Reclaiming NEPA’s Potential … · Report from a March 1999 workshop on the National Environmental Policy Act Co-sponsored by the O’Connor Center for the Rocky Mountain West at

ReclaimingNEPA’s Potential

Can CollaborativeProcesses Improve Environmental Decision Making?

Report from a March 1999 workshop on theNational Environmental Policy Act

Co-sponsored by the O’Connor Center for the Rocky Mountain West

at The University of Montanaand

The Institute for Environment and Natural Resources at The University of Wyoming.

The production of Reclaiming NEPA’s Potential was coordinated by staff at IENR and CRMW, with editingand design assistance from Tracy-Williams Consulting. Printing and Graphic Services at the University ofMontana provided publication services.

Additional copies of this publication are available, for $12 per copy, from CRMW or IENR (includes ship-ping and handling). Send a check payable to The University of Montana to: O’Connor Center for the RockyMountain West, Milwaukee Station, The University of Montana, Missoula, MT 59812. Or, send a checkpayable to The Institute for Environment and Natural Resources to: IENR, University of Wyoming, P.O. Box3971, Laramie, WY 82071-3971. For credit card purchases call (406) 243-7700.

This publication reflects the views and opinions of workshop participants, not necessarily those of the spon-soring organizations. The contents of this publication can be reproduced with the permission of IENR orCRMW and with proper credit to this publication.

© 2000 O’Connor Center for the Rocky Mountain West, The University of Montana

RECLAIMING NEPA’S POTENTIALCan Collaborative Processes Improve

Environmental Decision Making?

Report from a March 1999 workshop on the National Environmental Policy Act

Co-sponsored by

O’Connor Center for the Rocky Mountain WestThe University of Montana

and

Institute for Environment and Natural ResourcesThe University of Wyoming

March, 2000

Reclaiming NEPA’s Potential

ContentsAcknowledgements................................................................................................................iForeword.................................................................................................................................iiWorkshop Participants ........................................................................................................ivExecutive Summary ..............................................................................................................vAcronyms and Initialisms ...................................................................................................ix

Chapter I: Introduction ...............................................................................................11.0 Meeting the Original Purposes of NEPA................................................................22.0 Purpose and Objectives of Workshop .....................................................................43.0 Context of Workshop Discussions ...........................................................................44.0 Workshop Organization and Agenda .....................................................................5

Chapter II: NEPA Review..........................................................................................71.0 Introduction .................................................................................................................72.0 Legislative Vision for NEPA in 1969 .......................................................................73.0 NEPA Implementation and Interpretation .............................................................84.0 Drivers of Change.....................................................................................................135.0 Recent Efforts to Reenergize ...................................................................................186.0 Observations..............................................................................................................20

Chapter III: Existing Models for Improving Public Involvement and Collaboration under NEPA .............................................23

1.0 Introduction ...............................................................................................................232.0 Definition of Terms...................................................................................................233.0 Historical Trends in Governance and Decision Making ....................................244.0 Basic NEPA Process Steps .......................................................................................295.0 NEPA Public Involvement Implementation Types............................................30

Chapter IV: Barriers to Integrating Collaborative Decision Making into NEPA and Strategies for Overcoming Barriers ..............39

1.0 Introduction ...............................................................................................................392.0 Political Barriers and Strategies..............................................................................413.0 Administrative Barriers and Strategies .................................................................484.0 Legal Barriers and Strategies ..................................................................................545.0 Financial Barriers and Strategies ............................................................................566.0 Pilot Projects ..............................................................................................................577.0 Conclusion .................................................................................................................60

Sources ..............................................................................................................................63

Appendices .....................................................................................................................65A. The National Environmental Policy Act ................................................................65B. Case Studies ................................................................................................................73C. Supporting Documents .............................................................................................87

Acknowledgements i

The workshop on the National Environmental Policy Act, “Communica-tion and Consensus: Strategies for Fulfilling the Nation’s Environmental Pol-icy,”and the publication of the workshop proceedings were made possiblethrough financial support from a number of institutions, agencies, and cor-porations to the Institute for Environment and Natural Resources (IENR)and the O’Connor Center for the Rocky Mountain West (CRMW).

IENR received general operating support from the William and FloraHewlett Foundation, the Charles Stuart Mott Foundation, and the George B.Storer Foundation; and NEPA project support was provided by the WyomingGovernor’s Office, Arch Coal Company and the Weyerhaeuser CompanyFoundation. CRMW received general operating support from the Williamand Flora Hewlett Foundation and NEPA project funding from the Presi-dent’s Council on Environmental Quality. The workshop and other NEPA-related work of IENR and CRMW were also aided by commissions, endorse-ments, and encouragement of the President’s Council on EnvironmentalQuality, Wyoming Governor Jim Geringer, Senator Max Baucus of Montana,Senator Craig Thomas of Wyoming, and William Ruckelshaus, Chairman ofthe Board for the Institute for Environment and Natural Resources. The con-tent of this publication does not necessarily reflect the position or the policyof any of these organizations or individuals or the United States Govern-ment, and no official endorsement should be inferred.

The workshop organizers gratefully acknowledge the participants for theircommitment to the workshop’s objectives and for their cooperative efforts inthe preparation of this book. We are also deeply indebted to the managementand staff of The Nature Place, Florissant, Colorado, for providing outstand-ing conference facilities and assistance for this workshop. Special thanks goto all of the staff of the IENR and CRMW for their enthusiastic, effective, andhard work in planning and implementing the workshop and this proceed-ings volume.

Acknowledgements

March 30, 2000

The National Environmental Policy Act, passed in 1969, presents in clearand compelling language the central role of the environment in maintaining“the overall welfare and development of man.” Yet it is increasingly evidentthat its implementation falls short of that goal. Although the law clearly hasimproved the environmental stewardship of the federal government byrequiring federal agencies to notify the public and offer them the opportuni-ty to comment on environmental decisions, the process has too often come tofocus on procedural requirements rather than substantive outcomes.

We, the Board of the Institute for Environment and Natural Resources atthe University of Wyoming and the Advisory Board of the O’Connor Centerfor the Rocky Mountain West at The University of Montana, are pleased thatthis summary of the workshop co-sponsored by our two centers on “Com-munication and Consensus: Strategies for Fulfilling the Nation’s Environ-mental Policy” is being made available.

The specific goal of the workshop was to explore the potential role of col-laborative problem solving processes in the implementation of the NationalEnvironmental Policy Act (NEPA). This report was drafted by people whohave worked with NEPA on a daily basis and are familiar with its strengthsand weaknesses. It makes a number of observations and recommendationswhich, when taken as a whole, can significantly improve the administrationof this far-reaching law. This is important not just to streamline the functionsof government, but to begin to reverse the downward spiral of trust amongso many citizens who routinely express frustration with their government.

The workshop involved diverse interests engaging with each other in acollaborative process designed to further the national discussion and deliber-ation regarding NEPA—a cornerstone of U.S. environmental law. This work-shop is a prime example of the type of activity that the Institute and the Cen-ter were created to foster. Exploration and promotion of the use ofcollaborative processes to address natural resource and environmental issuesis a primary focus of the Institute and the Center, and, therefore, we areexcited about the result of the deliberations of this workshop.

It is important to emphasize that the specific goal of the workshop was tofacilitate interaction of diverse interests regarding the potential for improv-ing NEPA through the use of collaborative processes. It was not to reach con-sensus on every aspect of this complex issue, but rather to gain insights andperspectives regarding the diversity of interests upon which recommenda-tions might be crafted. That said, the workshop participants did reach gener-al agreement on a number of fundamental points.

Conversely, on a number of other very important issues, there were differ-ences between participants that are described in the text. This report is thework of those participants, and neither their agreements nor their continuingdifferences should be taken as reflecting the positions of either of our twoboards, or of their individual members. We are, however, united in com-mending this report to you for your consideration and for any response you

Reclaiming NEPA’s Potentialii

Foreword

We are

hopeful that

increasing the

effectiveness of

communication

through the use

of collaborative

problem-solving

approaches can

contribute to

greater trust

and better

outcomes.

Forward iii

might have to it. In fact, we see this report as a key means by which our twoorganizations can contribute to ongoing policy dialogue.

We believe, based on the results of the workshop, that there are a numberof issues that will benefit from further national discussion. They include:

I. The role of national versus local interests in NEPA processesWith public lands issues, there is tension between the view that local resi-

dents have closer knowledge of and are more affected by these lands andtherefore should play a larger role in making decisions affecting the localarea, and the view that because these lands are owned by all the people inthe country, they all should have equal say over their management. How canthese two views best be reconciled?

II. Extent of decision-making authority for collaborative groupsAgencies have statutory responsibility for making public land decisions,

yet many people are concerned that expending time and energy to partici-pate in collaborative groups is not worth it unless the group is actually mak-ing the decision, or at least having a direct influence on the decision. Other-wise, people often feel their input is meaningless. There is a tendency towant to come up with an answer as to exactly how much authority groupsshould have, but clearly this question needs discussion.

