stuff in the general area that produced something on that specific location that archaeologists can recognize. They may have done lots of other things in the broader area that archaeologists can’t recognize, or can’t recognize as well as they can other things. Burying dead people is one of those things. So the fact that your project footprint ju-u-ust misses the archaeologist-defined boundary of site BS-2397 doesn’t mean you’re not going to find grandma – maybe lots of grandmas – buried there. Or other things. And if the client doesn’t find out about those possible grandmas from your report, he or she may very well find out about them when they come up in a power shovel’s bucket. And living people start throwing things and seeking injunctions.

So, however much the client may want it, a determination that there’s nothing to worry about in a project area may not be in the client’s best interests. Such a determination can lull the client into thinking that all’s well, that he has nothing to worry about. Which is fine if it’s true, but a real problem if it’s not. And if there’s evidence that it’s not, and a consultant effectively covers it up, the consultant is setting the client up for a last-minute discovery situation that can be costly and embarrassing.

The reason to do background research in contract archaeology is not to find donut holes in which things can be built, but to make overall sense of what’s found in the transects fieldworkers walk and the test pits they dig. Contract archaeologists ought to take the results of background research, put them together with first-hand field observations, and give the client as realistic picture as possible of what archaeological problems his or her project may face. In the two cases I’ve outlined above, it seems obvious to me from the combination of topographic/environmental, ethnographic and archaeological data that the project sites may contain significant archaeological resources, and ought to be treated accordingly. My client may not be happy to have this advice from me, but he or she will be a lot less happy with a multi-million dollar work stoppage at the eleventh hour, and just may wonder why I didn’t mention the possibility early enough to let him or her do something about it.

Contents: Wiley-Blackwell Companion to CRM

In response to requests (well, a request), here's the table of contents of the Wiley-Blackwell Companion to Cultural Resource Management, scheduled for publication in the UK and US this spring.

Introduction
Thomas F. King

Part I. General Classes of Cultural Resources
Chapter 1 – Studying and Evaluating the Built Environment
Kate Kuranda
Chapter 2 – Principles of Architectural Preservation
David Ames & Leila Hamroun
Chapter 3 – Archaeology of the Distant Past
Michael J. Moratto
Chapter 4 – Archaeology of the Recent Past
Thomas F. King
Chapter 5 -Geographies of Cultural Resource Management: Space, Place and Landscape
William M. Hunter
Chapter 6 - Culturally Significant Natural Resources: Where Nature and Culture Meet
Anna J. Willow
Chapter 7 – History as a Cultural Resource
Deborah Morse-Kahn
Chapter 8 - Portable Cultural Property: “This Belongs in a Museum?”
Wendy Teeter
Chapter 9 - "Intangible" Cultural Resources: Values are in the Mind
Sheri Murray Ellis
Chapter 10 – Religious Belief and Practice
Michael D. McNally
Chapter 11 - Language as an Integrated Cultural Resource
Bernard Perley

Part II. Special Types of Cultural Resources
Chapter 12 - Challenges of Maritime Archaeology: In Too Deep
Sean Kingsley
Chapter 13 - Historic Watercraft: Keeping Them Afloat
Susan B.M. Langley
Chapter 14 - Historic Aircraft and Spacecraft: Enfants TerriblesRic Gillespie
Chapter 15 - Studying and Managing Aerospace Crash Sites
Craig Fuller and Gary Quigg
Chapter 16 - Evaluating and Managing Technical and Scientific Properties: Rockets, Tang™, and Telescopes
Paige M. Peyton
Chapter 17 – Historic Battlefields: Studying and Managing Fields of Conflict
Nancy Farrell
Chapter 18 - Managing Our Military Heritage
D. Colt Denfeld
Chapter 19 - Linear Resources and Linear Projects: All in Line
Charles W Wheeler
Chapter 20 - Rock Art as Cultural Resource
Linea Sundstrom and Kelley Hays-Gilpin

Part III. Perspectives on Cultural Resource Management
Chapter 21 – Consultation in Cultural Resource Management: An Indigenous Perspective
Reba Fuller
Chapter 22 - A Displaced People’s Perspective on Cultural Resource Management: Where We’re From
David Nickell

Part IV. Legal, Administrative, and Practical Contexts
Chapter 23 – Cultural Resource Laws: The Legal Mélange
Thomas F. King
Chapter 24 – International Variety in Cultural Resource Management
Thomas J. Green
Chapter 25 – Consultation and Negotiation in Cultural Resource Management
Claudia Nissley
Chapter 26 – Being a U.S. Government Cultural Resource Manager
Russell L. Kaldenberg
Chapter 27 – Making a Living in Private Sector Cultural Resource Management
Tom Lennon
Chapter 28 - The Historic Built Environment: Preservation and Planning
Diana Painter
Chapter 29 – CRM and the Military: Cultural Resource Management at War
Michael K. Trimble and Susan Malin-Boyce
Chapter 30 - A Future for Cultural Resource Management?
Thomas F. King