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Collaboration in Agency-Led Environmental Decision Making Sara Cohen

Senior Fellow, The Consensus Building Institute

University of Massachusetts Boston, 10th Biennial Conference in Conflict Studies: The New Generation of Ideas, Oct. 31 – Nov. 1, 2014

Note this is not a typical research paper but rather an adaptation of a guide developed for a state agency audience. The guide has been extensively condensed and somewhat refocused for an academic conference audience. The complete original guide, including full descriptions of the case studies referenced herein, can be found at: http://www.cbuilding.org/news/new-cbi-report-collaborative-approaches-environmental-decisionmaking-state-agency%E2%80%99s-guide

Introduction Environmental agencies often need to take action – sometimes quickly – under circumstances in which one or more of the following factors make decision-making particularly challenging:

• Technical and scientific uncertainty

• Multiple jurisdictions and levels of government

• Public stakeholders that are increasingly involved and polarized

• Power dynamics that impact who has a voice in decision-making. Any of these factors can confound regulatory decisions, policy development, and agency responses to new conditions (e.g. new scientific studies, updates in technology, refocused administrative priorities). Failing to engage stakeholders under these circumstances quickly raises questions about effectiveness and legitimacy. But even when agencies do engage with stakeholders, their actions often still raise these questions. It’s not unfamiliar to see a public comment period that results in stakeholders feeling their input was disregarded and agency staff feeling they learned nothing new; or a public meeting that further polarizes attendees; or a stakeholder advisory committee that fizzles out with participants feeling like the mission of the group was never fully clear; or – perhaps most frustrating of all – a successful long-term collaboration that is foiled in the eleventh hour by parties whose perspectives were not included. Fortunately, there are also many instances when agencies have engaged in collaborative processes that have, by and large, made the conversation more effective, improved decisions, and broadened support for those decisions. This paper is intended to help understand some of the factors that distinguish the former outcomes from the latter. The paper is adapted from a longer guide intended to help environmental and natural resource state agencies that are interested in improving their track record with collaborative processes cross-fertilize, using each other’s experiences to build on successes. The original guide described twelve case studies in which environmental state agencies successfully used collaborative processes to:

• Shape and justify ongoing action

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• Increase legitimacy of a process and support for the outcome

• Break through longstanding deadlock

• Mobilize effective, coordinated action when time was of the essence

• Distill technical complexities and scientific uncertainty into manageable options and solutions

• Integrate action across levels of government and multiple jurisdictions

• Engage stakeholder groups that were historically hard to reach. This paper provides a brief orientation to the many forms of collaborative approaches available to environmental agencies. It then provides very condensed descriptions of the case studies (of which longer descriptions can be found in the original guide), touching on the range of strategies that were credited by participants in the cases with contributing to the above successes. Finally, it highlights points of guidance gleaned from across the case studies to help mediators and facilitators structure collaborations that help agencies and their stakeholders avoid some of the pitfalls described above and successfully advance their goals. Note that while the original guide focused on state agencies, which are well situated to convene collaborative processes, facing pressures and constraints from the federal government on one hand and local governments on the other, as well as from a range of non-governmental interest groups and advocacy organizations, the points of guidance could easily find application in any level of government.

Types of Collaborative Processes It can be easier to recognize the array of tools and research related to collaboration if aware of the many terms often used to describe it. These terms include: deliberative democracy; democratic governance; consensus building; multi-stakeholder dialogue; joint problem solving; stakeholder engagement; mediation; dispute resolution; conflict resolution; and even negotiation. The many names speak to a flexibility of ways to engage in collaboration, spanning the spectrum from small focus groups intended help an agency better understand the needs of its constituents to multi-year undertakings seeking consensus among competing interests on technically complex issues involving multiple jurisdictions. Understanding this flexibility is key to designing a collaborative process that fits the presenting goals and needs of an agency. Selecting a Collaborative Design How is one to know when a collaborative process is appropriate and what form of collaboration would best meet an agency’s needs? The matrix below was developed by professional mediators experienced in environmental conflict resolution and consensus building in public decisions. It summarizes a great deal of nuance in how collaborative processes in the public sphere can be structured, and to what ends. Its underlying premise is that agencies and their stakeholders or participants must be clear about the intent of the effort, whatever the details of a particular case and process are. It serves as an excellent tool for:

1) identifying where and whether a collaborative process fits into an agency’s present need, 2) focusing the goals for a given collaboration, 3) matching the structure of a collaboration to the desired outcome, and 4) setting appropriate expectations for any collaborative process selected.