III. Cooperating agency status for state and local governmentsNEPA provides that state and local governments can sometimes be grant-

ed this status, but does not specify when that should happen. Does includingstate and local governments as cooperating agencies on NEPA processes leadto better integration of efforts and sharing of information? Or does it giveundue weight or unfair advantage to viewpoints that are mainly focused oneconomic development issues? Again, we see this as an ongoing discussionwhich we hope this report can further.

Resolution of these issues, as well as more effective implementation ofNEPA itself, is significantly hindered by the increasing lack of trust betweenthe public and our governmental institutions. We are hopeful that increasingthe effectiveness of communication through the use of collaborative prob-lem-solving approaches can contribute to greater trust and better outcomes.

Our own discussion of these issues has shown us the benefit of diversegroups continuing to engage on these and other critical issues related toimproving the NEPA process. We hope that this book, produced by a diversegroup of stakeholders, can serve to stimulate such discussions among thoseconcerned with these important issues.

William D. RuckelshausBoard ChairmanInstitute for Environment and Natural Resources

James ScottBoard ChairmanO’Connor Center for the RockyMountain West

Reclaiming NEPA’s Potentialiv

Harold BergmanInstitute for Environmentand Natural ResourcesLaramie, WY

Gail BinghamRESOLVEWashington, DC

Lynton CaldwellIndiana UniversityBloomington, IN

Nedra ChandlerMontana Consensus CouncilHelena, MT

Ray ClarkCouncil on EnvironmentalQualityWashington, DC

Bob CunninghamU.S. Forest ServiceWashington, DC

Andree DuVarneyNatural Resources Conservation Service Washington, DC

Hank FischerDefenders of WildlifeMissoula, MT

Geneen GrangerU.S. Forest ServiceJuneau, AK

Dan HeiligWyoming Outdoor CouncilLander, WY

Aloysius HoganHouse Committee onResourcesWashington, DC

Rich InnesRich Innes AssociatesWashington, DC

Michael JacksonQuincy Library GroupQuincy, CA

Tom JensenTroutman Sanders LLPWashington, DC

Daniel KemmisO’Connor Center for theRocky Mountain WestMissoula, MT

Doug KenneyUniversity of ColoradoBoulder, CO

Conrad LassWyoming Office of FederalLand PolicyCheyenne, WY

Connie LewisMeridian InstituteDillon, CO

Dan LueckeEnvironmental DefenseFundBoulder, CO

Lance McColdOak Ridge National LabKnoxville, TN

Jim McElfishEnvironmental LawInstituteWashington, DC

Kit MullerBureau of LandManagementWashington, DC

Deb PaulsonUniversity of WyomingLaramie, WY

Greg SchildwachterIntermountain Forest AssociationMissoula, MT

Margaret ShannonSUNY BuffaloAmherst, NY

Robin SmithMcMurry Oil Co.Casper, WY

Rhey SolomonU.S. Forest ServiceWashington, DC

Jim SoubyWestern Governors’AssociationDenver, CO

Charlie SperryHenry’s Fork FoundationAshton, ID

Jody SuttonContent Analysis EnterpriseTeamSalt Lake City, UT

Stan SylvaU.S. Forest ServiceCheyenne, WY

Steve ThomasGreater YellowstoneCoalitionLander, WY

Sarah Van de WeteringChronicle of Community Missoula, MT

John WikWik AssociatesNewcastle, DE

David WilliamsBureau of LandManagementWashington, DC

Pat WilliamsO’Connor Center for theRocky Mountain WestMissoula, MT

Workshop Participants

v

The main

theme of the

workshop was

to explore ways

to incorporate

collaborative

decision-making

approaches into

the NEPA

implementation

framework.

This book presents the proceed-ings of a workshop entitled “Com-munication and Consensus: Strate-gies for Fulfilling the Nation’sEnvironmental Policy.”1 The work-shop, held from March 20-23, 1999,was co-hosted by the Institute forEnvironment and Natural Resources(IENR) at The University ofWyoming and the Center for theRocky Mountain West (CRMW) atThe University of Montana.

The President’s Council on Envi-ronmental Quality had previouslybeen commissioned both IENR andCRMW to pursue projects that couldlead to improved implementation ofthe National Environmental PolicyAct (NEPA). One key element in theIENR and CRMW efforts, and themain theme of the workshop, was toexplore ways to incorporate collabo-rative decision-making approachesinto the NEPA implementationframework currently used by feder-al agencies.

The workshop provided a struc-tured forum for the exchange ofideas and debate on this theme.Thirty-six invited participants, rep-resenting varied perspectives,brought to the table their extensiveexperience with collaborativeprocess and past and current NEPApractice.

Workshop discussion focused onfour key issues: (1) NEPA imple-mentation history and current NEPAissues; (2) existing models for usingcollaboration or otherwise improv-ing public involvement underNEPA; (3) barriers to integrating col-laboration models under NEPA; and(4) strategies for integrating consen-sus and collaboration models underNEPA.

Although there was generalagreement on most of the issuesconsidered at the workshop andpresented in this proceedings book,unresolved differences of opinionemerged on a few key issues. Wehave attempted to fairly presentthese differences of opinion and pro-vide accurate descriptions of theparticipants’ diverse positions.

SUMMARY WORKSHOP OBSERVATIONS AND CONCLUSIONS

1.0 NEPA Review The NEPA Review Workgroup

discussed NEPA’s origins and itsimplementation history, with a par-ticular focus on NEPA Section 101’sprovisions for broad, comprehensiveenvironmental protection. Thegroup concluded that NEPA imple-mentation over the past 30 years hasgenerally gravitated toward a nar-row, procedural interpretation of theoriginal Congressional mandate.Workgroup discussion generatedseveral other observations and con-clusions.

• Decisions and actions of the execu-tive, legislative, and judicial branchesof the federal government haveshaped NEPA implementation andset guiding precedents, often empha-sizing procedural compliance ratherthan comprehensive protection mea-sures.

• Several “drivers of change” are cur-rently influencing federal agencies’perception of NEPA compliance andimplementation. Influencing factorsinclude frequent litigation, shrinkingresources, changing Congressionalmandates, the devolution of decision

Executive Summary

Executive Summary

making to state and local levels, andincreased public interest in decision-making participation.

• In response to EIS litigation, federalagencies have increasingly sought toproduce “litigation-proof” docu-ments. This defensive action tends todiscourage experimental NEPAprocesses involving collaboration orlarger scale analysis.2

• Recent efforts to change and improveNEPA implementation include legis-lation to limit the applicability ofNEPA on specific federal projects; the1997 CEQ NEPA effectiveness study;increased federal agency cooperation;a broader scope of environmentaldecision making; and Presidential useof NEPA as a grant of authority topreserve important aspects of ournational heritage.

• Because NEPA’s Section 101 goalshave not been incorporated intostrategies for solving larger intera-gency or intergovernmental issues,these issues have rarely been subject-ed to thorough public discussion andenvironmental analysis. There is anopportunity for federal agencies to

involve the public and other affectedagencies early in the NEPA processand for agencies to use the NEPAprocess for strategic planning inbroad geographic and ecologicalregions.

2.0 Collaborative Models The Collaborative Models Work-

group initiated their discussion witha review of how opportunities forpublic participation have beenincorporated into the NEPA process.Their review considered the evolu-tion of public participation strate-gies, up to and including the recentadvent of various forms of collabo-rative decision making.

The group’s conclusions andobservations include the following:

• During the two decades followingNEPA’s passage, the public exercisedtheir new right to participate inagency decision-making processesthrough public meetings and formalcomment opportunities. Some people,dissatisfied with NEPA process out-comes, brought their concerns to thecourts. In many instances, NEPA lit-igation successfully establishedagency accountability and responsi-

Reclaiming NEPA’s Potentialvi

Former Congress-man Pat Williams,now a Senior Fellowat the O’ConnerCenter for the RockyMountain West,talks with ProfessorLynton Caldwell,one of the principalauthors of NEPA.

bility. However, litigation has alsoresulted, at times, in a perception of“decision-making gridlock.”

• The public began to call for greaterpublic involvement in governanceduring the 1980s and 1990s. Collabo-rative approaches, some proposed,should be tested and considered fortheir potential to reduce the costs ofdecision making, better utilize localknowledge and scientific expertise,and air technical and value-orienteddebates in coordinated decisionprocesses.

• Over the past decade, individuals,agencies, and governments haveexperimented with collaboration, bothwithin and outside the NEPAprocess. Many collaborativeapproaches are characterized by vol-unteerism, inclusiveness, direct face-to-face communication among par-ties, and flexible designs that respondto changing circumstances and incor-porate newly interested players as aproject develops. Some people under-taking new processes believe collabo-rative approaches offer significantpotential benefits: to reduce costs ofdecision making and litigation; tobetter utilize local knowledge and sci-entific expertise; and to marry techni-cal and value-oriented debates incoordinated decision processes.

• Other recent innovations include thereintroduction of market mechanismsinto some forms of environmentalmanagement, the rapid proliferationof decision-making coalitions, andagency experimentation with greaterpublic involvement in the NEPAprocess.

• The workgroup laid out the basicNEPA process steps and examinedroles that the public usually plays ineach step. Three main types of publicparticipation and collaboration in

NEPA projects were identified: (1)traditional public involvement, (2)agency-initiated collaboratives, and(3) collaboration initiated by otherinterested parties.

Much remains to be learned aboutnew approaches to public participa-tion in decision making, particularlyin NEPA-related decisions. Theworkgroup identified several impor-tant questions and concerns aboutinfusing collaborative decision-mak-ing methods into NEPA: (1) To whatextent can new collaborativeprocesses supplement traditionaldecision-making methods? (2) Willthese collaborative processes satisfycurrent democratic notions of fulland balanced representation? and(3) What conditions are necessaryfor collaborative approaches to suc-ceed and what conditions indicatethat such approaches will not work?Chapter III includes a complete dis-cussion of this group’s conclusionsand concerns.

3.0 Barriers and Strategies At the beginning of the workshop,the Barriers Workgroup and theStrategies Workgroup discussedtheir respective issues independent-ly. It soon became apparent that thetwo groups needed to coordinatetheir thinking.

Accordingly, the groups spent muchof the last day at the workshop injoint session. The combined reportof these two workgroups is present-ed in Chapter IV. The key observa-tions and conclusions of the com-bined workgroups included thefollowing:

• In considering barriers to the use ofcollaborative decision making inNEPA implementation, participantsidentified four general categories:political, legal, administrative, and

Executive Summary vii

Collaborative

approaches…

should be

tested and

considered for

their potential

to reduce the

costs of decision

making, better

utilize local

knowledge and

scientific

expertise, and

air technical

and value-

oriented debates

in coordinated

decision

processes.

financial. They further identified spe-cific critical barriers within these cat-egories and directed strategies forovercoming these barriers. Each ofthe identified barriers and suggestedstrategies are listed and discussed inChapter IV, and a summary listing ispresented in Table IV-1.

• Currently, the federal governmentdoes not provide effective leadershipto encourage the use of more flexibleapplications of NEPA. Administra-tive and CEQ failure to promote theuse of collaborative approaches toNEPA implementation has resultedin Congressional failure to providefinancial support for collaborativeinitiatives.

• One of the critical barriers to supple-menting the NEPA process with col-laborative approaches is the lack ofcomprehensive documentation andanalysis. Participants concluded thata series of pilot projects could testand demonstrate the effective use ofcollaboration. Pilot project evaluationand analysis could also fill existingknowledge gaps. These projectswould use collaborative processes atthe earliest stages of NEPA projectsto foster community involvement,invite a diversity of views, and pro-duce well-supported, environmental-ly-sound decisions. Although partici-pants were not in agreement abouthow pilot projects should be promotedand implemented, there was strongsupport for further action on thissuggestion.

Endnotes1 Although the workshop was convened

under this title, the title of the proceed-ings document has been changed to moreaccurately reflect the direction of work-shop discussions. The revised title is“Reclaiming NEPA’s Potential: Can Col-laborative Processes Improve Environ-mental Decision Making?”

2 CEQ, 1997a.

Reclaiming NEPA’s Potentialviii

ADR Alternative Dispute Resolution

BLM Bureau of Land Management

CEQ Council on Environmental Quality

CFR Code of Federal Regulations

CRM Coordinated Resource Management

EA Environmental Assessment

EIS Environmental Impact Statement

EQIA Environmental Quality Improvement Act

FACA Federal Advisory Committee Act

FONSI Finding of No Significant Impact

GPRA Government Performance and Results Act

ID Interdisciplinary Team

NEPA National Environmental Policy Act

OEQ Office of Environmental Quality

ROD Record of Decision

TEA-21 Transportation Equity Act for the 21st Century

USFS United States Forest Service

Acronyms and Initialisms ix

Acronyms and Initialisms

Reclaiming NEPA’s Potentialx

Notes

1

In three short

pages, NEPA sets

out a comprehen-

sive national

environmental

policy directing

federal agencies

“…to use all

practicable

means…to create

and maintain

conditions under

which man and

nature can exist

in productive

harmony….”

On January 1, 1970, PresidentNixon signed the National Environ-mental Policy Act (NEPA) into law.This landmark legislation providesthe foundation for environmentalprotection in the United States. Inthree short pages, NEPA sets out acomprehensive national environ-mental policy directing federalagencies “…to use all practicablemeans…to create and maintain con-ditions under which man andnature can exist in productive har-mony….”

Specifically, NEPA requires thefederal government to establish andfollow procedures to assess the envi-ronmental impacts of proposedmajor federal actions. (See AppendixA for a copy of the Act.) Over thepast 30 years, NEPA has successfullyrequired federal agencies to considerthe environmental impacts of pro-posed actions and provided animportant vehicle for publicinvolvement in federal decisionmaking.

On the occasion of the 25thanniversary of NEPA’s passage, thePresident’s Council on Environmen-tal Quality (CEQ) set out to examineNEPA’s effectiveness and to identifyfactors critical to the success of theNEPA process. CEQ released areport on its findings, The NationalEnvironmental Policy Act: A Study ofIts Effectiveness After Twenty-fiveYears,1 in January 1997. As an out-growth of this study, CEQ launcheda series of efforts to identify strate-gies that could make NEPA imple-mentation more effective and fullyrealize NEPA’s national environ-mental policy objectives.

As part of this effort, Kathleen

McGinty, then Chair of CEQ, com-missioned a set of NEPA-relatedactivities by both the Institute forEnvironment and Natural Resources(IENR) at the University ofWyoming and the Center for theRocky Mountain West (CRMW) atThe University of Montana.Wyoming Governor Jim Geringer,Senator Max Baucus of Montana,and Senator Craig Thomas ofWyoming also added their endorse-ment of the NEPA-related work ofIENR and CRMW.

IENR’s and CRMW’s indepen-dent examinations of NEPA’s effec-tiveness generated two importantobservations. First, analysis revealedthat the rules and procedures form-ing the framework for NEPA imple-mentation often result in narrowly-defined decisions that do notadequately address environmentalquality issues. Secondly, IENR andCRMW observed that NEPA deci-sions by federal agencies are fre-quently challenged through litiga-tion. Although litigation is animportant tool, it can lead to distrustand stalled decision-makingprocesses.

In light of these observations,IENR and CRMW concluded thatcollaborative and consensus-basedapproaches for resolving environ-mental and natural resource man-agement disputes could provide onevehicle for improving future NEPAimplementation. To explore ideasabout how this might be achieved,IENR and CRMW co-sponsored aworkshop in March 1999 entitled“Communication and Consensus:Strategies for Fulfilling the Nation’sEnvironmental Policy.”2

Introduction

Chapter I

IntroductionHarold Bergman, Daniel Kemmis

The chapters that follow summa-rize the discussion among workshopparticipants and constitute theworkshop proceedings.

1.0 MEETING THE ORIGINAL PURPOSES OF NEPA: OLD VS.NEW APPROACHES

Thirty years ago, U.S. citizens andlawmakers began to pay consider-ably more attention to the environ-mental impacts of human activities.A series of statutes addressed thisconcern through legislative action:Congress acknowledged nationalenvironmental protection prioritiesin the National Environmental Poli-cy Act, the Clean Water Act, theClean Air Act, and Superfund legis-lation.

These legislative efforts empow-ered agencies and citizens to makegreat progress over the last threedecades in their efforts to preserveand conserve natural resources.NEPA, particularly, has made agen-cies take a hard look at the potentialenvironmental consequences of theiractions and brought the public into

the agency decision-making processlike no other statute.3 However,insight gained by years of practiceand observation reveals some trou-bling patterns in NEPA’s implemen-tation.

NEPA has all too seldom beenimplemented in accordance with theintentions that motivated itsdrafters. Section 101 of NEPA,where the real spirit of the Actresides, calls for the nation to care-fully protect its natural resources forfuture generations:

“The Congress, recognizing the pro-found impact of man’s activity on theinterrelations of all components of thenatural environment, particularly theprofound influences of populationgrowth, high-density urbanization,industrial expansion, resource exploita-tion, and new and expanding technolog-ical advances and recognizing furtherthe critical importance of restoring andmaintaining environmental quality tothe overall welfare and development ofman, declares that it is the continuingpolicy of the Federal Government, in


View of Pike’sPeak from the

porch of TheNature Center

near Florissant,Colorado, where

the workshop washeld.

2

cooperation with State and local govern-ments, and other concerned public andprivate organizations, to use all practi-cable means and measures, includingfinancial and technical assistance, in amanner calculated to foster and promotethe general welfare, to create and main-tain conditions under which man andnature can exist in productive harmony,and fulfill the social, economic, andother requirements of present and futuregenerations of Americans.”