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The collaborative structures in the matrix are not necessarily singular and discrete. Indeed, in the case studies referenced herein, they were often mixed, matched, and combined – even within a single overall initiative – to meet multiple simultaneous goals and to adapt a process as it matured over time. The collaborative structures shown in the matrix can all be used to help prevent conflict from developing (aka “upstream” of a conflict), but also provide some of the most timely and effective means of resolving conflicts that are already occurring or that have occurred among the parties in the past (aka “downstream” of a conflict).

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Case Studies The case studies selected for the original guide from which this paper is adapted represent the six New England states, as well as interstate collaboration. They showcase processes intended to explore the extent of interests and issues at stake, provide advisory recommendations to decision-makers, reach consensus on binding actions, and implement multi-party agreements, spanning the “Spectrum of Processes” matrix above. They demonstrate upstream and downstream interventions. They range from multi-year collaborations to short strategic facilitated conversations. They cover substantive issues including energy, water, ecosystem management, and infrastructure. And they involve governance tasks including permitting, negotiated rulemaking, crisis response, policy development, environmental enforcement, and long-term resource planning. Most importantly, they represent cases where good process design, effective facilitation, and strategic project management were credited by participants, at least in part, for the successes achieved. This section provides extremely brief overviews of the cases (which are described in more detail in the original guide) and highlights some of the factors credited by the participants interviewed with making a collaborative process useful in the face of the particular challenges described below – challenges that are likely to be familiar to those who have worked on environmental issues in, or with, state agencies, or for that matter, any level of government. The cases were not all successful in every aspect, and it would be misleading and overly simplistic to place all the credit for the successes that were achieved on the factors highlighted here. Nonetheless, the hope is to improve understanding of some collaborative governance processes that – for the most part – succeeded, and extract some of the most transferable lessons. Shape and Justify Action Moving Forward – Political pressures, conflicting mandates, disagreement about priorities, and inadequate information can often create uncertainty for state agencies at important junctures of action. The following two case studies illustrated collaborative approaches that helped states move beyond these circumstances into coordinated, publicly supported forward movement. In one case, the Massachusetts Department of Conservation and Recreation (DCR) suddenly became a high-profile target, criticized from many directions, as the agency in control of forestlands that had become the focus point of heated public controversy regarding resource protection and timber harvesting. In response, DCR undertook a long-range forest visioning process, engaging forestry experts, stakeholders on all sides of the issues, and the general public. Skilled outside facilitators from the Massachusetts Office of Public Collaboration helped DCR identify the diverse interests, rebuild trust through a fair and transparent selection of stakeholder representatives, separate the technical and value-based decisions, and reach consensus on a wide set of recommendations that established a clear framework for forest management decisions across DCR forests, moving forward. In a case representing similar challenges, the Vermont Agency of Natural Resources found itself embroiled in court proceedings around its responsibilities to manage stormwater discharges, an emerging area of focus in water quality impairment. In the first of a three-stage process, a skilled facilitation team led by the EPA New England Regional ADR Program, helped the