Section 102(1), following thiscomprehensive statement, reiteratesCongress’ intent to weave NEPA’svisionary goals into all aspects ofnational policy and action: “Con-gress authorizes and directs that, tothe fullest extent possible…the poli-cies, regulations, and public laws ofthe United States shall be interpret-ed and administrated in accordancewith the policies set forth in thisAct.” Section 102(2) goes on toestablish NEPA’s specific proceduralrequirements, primarily the prepara-tion of environmental impact state-ments.

Although NEPA establishes anambitious and far-reaching environ-mental mandate, over the past threedecades NEPA implementation hasfocused almost exclusively on theprocedural requirements in Section102. The Section 101 vision, and theSection 102 mandate to integrateenvironmental protection measuresinto all federal actions, havereceived little attention. Agencieshave become adept at preparingenvironmental assessments andenvironmental impact statements,but have not always been as suc-cessful at making environmentaldecisions that respect the substan-tive goals of NEPA.

The courts, the CEQ, federalagencies, and Presidential adminis-trations have not found an effectiveway to link Sections 101 and 102

together to implement a comprehen-sive environmental policy for thenation, although the original man-date stated that “…it is the continu-ing responsibility of the FederalGovernment to use all practicablemeans, consistent with other essen-tial considerations of national policy,to improve and coordinate Federalplans, functions, programs, andresources…” to meet NEPA’s goals.NEPA’s implementation, boileddown to the bare bones of the legis-lation, holds the document prepara-tion process to be an end in itself,rather than a means to involve thepublic in making decisions that bal-ance human needs with environ-mental protection.

During the past 25 years, howev-er, new approaches to naturalresource management decision mak-ing have also been emerging. Com-munities, governments, and otherinterests have begun to experimentwith collaboration, consensus-build-ing, and public dispute resolution,seeking new ways to bring diverseinterests to agreement and buildworking relationships among stake-holders.

In some cases, these innovativeapproaches have been integratedinto the NEPA process effectively. Inmany other cases, it has been a chal-lenge to combine collaborative andconsensus-building processes withthe statutory, legally-defined NEPAprocess under Section 102.

It is clear that the traditional“rule-based,” procedural approachin Section 102 of NEPA provides animportant structure for NEPA imple-mentation and offers a tested, man-dated framework for basic publicinvolvement processes. However,the traditional process often fails toeffectively incorporate public opin-ion and adequately address criticalenvironmental protection issues.

Introduction

Agencies have

become adept at

preparing

environmental

assessments and

environmental

impact state-

ments, but have

not always been

as successful

at making

environmental

decisions that

respect the

substantive

goals of NEPA.

3

The practice of collaborative, on-the-ground problem solving hasdeveloped to the point where it may,in fact, offer new hope for realizingthe original intent of NEPA.

2.0 PURPOSE AND OBJECTIVES OF THE WORKSHOP

The purpose of the workshop wasto bring practitioners together toexplore the potential for collabora-tive approaches to improve theeffectiveness of NEPA implementa-tion. Participants tested the workinghypothesis that stakeholder collabo-rative processes can help resolveenvironmental policy disputes thatoften arise in federal land and nat-ural resource management deci-sions.

Workshop participants engagedin a thoughtful and wide-rangingdiscussion—one that this proceed-ings book will hopefully continue.Only through continued evaluationand careful analysis will it be possi-ble to determine whether collabora-tive approaches will realize theirpotential to prevent litigious battles,protect the natural and human envi-ronment, and fulfill the vision forthe National Environmental PolicyAct.

With this purpose in mind, IENRand CRMW organized the NEPAworkshop to meet the followingspecific objectives:

• Review the successes and failures ofNEPA implementation, particularlyin relation to land and resource man-agement issues in the western UnitedStates.

• Review collaborative and consensus-based models and methods as theyhave been applied to non-NEPA andNEPA issues. Identify barriers to theuse of these models in NEPA imple-mentation.

• Recommend implementation strate-gies for testing the use of collabora-tion and consensus models in actualNEPA projects. Aim to select andstudy candidate demonstration pro-jects that will help address legislativeand legal barriers and create newmethods for judging the success orfailure of outcomes.

• Transmit workshop conclusions andrecommendations to legislative,agency, and public leaders and pub-lish a workshop report for dissemina-tion to CEQ, workshop fundingsources, interested parties, and thepublic.

3.0 CONTEXT OF WORKSHOP DISCUSSION

Early in the workshop partici-pants discussed and generallyagreed on several key points thatprovided a foundation for later dis-cussions:

• NEPA is basically sound; the Actitself does not need to be changed.Bringing together a group of interest-ed parties to actively collaborate andassist in the NEPA process is not apanacea: it is a tool for selected,appropriate cases and is a supple-ment, not a replacement, to existingprocesses.

• NEPA and its implementing regula-tions provide a solid basis for incor-porating more, and improved, optionsfor citizen involvement in NEPAimplementation. The Act’s Title IIauthorizes agencies to “utilize, to thefullest extent possible, the services,facilities and information…of publicand private agencies and organiza-tions, and individuals…”

• Innovative approaches to public par-ticipation, alternative dispute resolu-tion, and collaborative conservationhave been tested on the ground and

Reclaiming NEPA’s Potential4

are continuing to evolve. As with allnew processes, some of these innova-tions have been successful, whileothers have had ambiguous or unsat-isfactory results.

• Neither statutory mandates requiringcollaborative processes, nor mandateson how such processes must work,should be convened under NEPA.Rather, the emphasis should be onseeking appropriate opportunities toencourage, fund, and enable thesediverse processes, and on evaluatingthe results to improve future work.

4.0 WORKSHOP ORGANIZATION AND AGENDA

The original concept for a co-sponsored IENR/CRMW workshopgrew out of IENR Board discus-sions. After IENR and CRMWapproved the concept and generalplan for the project, a NEPA Work-shop Steering Committee (consistingof Daniel Kemmis and Art Noonanfrom CRMW, Bob Cunninghamfrom CEQ and later the USFS, TomJensen from Troutman Sanders LLPand the IENR Board, and HaroldBergman from IENR) workedtogether through 1998 to develop anagenda and to identify potentialworkshop participants.

The workshop (which ran fromMarch 20 through 23, 1999 at TheNature Place near Florissant, Col-orado) gathered together 36 invitedparticipants. Participants represent-ed a diversity of sectors and per-spectives, including federal andstate government agencies, naturalresource industries, environmentalinterest groups, professional envi-ronmental and collaborative processconsultants, and academics.

The assembled group offeredindividual and collective expertisein NEPA history, NEPA practice, andcollaborative process. Prior to theworkshop, participants were

assigned, based on a distribution ofexperience and perspective, to oneof four workgroups: (1) NEPAimplementation history and currentNEPA issues; (2) existing models forimproving public involvement andcollaboration under NEPA; (3) barri-ers to integrating collaboration mod-els under NEPA; and (4) strategiesfor integrating collaboration modelsunder NEPA.

The first full day of the workshopwas devoted to a series of presenta-tions on each of the four workgrouptopics, conducted by participantswith relevant experience and knowl-edge. Separate workgroup discus-sions and writing sessions filled thefollowing two days, along with briefplenary sessions to hear workgroupprogress reports. Discussion alsotook place during breaks and specialinformation exchange sessions. In afinal plenary session, each of theworkgroups presented final reportsand conclusions for general consid-eration and discussion.

At the close of the workshop,workgroup chairs and several par-ticipants stayed to write and editinitial drafts of the workgroupreports. Following the workshop,the participants (working throughtheir workgroup chairs and with theassistance of IENR and CRMW staff)reviewed and revised all chapters ofthe workshop report. The results ofthe workgroup discussions are pre-sented here in Chapters II-IV.

ENDNOTES1 CEQ, 1997a.2 Although the workshop was convened

under this title, the title of the proceed-ings document has been changed to moreaccurately reflect the direction of work-shop discussions. The revised title is“Reclaiming NEPA’s Potential: Can Col-laborative Processes Improve Environ-mental Decision Making?”

3 CEQ, 1997a.

Introduction

The emphasis

should be

on seeking

appropriate

opportunities

to encourage,

fund, and enable

these diverse

processes, and

on evaluating

the results to

improve future

work.

5


Notes

7

The legislation

established

a strong

mechanism for

protecting

environmental

quality and

ensuring public

participation.

At times,

however, NEPA’s

implementation

has fallen short of

its original goals.

1.0 INTRODUCTIONWhile Congressional intent in The

National Environmental Policy Act(NEPA) Section 101 clearly calls forthe nation to implement broad envi-ronmental protections, NEPA imple-mentation over the past 30 years hasgenerally gravitated toward a nar-row, procedural interpretation ofthis mandate. This is not to say thatNEPA has entirely failed to serve itsintended purpose. The legislationestablished a strong mechanism forprotecting environmental qualityand ensuring public participation.

At times, however, NEPA’s imple-mentation has fallen short of itsoriginal goals. Federal agencies meetNEPA’s procedural requirements tosupport their project-specific deci-sion-making processes. Agenciesrarely look beyond the particular toimplement provisions for compre-hensive protection.

An initial interpretation suggeststhat this procedural emphasis hasresulted from the way individualfederal agencies have interpretedthe Act and related CEQ regulations.However, deeper analysis revealsthe key roles the executive, legisla-tive, and judicial branches of gov-ernment have played in the evolu-tionary process which supersededSection 101’s original goal—to pro-tect the environment for future gen-erations—in favor of the proceduralrequirements described in Section102.

This chapter presents a 30-yearhistory of NEPA. First, the chapterbriefly reviews the guiding vision ofSenator Henry Jackson and other

NEPA drafters. The following sec-tion summarizes the relevant rolesof the executive, legislative, andjudicial branches of government anddiscusses how their cumulativeinterpretations have shaped NEPAimplementation.

Several “drivers of change”—critical current issues which arecausing federal agencies to re-thinktheir NEPA implementationapproaches—are then described, fol-lowed by analysis of a number ofrecent efforts to re-invent or re-ener-gize NEPA. Finally, the chapter pro-vides observations about the NEPAanalysis process to set the stage forsucceeding chapters.

2.0 LEGISLATIVE VISION FOR NEPA IN 1969

By the time Congress passedNEPA in 1969, public concern aboutthe deteriorating quality of thenation’s environment had beenbuilding for more than a decade.Beginning in 1959, with MontanaSenator James Murray’s bill to estab-lish a high-level council on conser-vation and natural resources, eachsuccessive Congress considered leg-islation designed to reconcile andcoordinate federal processes, poli-cies, and actions relating to naturalresources and the environment.None of these bills were enacted.

Lawmakers in the 90th and 91stCongresses introduced more thanthirty bills to redirect federal actiontoward protection of environmentalquality. In both the House and Sen-ate, strong bipartisan leadershipsupported the declaration and

NEPA Review

Chapter II

NEPA ReviewJohn Wik, Chair, Lynton Caldwell, Ray Clark, Andree DuVarney, Jim McElfish, Aloysius Hogan, Rhey Solomon, Jody Sutton

implementation of principles andgoals to guide federal action on thenation’s environmental future. Dur-ing 1968 and 1969, members of boththe House and Senate integratedtheir concepts and approaches into abill sponsored by Senator Henry M.Jackson. Congress passed the bill asPublic Law 91-190; PresidentRichard M. Nixon signed it on Janu-ary 1, 1970.

The Act clearly stated Congres-sional intent:

“…To declare a National policywhich will encourage productive andenjoyable harmony between man andhis environment; to promote effortswhich will prevent or eliminate dam-age to the environment and biosphereand stimulate the health and welfareof man; to enrich the understandingof ecological systems and naturalresources important to the Nation;and to establish a Council on Envi-ronmental Quality.”1

Lawmakers realized that thebroad goals in Section 101 needed tobe supported and reinforced with an“action forcing mechanism” thatwould have a tangible impact onagency action. Section 102 containssuch a mechanism in the require-ment that every federal action “sig-nificantly affecting the quality of thehuman environment” be precededby the preparation of a “detailedstatement” assessing a range ofimpacts, alternatives, costs, and ben-efits. Presumably, the NEPA draftersdid not intend that this particularmechanism alone would accomplishthe comprehensive goals outlined inSection 101.

They designed the proceduralrequirement as a means to an end.The fact that most agencies havecome to view the procedural compo-nent as an end in itself can be tracedback, in part, to the lack of addition-

al binding mechanisms and direc-tives in the original NEPA legisla-tion. Some responsibility for theemphasis on procedure over vision,however, rests with each of the threebranches of the federal government,as the next section demonstrates.

3.0 NEPA IMPLEMENTATION AND INTERPRETATION

This section explores how, overthe past three decades, the execu-tive, legislative, and judicial branch-es of government have used theirpowers (or, in some instances,refrained from using these powers)to influence NEPA interpretation,ultimately contributing to the for-mation of the existing, primarilyprocedural, process.

3.1 Executive BranchThe Role of the President: Because the91st Congress believed environmen-tal protection represented a broadnational interest—no less thannational economy and security—Congress placed the newly createdCouncil on Environmental Quality(CEQ) in the Executive Office of thePresident (EOP). In 1937, FranklinRoosevelt’s Administration hadestablished the EOP at the recom-mendation of the President’s Com-mittee on Administrative Manage-ment.2

The Executive Office was intend-ed to advise and assist the Presidentin fulfillment of his managerialresponsibilities. Its staff members,unlike the White House staff, weresubject to Senate confirmation. Theagencies comprising the EOP havevaried somewhat over the years;however, all EOP agencies have hadbroad national responsibilities thattranscend the circumscribed mis-sions of cabinet level and indepen-dent agencies.


Title II of NEPA gave the CEQextensive implementation responsi-bilities. Many of these responsibili-ties have never been executed;some, including research, have beentransferred to the EnvironmentalProtection Agency (EPA). No Presi-dent has used the authorizationsgranted by NEPA to their full extent.Nor have the non-procedural man-dates, as clearly outlined in Section101 and Title II, been faithfully exe-cuted.

President Carter’s ExecutiveOrder (EO) requiring CEQ to pro-mulgate NEPA implementing regu-lations explicitly instructed CEQ to“issue regulations to Federal agen-cies for the implementation of theprocedural provisions of the Act.”3

The EO is silent regarding Section101 provisions. The absence of visi-ble presidential support for a faith-ful interpretation of NEPA’s intenthas served to marginalize the sub-stantive, visionary provisions of Sec-tion 101(b) and has contributed tothe overwhelmingly procedural con-struction of NEPA.

The Role of CEQ: Congress estab-lished an Executive Branch structurewithin NEPA that divided imple-mentation responsibilities for envi-ronmental policy between the CEQand all other federal agencies. Inaddition to vesting CEQ with itsnational environmental policy role,NEPA granted CEQ broad responsi-bilities to monitor the national envi-ronment and to consider the effectsof federal agencies’ actions on theenvironment.

Concurrently, NEPA authorizedCEQ to use the services of otheragencies to the fullest extent possi-ble. As a result, CEQ entered into anagreement with the EPA underwhich EPA assumed the initialresponsibility for reviewing EIS ade-quacy.4

While individual agencies imple-ment the NEPA process itself, CEQpromulgates the governing regula-tions. The current regulations,adopted in 1978 pursuant to Presi-dent Carter’s Executive Order,replaced prior NEPA guidelinesissued by the CEQ. As noted above,by their own terms and in compli-ance with the 1978 Executive Order,CEQ regulations implement onlyNEPA Section 102(2).5

The regulations’ purpose is “…totell Federal agencies what they mustdo to comply with the proceduresand achieve the goals of the Act.”6

In addition to rule-making, CEQ isalso responsible for reviewing pro-posals referred to it by federal agen-cies, when these proposals havebeen declared environmentallyunsatisfactory.7

CEQ regulations define the proce-dures agencies must follow to con-duct an analysis of alternatives for agiven project. Regulations alsodirect agencies to consider the envi-ronmental impacts of a proposedaction. They indicate when an Envi-ronmental Impact Statement (EIS) isrequired and provide for the con-duct of an Environmental Assess-ment (EA) when an agency is uncer-tain about the significance ofpotential environmental impactwhich may result from an agencyaction or decision.

An EA leads to one of two out-comes: the preparation of a full EISor a “Finding of No SignificantImpact” (FONSI). At the close of theEIS process, the agency prepares a“Record of Decision” (ROD) to doc-ument the decision. CEQ regulationsalso establish criteria for instanceswhen an agency may “categoricallyexclude” certain types of routineactions from NEPA review becausethey do not—individually or cumu-latively—have a significant effect onthe human environment.

NEPA Review 9

The absence

of visible

presidential

support for

a faithful

interpretation

of NEPA’s

intent has

served to

marginalize

the substantive,

visionary

provisions of

Section 101(b)

and has

contributed to

the overwhelm-

ingly procedural

construction of

NEPA.

Regulations establish proceduresfor involving federal, state, and localagencies “early in the NEPAprocess” and stipulate that agenciesmake diligent efforts to involve thepublic in NEPA implementation.8Public “scoping,” which occurswhenever an agency decides to pre-pare an EIS, requires an “…earlyand open process for determiningthe scope of issues related to a pro-posed action.”9 Scoping mustinvolve federal, state and local agen-cies, Indian tribes and other interest-ed persons. Beyond the scopingprocess, the regulations set forthprocesses for public review andcomment on the alternatives in thedraft EIS.

CEQ regulations do not requiremulti-agency cooperation or publicinvolvement in the actual prepara-tion of EAs. EAs are also exemptfrom requirements for public scop-ing and public comment on draftdecision documents. CEQ regula-tions are significantly less detailedfor EAs altogether, as EAs wereintended to be concise documentsthat “briefly provide sufficient evi-dence and analysis for determiningwhether to prepare an environmen-tal impact statement or a finding ofno significant impact.”10

Outside the basic requirements,all federal agencies adopt their ownprocedures consistent with CEQ reg-ulations. Regulations require federalagencies to use an interdisciplinary,science-based approach to analyzethe environmental effects of theirproposals, in consultation with otherfederal agencies having jurisdictionor expertise with respect to anypotential environmental impact.