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agency convene a dialogue with a wide range of stakeholders to investigate the scientific and technical questions that underlay the controversy, identify areas of agreement and disagreement, and clarify everyone's understanding of the remaining issues, as a basis for more effective collaboration on policy issues moving forward. Subsequently, building on this technical foundation, a private facilitator worked intensively with stakeholders to help them present coherent recommendations to the legislature that articulated points of agreement and disagreement in informative and useful ways. Finally, in a third phase of collaboration, the stakeholders took on and resolved many of the more contentious policy and legal questions, building on the relationships, collaboration skills, and momentum of the earlier two phases. Break Through Longstanding Conflict – Taking action can sometimes be so fraught with contention that constructive dialogue, let alone agreement, seems unlikely. Under these circumstances, agencies can feel the need to either make a decision in the absence of dialogue and try to survive the controversy, or simply avoid action as long as possible. However, the following case illustrated how an effective collaborative process can help break through a long-standing deadlock. Since the 1980’s the CT Department of Environmental Protection and the town of Old Saybrook had been at odds over how to address serious water quality issues associated with the town’s many failing septic systems. In 2005, a skilled outside mediator was engaged. She used extensive private caucuses to help resolve intra-party differences prior to bringing the parties together. She then helped the parties come together and establish a fairly radical agreement in principle, and only then moved on to settle the substantial technical, administrative, and financial details of implementation. Along the way, extensive visual aids were used to help the parties digest the technical complexities – a necessity in bringing resolution to the decades-long stalemate. Distill Technical Complexities and Scientific Uncertainty into Manageable Options and Adaptive Solutions – Environmental problems are often the product of multiple complex factors, which play out on different timeframes and spatial scales. Additionally, scientific consensus is often lacking in areas in which agencies need to make decisions. The following two cases highlighted successful collaboration under circumstances of substantial political, financial, and scientific complexity. The first case addressed Rhode Island’s vulnerabilities to climate change and the state’s initiative to reduce greenhouse gas emissions in a collaborative stakeholder process. The second case involved the development of a multi-state compact within the northeastern U.S. (the Regional Greenhouse Gas Initiative), which established benchmarks for CO2 emissions from all the region’s power plants through a cap and trade program, and individual associated commitments from each signatory state. The same private facilitator was engaged in both cases, and in both cases the facilitator helped the parties organize an enormous amount of technical information, grapple with high degrees of uncertainty, and reach consensus on a wide variety of highly specific recommendations for action. Some key techniques included tracking and coordinating many simultaneous sub-processes, engaging a team of technical consultants to respond to the group’s questions as they arose, and helping the group establish mechanisms for decision-making in the face of uncertainty.

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Increase Legitimacy of a Process and Support for the Outcome – Many agency decisions are met with challenges on the basis of substance, process, or both – even when efforts were made to balance the relevant interests and act fairly in decision-making. The following three cases highlighted collaborative processes on controversial matters that used principles of transparency and effective engagement to achieve substantial stakeholder support for both process and product. The first involved a Federal Energy Regulatory Commission (FERC) settlement conference – a formal process by which stakeholders in the relicensing of large dams are invited to request specific studies by the applicant, to evaluate impacts of dam operations, and to propose conditions for the renewed license to mitigate negative impacts. If the parties can reach agreement, as they did in this case along Maine’s Upper Penobscot River, FERC can move forward with licensing conditions that are legitimate in the eyes of the stakeholders. The second case involved a multi-stage stakeholder engagement process in Massachusetts to develop an Ocean Management Plan to balance competing uses, support renewable energy opportunities, promote sustainability, and ensure consistency with laws from multiple jurisdictions. The third case involved a formal negotiated rulemaking process under the Rhode Island Public Utilities Commission to establish regulations requiring state electricity suppliers to substantially increase their reliance on renewable energy sources. In all three of these cases, negotiations upstream of regulatory and policy decisions, led by skilled mediators, demonstrated transparency on the part of the regulating agencies and allowed parties to work out many areas of contention in advance of formal agency action. In turn, the agency actions enjoyed substantially more stakeholder buy-in than they likely would have otherwise. Mobilize Effective, Coordinated Action When Time is of the Essence – Environmental agencies do not always have the luxury of time when taking action to address imminent threats. As a result, confusion and lack of coordinated action can occur, diminishing the effectiveness of the response. The following case study demonstrated that collaborative processes do not have to be extensive in time and resources to work. When the destructive, invasive zebra mussel made its first appearance in a Massachusetts lake, a rapid assessment determined that no other Massachusetts lakes contained the mussel but fourteen were at risk for infestation. The state agencies recognized the need to both move quickly to stop the spread of zebra mussels and to engage a variety of interest groups who faced high stakes with the management options under consideration. With assistance from the Massachusetts Office of Public Collaboration, the state convened a task force of state agencies, lake associations, fishing and hunting groups, wildlife and municipal interests, and scientists. Over four meetings in four months, the facilitation team helped the group educate themselves on the mussels’ ecology and mechanisms of spreading, investigate what other states were doing, evaluate the implications of various options, and reconcile the multiple interests. The group developed a set of consensus recommendations, along with enforcement and funding mechanisms, resulting in a response to the zebra mussel occurrence that was both timely and collaborative. Integrate Action Across Levels of Government or Multiple Jurisdictions – Many environmental resources cross geographic and administrative boundaries, and their management cuts across