3.2 Legislative Branch NEPA passage prompted several

early lawsuits challenging the Act;as a result, legislators introducedlegislation to repeal, weaken or limit

the application of NEPA. None ofthe proposed bills passed. On April3, 1970, the Environmental QualityImprovement Act (EQIA) createdthe Office of Environmental Quality(OEQ) to provide CEQ staff.

Congressional oversight (includ-ing jurisdictional responsibilitiesand appropriations levels) for CEQand OEQ has been relatively incon-sistent over the life of the Act. In theSenate, oversight jurisdiction shiftedfrom the Senate Committee on theInterior to the present Committee onEnvironment and Public Works; inthe House, the House Committee onResources took on the oversight roleformerly filled by the House of Rep-resentatives Committee on MerchantMarine and Fisheries.

CEQ legislative oversight is a crit-ical and complex task, due to thehuge range of issues in which CEQis involved. Funding for CEQ andOEQ hovers at a relatively low andunstable level. While CEQ appropri-ations remain constant at an autho-rized $1 million per year, OEQappropriations authorizationexpired over a decade ago; recentOEQ appropriations have varied inamount. For 1999, CEQ and OEQwere cumulatively funded at $2.75million. The authorized number ofstaff has also fluctuated over theyears, ranging from 70 full-timeemployees to virtually zero after theClinton Administration’s first termproposal to abolish the agency.11

Congressional action has influ-enced NEPA’s implementation andeffectiveness through several othervehicles:

1) With some projects, Congress hasstepped in to direct the outcome of aNEPA process by withholding fundsor implementing other restrictivemechanisms.


2) Congressional action has been usedto sidetrack the NEPA process by leg-islating new “solutions” or requiringagencies to adopt specific EIS alter-natives. (e.g., Crown Butte Mine,Herger-Feinstein Quincy LibraryGroup Act).

3) Legislation with a primary non-NEPA focus has contained provisionswith direct relevance for NEPAimplementation efforts.

These actions have created, on thewhole, an unpredictable and unsta-ble environment for agenciesengaged in NEPA implementation.

3.3 Judicial BranchSince 1969, the courts have built

up a body of highly developed caselaw surrounding specific NEPA pro-visions.12 Much of this case lawemerged from the courts prior toCEQ’s issuance of the 1978 regula-tions. As a result, the current regula-tions reflect CEQ responses to judi-cial interpretations of NEPA in itsearliest years, as well as PresidentCarter’s Executive Order emphasison implementing the Section 102procedural requirements of NEPA,rather than the national goals setforth in Section 101.

Cumulative court decisions haveplayed a leading role in transform-ing NEPA into a procedural law pri-marily intended to mandate thepreparation of environmentalimpact statements. The 1978 U.S.Supreme Court decision in the Ver-mont Yankee Nuclear Power Corpo-ration v. NRDC case (435 U.S. 519)established the judicial precedent forthis interpretation, which focuses onthe procedural requirements of Sec-tions 102(2)(C), (D), and (E)—sec-tions which require agencies to “pre-pare a detailed statement” and“consider alternatives.”13

According to judicial require-

ments, a preparing agency must“take a hard look” at the impacts ofits actions, and not be “arbitrary andcapricious” in its deliberations.Since 1978, the courts have declinedto rule substantively on any otheraspects of NEPA and have looked toCEQ as the primary interpreter ofthe statute.

The two most frequent com-plaints by NEPA litigants are (1) thatan agency failed to prepare an EISand (2) that EIS analysis was inade-quate (see Figure II-1). Recently,many litigants have based theirarguments on the assertion thatagencies should have prepared a fullEIS, instead of a simpler EA.14 Judi-cial review has found individualagencies guilty of ignoring a rangeof CEQ regulations, including therequirements to “assess all reason-able alternatives” and consider the“full range of impacts.”15

The courts have generallyenforced EIS public participationrequirements, though improperpublic scoping has been establishedas an insufficient basis for judicialreview when an agency can docu-ment the opportunity for meaning-ful public participation in Draft EIScomment. Lower courts have occa-sionally enforced precise Section 102provisions, including 102(2)(E),which stipulates consideration ofalternatives even where an EIS isnot required. And while the courtshave not enforced Section 102(1),

NEPA Review 11

The two most

frequent

complaints by

NEPA litigants

are (1) that an

agency failed to

prepare an EIS

and (2) that EIS

analysis was

inadequate.

Figure II-1

Causes of Action Filed Under NEPA in 1994

Inadequate Environmental Impact Statement.........................40No Environmental Impact Statement .......................................31Inadequate Environmental Assessment ...................................28No Environmental Assessment..................................................13No Supplemental Environmental Impact Statement................7Other ..............................................................................................10

Total .............................................................................................129

requiring that the policies and regu-lations and laws be administrated“in accordance with” the six sub-stantive purposes of NEPA outlinedin Section 101, they have not fore-closed the potential creation ofadministrative processes to securesuch implementation.16

3.4 Agency Implementation of NEPA

Working within the context of theestablished regulatory frameworkand the substantial body of relatedcase law, many federal agencieshave come to view their NEPAobligation to be confined to the Sec-tion 102 requirement to prepare a“detailed statement.” It is importantto note that this requirement hashad meaningful positive outcomes.

In many cases it has triggered sig-nificant improvements in environ-mental protection, while providing amechanism to hold agenciesaccountable (through public processand litigation) for their actions andthe related environmental impacts.It remains a key tool for safeguard-ing the nation’s natural resourcesand public health.

Many hoped that NEPA would domore. Despite the intentions of the91st Congress, Section 101’s vision-ary goals for the protection of thenation’s environment are neitherintegrated into nor integral to mostagency decision-making processes.

Agency decision making underNEPA has generally been incremen-tal: each specific action is consideredindependently, and the context inwhich an action occurs is often notclearly understood. For example,multiple agencies often conductindependent NEPA reviews withinthe same ecosystem.

As a result, issues that mayrequire consideration of connectedactions or cumulative effects (suchas the migration patterns of large

mammals) often are not addressed.Additionally, NEPA is not triggereduntil an agency advocates a specificproposal. Strategies for solving larg-er interagency or intergovernmentalissues are seldom subjected to envi-ronmental analysis and public dis-closure requirements.

In the past, agencies have beenreluctant to engage in outside dia-logue (either with the public or withother state, local, or federal agen-cies) before an action becomes a for-mal proposal, effectively limitingopportunities for early public andfederal agency collaboration. Agen-cies do not commonly share infor-mation about their NEPA projectswith other federal agencies and donot seek opportunities for agencycollaboration on multiple relatedactions within a common geographi-cal area. Redundant or conflictingactions can result.

Because of perceived litigationrisks, agencies have been reluctantto experiment with new processesfor collaboration and analysis. And,while CEQ regulations are substan-tially devoted to spelling out publicparticipation and other proceduresand requirements for EISs, in prac-tice federal agencies have come torely heavily on EAs, which do notrequire extensive scoping or publicparticipation and can quickly lead toa FONSI. CEQ estimates that federalagencies prepare approximately50,000 EAs each year; in contrast,agencies prepare several hundredfull EISs.17

While the preponderance of EAsdoes not necessarily reveal a patternof neglect on the part of the agen-cies, it does suggest that some pro-jects may be undergoing insufficientanalysis and public scrutiny. Itseems likely that many agencieshave come to view NEPA proce-dures (particularly public participa-tion requirements) as procedural


hurdles to be overcome, rather thanas strategic opportunities toimprove their decision making.

Finally, agencies have paid littleattention to CEQ regulations stating,“agencies may provide for monitor-ing to assure that their decisions arecarried out, and should do so inimportant cases.”18 During NEPAprocesses, it is often apparent thatfollow-up monitoring or analysiswill be required to assure the deci-sion will not adversely impact theenvironment.

Even when the requirements forthis monitoring are included as apart of the Record of Decision, agen-cies often do not have the resourcesor the direction to continue monitor-ing and provide results to the par-ties affected by the decision. TheForest Service has taken the lead inchanging this state of affairs byadopting “adaptive management”approaches that involve the publicin monitoring and information-gath-ering at all project stages.

4.0 DRIVERS OF CHANGESeveral evolving trends are affect-

ing the way federal agencies viewNEPA compliance. In response,

agencies are slowly beginning torevise traditional procedures andexplore new approaches. Many ofthese “drivers of change” are long-standing; others are relatively newdevelopments only beginning toregister as agents of change.

4.1 LitigationOnce the courts develop NEPA

case law, agencies modify theirNEPA processes, if needed, to com-ply with court findings on appropri-ate procedures.19 In several cases, lit-igation has spurred criticalimprovements in agency decisionmaking processes, with a resultingimprovement in environmentalquality.20 However, a large body ofcase law reflects the courts’ reluc-tance to second-guess agency deci-sions (for example, Vermont Yankeev. NRDC).

The 30-year NEPA implementa-tion history has taught agenciesminimally acceptable proceduralstandards.21 Agency legal advisorshave become arbiters who deter-mine how much risk the agencymay take within legally defensibleparameters. Since litigation is costlyand time consuming, there has been

NEPA Review 13

Members ofNEPA ReviewWork Group writing sections of their chapter.

Several evolving

trends are

affecting the way

federal agencies

view NEPA

compliance.

In response,

agencies

are slowly

beginning to

revise traditional

procedures and

explore new

approaches.

a general agency preference for cre-ating legally acceptable documentsrather than engaging in experimen-tal collaboration efforts, larger scaleanalysis, or proactive resolution ofconcerns.22

4.2 Shrinking ResourcesRecent Presidential administra-

tions have cut agency budgets andsignificantly reduced the federalworkforce. At the same time, tech-nology advances are providing thepublic with more information abouthow federal decisions affect com-plex local, regional, and nationalecosystems. The cumulative effectsof federal actions are also becomingmore apparent, as research revealshow multiple, separate agency deci-sions compound impacts on region-al environments.23 Evaluation of thisadditional information requiresdetailed analysis by an already over-burdened staff.

Although staff resources areincreasingly limited, recently federalagencies have been presented withadditional requirements to increaseand improve staff performance. Forexample, the Government Perfor-mance and Results Act of 1993(GPRA) requires federal agencies tobecome more creative in findingways “to do more with less.” CEQ isdirecting interagency task forces ofenvironmental regulatory agenciesto streamline environmental reviewsand to ensure that reviews are com-pleted simultaneous with the NEPAprocess.

Several workshop participantssuggested that one result of thisemphasis on economy and efficiencyhas been an increase in partnershipsand collaborations between federalagencies and state, tribal and localgovernments and non-governmentalorganizations.24 While these partner-ships and collaborations can requiremore resources, particularly during

the initial stages, some agencies seethem as an opportunity to morefully integrate legislated mandates,such as GPRA and NEPA, into thedecision-making process.

4.3 Increased CommunicationTechnologies

Yet another driver affecting NEPAimplementation is the increasingavailability of data about resourceand habitat conditions. New satelliteand communication technology, forexample, can now provide resourcemanagement agencies with “real-time data” that reflects current con-ditions on the ground (although crit-ical gaps still exist foron-the-ground data that satellitescan’t provide).

In practical terms, the increasingvolume of information means thatagencies must process informationmore quickly to avoid repeatedanalysis of new information. As databecome more sophisticated andmore accessible, agencies risk beingcaught in an endless analysis loop.There is also a danger that agenciesworking with new information oncurrent conditions may fail toaccount for the probability ofchange in environmental conditionsover time.

In a related development, com-munications advances (in satellitetechnology, the internet, fax, andteleconferencing) have made instantinformation sharing and feedback areality. Such opportunities offerchallenges and cautions. New chal-lenges to environmental analysisarise when agencies and the publicmust cope with information over-load and seek assurance as to thequality of available information.

Although new technologies areproving to be valuable tools for cost-effective information transfer, totalreliance on these tools could createinformation-poor segments of the


public, particularly among individu-als without access to new technolo-gies.

4.4 Implications of PopulationGrowth and Relocation

Regionally and nationally, recentpopulation shifts have placedgreater demands on environmentalresources and required the resolu-tion of multiple competing claims toparticular resources and areas. Someworkshop participants observedthat regional population growth(which often requires significantfederal infrastructure development)is resulting in increased NEPA activ-ity, especially in the West.

The traditional project-by-projectNEPA approach does not easilyaccommodate a sharp increase inNEPA action (and thus an increasein the number of EAs and EISs) dueto population pressures. This situa-tion places an additional strain onthe fixed or shrinking financial andstaff resources available to the agen-cies responsible for compliance. TitleII of NEPA, which calls for CEQtracking of regional trends, wasintended, in part, to mitigate theimpact of growth. However, CEQlacks the resources needed to carryout these long term monitoringrequirements.

4.5 Congressional Mandatesand Response to Constituents

Many Congressional mandateshave specific NEPA implications.Recent legislation has typicallyfocused on limiting the applicabilityof NEPA on specific federal projects.The Nuclear Waste Policy Act,which prohibits DOE from consider-ing alternatives to the Yucca Moun-tain Site for disposal of high levelnuclear waste, is an example of Con-gressional influence directly affect-ing the NEPA process.

These legislative mandates serveas drivers in changing the wayaffected agencies interpret andimplement NEPA, and may predis-pose agencies to consider collabora-tive processes if they believe theseprocesses could lead to more bal-anced, viable decisions.

Additionally, constituents con-cerned with the use of nationalresources (and the impact of federalagency decisions) encourage mem-bers of Congress to advancephilosophies across a spectrum ofpreservation, conservation, or devel-opment interests. Preservation-ori-ented groups may request increasedstudy of the effects of a proposedagency activity.

Others may push to alter theNEPA process to achieve cost-effi-ciency, time-efficiency, and outcomecertainty, thus seeking to balance thebenefits to nature against the rela-tive costs to industry and govern-ment. As a driver of change, Con-gressional response to complex andoften conflicting philosophies mayresult in legislative initiatives orenvironmental policy modification.

4.6 GlobalizationGlobalization of communications

and commerce, which proceeds withunprecedented scope and rapidity,profoundly affects national andworld policies—particularly policiesaddressing environmental impactsand issues.

NEPA speaks to the relevance ofinternational issues and activities inSection 102(2)(F), which requires allfederal agencies to “recognize theworldwide and long-range characterof environmental problems,” and toengage in international cooperation“in anticipating and preventing adecline in the quality of” the worldenvironment. However, courts havegenerally not required an EA/EISanalysis of U.S. actions abroad.

NEPA Review 15

Legislative

mandates serve

as drivers in

changing the

way affected

agencies

interpret and

implement

NEPA, and

may predispose

agencies to

consider

collaborative

processes if they

believe these

processes could

lead to more

balanced, viable

decisions.

In 1979, President Carter issuedExecutive Order No. 12114 (basedon NEPA) to require environmentalimpact assessments for certain typesof international actions. However,the Executive Order did not man-date compliance with NEPA andCEQ public participation regula-tions. Executive Order 12114 alsofailed to provide a basis for judicialreview of the actions or assessments.

One case brought under NEPAitself, however, concerned the spe-cial case of Antarctica, an areawhere there is no direct issue of con-flicting sovereignty.25 The court heldthat NEPA does apply outside theU.S. when final decisions are madein the U.S.

At 1972 and 1992 United Nationsconferences, nations adopted com-prehensive, transnational environ-mental policy agendas. Many inter-national treaties to which the UnitedStates is a party have, in effect,become national law.26 Establish-ment of the World Trade Organiza-tion (WTO) and the North AmericanFree Trade Agreement (NAFTA)continues to have significant impli-cations for United States environ-mental policy administration of(e.g., the tuna-dolphin issue).

Twenty-five countries, acknowl-edging the transboundary context ofenvironmental issues, signed theConvention on EnvironmentalImpact Assessment of 1991. Euro-pean nations are now seriously con-sidering the adoption of a similaragreement. Alongside this interna-tional effort, NEPA’s purposeimplies U.S. support for internation-al cooperative efforts “to prevent oreliminate damage to the environ-ment and biosphere.” This provisionwill surely continue to engagefuture national and internationaldialogue, especially as the Americanpublic pushes for more access todecision-making processes.

4.7 Continuing Advances in Science

Increasingly, ecosystem sciencepresents compelling evidence thatNEPA analysis must look beyonddirect, on-site impacts of an action.Regional, and sometimes national,impacts must also be considered inthe NEPA process. Agency decisionsneed to take into account how com-plex regional ecological relation-ships register cumulative impactsfrom multiple projects.

For example, the reintroduction ofendangered species to public landspresented agencies with a strongreminder that wildlife species (e.g.,grizzly bears and wolves) do notrecognize arbitrary managementand analysis boundaries. Efforts toaddress water quality issues havegenerated similar conclusions.Agencies and others recognize thatwater quality and quantity issuescan not be resolved without broad-ening the impact analysis scope toinclude entire watersheds. In theNEPA context, this emerging aware-ness encourages agencies to extendtheir analysis beyond EA and EISproject boundaries.

Another factor supporting agencyuse of a broader unit of analysis isthe recent recognition of the criticallink between federal lands and adja-cent private lands. Actions taken onfederal lands often impact neighbor-ing private lands; likewise, privatelandowners’ management decisionsmay significantly impact nearbyfederal lands.

Efforts underway in the ColumbiaRiver Basin, the Great Lakes, andthe Chesapeake Bay offer examplesof how federal, state, local and tribalagencies have increased collabora-tion and generated sound policydecisions by working outside theirnormal boundaries to solve regionalenvironmental problems. NEPA Sec-tion 101(a) explicitly supports this


cooperation among federal agenciesand “…state and local governments,and other concerned public and pri-vate organizations….”