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political jurisdictions and regulatory programs. The means for working across these divisions is often uncharted and confused by competing mandates. In the following two cases, proactive collaborative conversations helped integrate actions across multiple jurisdictions to address cross-boundary environmental management needs. In the first case, the CT Department of Energy and Environmental Protection (DEEP) convened a task force to address roadside vegetation management along utility lines after two storms in three months resulted in extensive power line destruction. The task force included the utilities, state environment and transportation agencies, municipal public works and tree wardens, environmental advocates, foresters, and utility regulators. The group worked with a professional facilitator over several months, who helped them structure the process and establish decision rules for weighing options in a fair and organized way, organized background information, facilitated large meetings and sub-group sessions, helped them work through contentious issues, facilitated public feedback sessions, and helped draft final recommendations. Participants felt success was due to having a forum for direct communication across all the relevant jurisdictions and a high level of technical expertise among the participants. The process enhanced understanding across sectors, organized information from disparate sources, and established consensus recommendations for ongoing collaborative work among the many jurisdictions and stakeholders. In the second case, a facilitator team led by the EPA New England ADR Program helped four New Hampshire state agencies proactively address cross-jurisdictional confusion regarding management of aquatic invasive species. The facilitators worked over two months to conduct interviews and clarify the legal and administrative landscape and key technical questions. Based on this background, the four agencies held a single facilitated meeting, and were able to improve their understanding of one another’s roles and develop a set of joint guiding principles to improve inter- and intra-agency consistency in resource management actions, and guidelines for cooperation moving forward. Engage Stakeholder Groups that were Historically Difficult to Reach – In some situations, effective environmental action relies on participation of stakeholder groups that have not historically been part of public engagement efforts. Identifying and addressing the barriers that might be at play in reaching these stakeholders is usually a necessary first step in engaging such groups. The following case illustrated a process that was greatly improved after the inclusion of a key stakeholder group. Federal regulators and Vermont agencies have been coordinating to address water quality impairment in Lake Champlain. Of key concern has been how VT could assure necessary reductions in phosphorus from stormwater and agricultural runoff. Engaging with the agricultural sector on the issue had been historically challenging. In 2012, VT agencies and the U.S. Dept. of Agriculture, with assistance from two organizations skilled in environmental facilitation, coordinated a broad stakeholder engagement process focused on the agricultural sector. In a series of focus groups and industry meetings, farmers and agricultural industry representatives provided feedback on the pollution prevention practices currently in place, their effectiveness, the strengths and weaknesses of existing incentives programs, ideas for improvements, and resources needed. The facilitators met separately with environmental

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stakeholders and brought feedback from this group to the sessions with the farmers. This format allowed the environmental community to weigh in, while affording the farm community their own forum to explore a diversity of views. The process will enable solutions for Lake Champlain phosphorous issues to reflect substantially more informed views about the agricultural sector’s role. Points of Guidance The collaborative governance case studies briefly touched on in this paper and detailed more extensively in the original guide represent a variety of contexts, formats, levels of effort, and substantive focus. Considering them collectively, certain themes emerge. These are offered here to help practitioners and agencies alike recognize the potential for collaborative processes to help advance their goals, and to structure those collaborations in ways that provide the greatest likelihood of success. Recognize the value of skilled facilitation The cases reviewed here all relied on professional facilitators for at least part of the process. Feedback from participants suggests that the particular skill and experience that the facilitators brought made a critical difference in how the collaboration was designed and carried out, and ultimately in it proving effective. When resources allow for it, using professional neutrals – especially those well versed in the needs of agencies and their stakeholders – is often worth the effort and cost. However, even when an outside professional cannot be funded or is not desired, recognizing the value of such a skill set should serve to encourage agencies to draw on in-house personnel who have demonstrated process design and facilitation skills when evaluating whether and how to engage in a collaborative process, as well as to proactively foster the development of these skills among agency personnel. Clarify your goals Not all collaborative structures are suited for every goal. One of the most important determinants of success is designing a collaborative process based on specific and clear goals. Sometimes the exercise of articulating the goals for a given process exposes that they need more clarification or may not be consistent among those planning the process. As was demonstrated in several of the cases, beginning the process by working to articulate common goals for the process, within and among the agency and stakeholder groups, will make selecting and designing a collaborative structure that is appropriate to the goals much more likely. Allocate resources that reflect the level of complexity As many of the cases highlight, technical complexities, multiple related processes, and several levels of stakeholder engagement can create the need for a complex and dynamic collaborative process. Under these circumstances, allocating resources for a skilled process manager to devote substantial time and effort to closely follow each component and coordinate them into a whole can be integral to success.

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But on the other hand, consider small initial steps

A large dynamic structure, however, doesn’t need to be the first step right out of the gate. If resources aren’t available, or parties are hesitant to commit to a larger endeavor, consider beginning with one or more smaller steps, such as: interviews with the respective interests to test collaborative waters; a non-agreement-seeking dialogue to allow participants to increase their understanding of the various perspectives; or a series of information sessions to bring people up to speed on technical factors affecting a case. Such steps may lay the groundwork for taking on a more ambitious collaborative process. Cultivate goodwill and trust early in the process In many of the cases highlighted in this guide, parties came into the process on the heels of conflict and mistrust. Generating early opportunities for parties to gain trust of one another, and of the process, can make the subsequent stages of collaboration more fruitful. One useful approach involved creating cross-interest work groups tasked with collaborating on less controversial (but still important) items to get things moving. This helped establish effective working relationships among the parties before tackling the more contentious issues. Be intentional, transparent, and accountable in convening participants for a

collaborative process This can be thought of as a subset of the suggestion, above, to cultivate goodwill early in the process. Using an inclusive process for selecting stakeholder representatives, technical experts, and the facilitator can be an early opportunity to showcase transparency and accountability to stakeholders and the observing public and allow agencies and other participants to build skills at collaborative decision-making. Some of the cases highlighted here had already achieved somewhat decreased levels of mistrust and improved relationships by the time heavy deliberations started, as a result of an inclusive process of selecting participants. Cultivate a problem-solving head space Agencies may attempt to save time in a collaborative process by generating proposals in-house, based on stakeholder discussions, and presenting these back to stakeholders for response, in an iterative fashion. As the case studies here all demonstrate, allowing participants themselves to grapple with various possible compromises, probe one another’s interests directly, and explore solutions that may be agreeable to all parties while meeting their own goals, leads them generally to a more creative and less reactive mind set, provides them with a more thorough sense of the areas in which they may need to compromise, and engenders a deeper sense of ownership of the proposals generated by the negotiations. In contrast, reacting to proposals developed by agency personnel – even ones designed to reflect fair compromises among the parties – rarely results in the same sense of ownership and support. In fact, such iterative processes can lead the parties to pull further apart to sway the agency’s proposal as far as possible toward their interests.

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Be deliberate in balancing time investment with process and outcome goals It can take significant time for stakeholders to engage effectively, understand the various perspectives, and finally, reach agreement. While shorter collaborative processes are virtually always preferred all things being equal, all things are rarely equal. These cases suggest several considerations when balancing the desire to get things done quickly against the need to achieve more stable, longer-lasting outcomes. Time saved by avoiding resolution of the most contentious issues or excluding some interests that are harder to reach or work with can be lost many times over if such decisions result in litigation or substantial stakeholder opposition to the outcome. Processes designed to simply gather stakeholder input almost always take less time than processes seeking consensus among stakeholders. However, an agreement-seeking process substantially increases the likelihood that stakeholders will understand the reasoning behind points of compromise and support a final product even if it represents less than their ideal outcome. Finally, increasing time investment in a collaborative process to achieve one agency purpose can sometimes help advance secondary agency goals, such as settling longstanding technical debates, better aligning related policies or regulations, and improving relationships. In these cases, time investment calculations should be defined broadly to account for all agency goals. Follow through when momentum exists Many of the collaborative processes described took advantage of decision-making momentum and newly opened channels of communication to continue collaborative work after an initial process had concluded. By remaining engaged with one another and in problem-solving mode, such momentum may allow participants to move onto implementation of decisions that came out of the process, or alternatively, to take on challenges that were outside the initial scope of the process but became ripe for collaboration as a result of it. Get feedback from participants at regular intervals Participants’ perspectives on how a process is going can be as diverse as their perspectives on the substantive issues at hand. It can be tempting for agencies and facilitators to gage the effectiveness of a collaborative process by their perceptions alone. However, soliciting explicit periodic feedback on the process from all participants can alert those managing the collaboration to the need to make important course corrections mid-stream. Analyze failures As every agency and facilitator knows, alongside the collaborative processes that prove successful, there are cases in which collaborative approaches fall short of the goals set out for them – sometimes far short. These cases, too, deserve conscientious evaluation. Clear-eyed retrospection in these situations advances the state of knowledge as effectively as analyzing success and makes it much more likely that future efforts will enjoy better outcomes.

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Conclusion

The cases described in the original guide and touched on in this paper demonstrate instances when state environmental agencies engaged in thoughtful, structured collaborative dialogue and decision-making. In each case, the process resulted in outcomes that helped the agencies more effectively achieve their goals and reduced the controversy they were likely to face moving forward. Most people would agree that clarifying information in the face of complexities, organizing and ordering decisions so they can build toward a larger solution, and improving people’s effectiveness at hearing and understanding one another’s perspectives – all of which occurred in the highlighted cases – can lead to better outcomes. How to achieve these things consistently is considerably less obvious. Fortunately, every experience adds to the collective understanding of the factors that make these dynamics more likely. This paper is intended to draw attention to considerations and factors that can increase the chances of environmental agencies – and facilitators and mediators working in their service – to identify when and which type of a collaborative process might best advance the presenting goals, and find success in implementing such a process.

Facilitation Organizations that Assisted in the Case Studies Adamant Accord The Consensus Building Institute The Environmental Mediation Center EPA Regional Alternative Dispute Resolution Program The Keystone Center The Logue Group Massachusetts Office of Public Collaboration Raab Associates

Acknowledgements Thank you to the many people interviewed for the case studies described, and to Patrick Field at the Consensus Building Institute for his collaboration and guidance. Thomas Burack, Commissioner, New Hampshire Department of Environmental Services Bruce Carlisle, Massachusetts Office of Coastal Zone Management Cindy Cook, Adamant Accord Stephanie Cooper, Massachusetts Executive Office of Energy and Environmental Affairs Loraine M. Della Porta, Massachusetts Office of Public Collaboration Laura DiPietro, Vermont Agency of Agriculture, Food, and Markets Chris Donnelly, Connecticut Department of Energy and Environmental Protection Vicky Drew, USDA Natural Resources Conservation Service Daniel Dutcher, Vermont Agency of Transportation Tom Flannery, Massachusetts Department of Conservation and Recreation Bob Grace, Sustainable Energy Advantage Kate Harvey, The Consensus Building Institute

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Susan Jeghelian, Massachusetts Office of Public Collaboration Doug Kane, Maine Department of Inland Fisheries and Wildlife Janet Keller, Rhode Island Department of Environmental Management Bill Lamkin, Massachusetts Department of Environmental Protection Bill Logue, The Logue Group Tim Obrey, Maine Department of Inland Fisheries and Wildlife Bob O’Connor, Massachusetts Executive Office of Energy and Environmental Affairs Jonathan Raab, Raab Associates, Ltd. Marli Rupe, Vermont Department of Environmental Conservation Amy Smagula, New Hampshire Department of Environmental Services Matt Strassberg, Environmental Mediation Center Lawrence Susskind, Massachusetts Institute of Technology, Program on Negotiation at Harvard

Law School, the Consensus Building Institute Doug Thompson, The Consensus Building Institute Ellie Tonkin, EPA New England Regional Alternative Dispute Resolution Program Betsey Wingfield, Connecticut Department of Energy and Environmental Protection About the Author Sara Cohen has trained in and practiced neutral facilitation and conflict resolution in the public policy arena for eight years. She wrote the original guide on which this paper is based as a Senior Fellow at the Consensus Building Institute. She also has 13 years of experience working for a state environmental agency, engaging in dozens of collaborative policy, regulatory, and scientific processes.