4.8 Devolution of DecisionMaking to State and Local Levels

In the 1980s, state and local gov-ernments began to take on authorityand decision-making roles formerlyvested in the federal government.This devolution has led to greaterlocal control in agency decisionsrelated to local projects.27 However,this shift in control may be associat-ed with the loss of a coherentregional or national perspective.

In a classic double bind, projectswhich provide economic benefits toa local area (through increasedresource extraction activity) oftennegatively impact the regional ornational environment (with effectsincluding loss of habitat for migrat-ing species, downstream water loss,and air pollution issues). Converse-ly, regional or national environmen-tal protection initiatives may limitopportunities and options at a stateand local level.

Recently, some discussion hasfocused on whether the federal gov-ernment should grant state and localgovernments greater control overfederal land management deci-sions.28 While proponents believethis approach would provide localgovernments greater control overthe use of local resources, others fearthat such a situation would limitregional and national input intoanalysis of the costs and benefits ofa given decision. Moreover, somefeel local governments may be moresusceptible to influence by naturalresource development interestspromising community economicbenefits.

4.9 Public Desire for IncreasedParticipation

Over the past decade, the public’sdesire to influence decision out-comes at all levels of governmenthas dramatically increased. WhileCEQ regulations have alwaysrequired agencies to solicit commentfrom local and national interests, thelevel of response from both sectorshas risen significantly in recentyears.29

It is difficult to define why thisspike in public interest and partici-pation has occurred; possible expla-nations include public mistrust ofgovernment decisions, the desire toprotect privately held resources, andheightened competition amongresource-use interests. Many mem-bers of today’s public are wellinformed, highly educated andactively engaged in environmentalissues.30

Recent experience illustrates howagencies are encountering increasingpressure to develop approacheswhich meet the public’s desire to beinvolved in decision making. At allsteps in the NEPA process—throughpreliminary scoping, scoping, devel-opment of alternatives, and effectsanalysis—agencies are being askedto develop interactive strategies.Many people are also proposingpublic involvement in post-decisionactivities, including implementationand monitoring.

In response to public interest andpressure, federal agencies have ded-icated greater resources toward pub-lic involvement in the NEPAprocess. In some cases, collaborativeapproaches are creating new meth-ods for involving people withdiverse viewpoints and addressingtheir concerns surrounding naturalresource decision making.

NEPA Review 17

Agencies are

encountering

increasing

pressure to

develop

approaches

which meet

the public’s

desire to be

involved in

decision making.

At all steps

in the NEPA

process—

through

preliminary

scoping,

scoping, devel-

opment of

alternatives, and

effects analysis

—agencies are

being asked

to develop

interactive

strategies.

5.0 RECENT EFFORTS TO REENERGIZE THE NEPAPROCESS

Many would agree that the imple-mentation process outlined in NEPASection 102 has failed to substantive-ly meet the goals of the Act.Although Congress, federal agen-cies, states, the public and some 80foreign governments have recog-nized and embraced the basic tenetsof environmental protection set outin NEPA, it is often difficult to createprocesses that turn intention intoaction. In recent years, severalattempts have been made to assessthe NEPA process; these assessmentefforts have generated a number ofsuggestions for improving theprocess’ effectiveness. In addition,specific legislative actions andagency initiatives have attempted torefine detailed aspects of the Section102 procedures.

5.1 Recent LegislationAlthough the last legislative

change to NEPA occurred in 1975, in1998 the proliferation of NEPA dis-putes over the use of environmentalresources prompted Congress toenact legislation authorizing theU.S. Institute for EnvironmentalConflict Resolution, associated withthe Udall Center in Arizona, to helpmoderate NEPA disputes.31 In addi-tion, the 1998 Transportation EquityAct for the 21st Century (TEA-21)specifies that the NEPA process bestreamlined by conducting all envi-ronmental reviews for a project con-currently, where practicable, withinset time periods.

5.2 CEQ Effectiveness StudyIn 1995, CEQ undertook a study

and evaluation of NEPA to deter-mine ways the statute could be bet-ter implemented. The studyassessed the NEPA process in light

of its cost effectiveness, its overallefficiency, and its ability to meet theoriginal intent of the statute. Subse-quently, the study catalyzed manyagencies to initiate revision of theirNEPA procedures. It also launched aCEQ-led NEPA reinvention effort. Inthe 1997 study report, the CEQ setout the goals for the reinventioneffort (see Figure II-2).32

5.3 Increased Federal AgencyCooperation and Collaboration

Federal agencies involved in theNEPA process have, until recently,demonstrated minimal cooperationwith other federal agencies. With thecurrent emphasis on downsizingand limited budgets, agencies arerecognizing the value of sharingresources and data. Interagencycooperation in the preparation ofEAs and EISs has increased signifi-cantly. To collaborate successfully onNEPA efforts, agencies must agree


Figure II-2

Recommendations from CEQ’s1997 NEPA EffectivenessStudy

• Find ways to better incorporateNEPA’s goals into internal plan-ning processes.

• Take into account the views of sur-rounding communities and otherinterested members of the public.

• Develop collaborative processeswith other federal agencies to shareinformation and integrate planningresponsibilities.

• Focus knowledge and values from avariety of sources on a specificplace.

• Incorporate science-based and flexi-ble management approaches.

to work together early in the NEPAprocess and continue this relation-ship throughout the life of a project.

These collaborative efforts arebeginning to extend from federalagencies to state, local and tribalgovernments. Agency collaborationswith state, local, and tribal entitiespresent an entirely new set of ques-tions that do not arise in exclusivelyinteragency collaborations. Ulti-mately, it appears that these newcollaborative approaches could leadto more efficient NEPA processes.

They may also demonstrate credi-bility with interested public partici-pants, who look to the agencies toprovide leadership and a unifiedapproach to NEPA. However, intera-gency (and inter-governmental) col-laboration in the NEPA process pre-sents unique challenges. Forexample, workshop participantsobserved, in some instances collabo-rative efforts may complicate the fix-ing of accountability for governmentaction.

5.4 Broadening the Scope of Environmental Decision Making

Recent advances in science haveilluminated a number of environ-mental issues that require broadergeographical and temporal scales ofanalysis. Because of improved dataon population dynamics, federalprojects to restore spotted owl popu-lations in the Pacific Northwest andprotect salmon populations in theColumbia River Basin are both nowviewed as regional, rather thanlocal, projects.

Broader analyses have the poten-tial to more effectively addressstrategic environmental planningand decision-making at the regionallevel. They also, however, raisequestions about the depth of analy-sis needed to support sound deci-sions and the extent to which feder-

al, state, and local agencies mustcoordinate, cooperate and collabo-rate to reach successful outcomes.

5.5 Using NEPA as a Grant of Authority

NEPA contains numerous execu-tive branch mandates that are rarelyapplied. Recently President Clintonused Section 101(b)(4) as his authori-ty to develop the American HeritageRivers Initiative. This sectionrequires the federal government to“…preserve important historic, cul-tural, and natural aspects of ourNational heritage, and maintain,wherever possible, an environmentwhich supports diversity, and avariety of individual choice.”

Additional opportunity to useNEPA as a grant of authority forexecutive branch action lies inNEPA Section 105, which makes thelaw’s goal supplemental to the lawsof every federal agency. Many agen-cies are only beginning to recognizetheir responsibilities to the environ-ment, the economy, the public, andfuture generations.

5.6 Using NEPA as a Toolfor Integrating Other

RequirementsDecreased federal funding, an

increasing need for greater depthand breadth of analysis, and anincreased demand for coordinationand collaboration have caused agen-cies to rely on NEPA as a process forintegrating the decision making,permitting, and approvals processamong various federal and stateagencies. No other statute hasserved this vital function. Addition-ally, because CEQ regulations con-tain numerous, specific, integrationrequirements (which are often notfollowed), greater adherence to CEQregulations may eventually lead tobetter decisions.33

NEPA Review 19

5.7 Agency Innovation and thePublic Involvement Process

Some agencies are responding tothe call to “reinvent government” bycreating innovative systems andstrategies with their institutionalstructure. In one such example, in1996 the U.S. Forest Service createdan “Enterprise Team” to analyzepublic comment received during thevarious stages of the NEPA process.

This team now contracts with fed-eral agencies at all levels to providesummary documents of public com-ment, public involvement processcoordination, project-specific web-sites, and consultation on publicinvolvement processes. Agenciesusing the team’s services havereported a reduction in costs,improved agency responsiveness (toFOIA requests and appeals), and adecrease in the amount of time nec-essary to complete the NEPAprocess effectively.34

6.0 OBSERVATIONS A review of NEPA’s implementa-

tion history leads to several observa-tions and conclusions. Clearly,NEPA has not been fully implement-ed in accordance with the intent ofits drafters. The courts, CEQ, federalagencies, the legislative branch, andthe executive branch have failed tolink NEPA Sections 101 and 102together to implement a truly com-prehensive environmental policy forthe nation.35 Certain “drivers ofchange” are forcing an evolution inthe way both the federal govern-ment and the American public viewNEPA. These developments are set-ting the stage for efforts to revitalizethe NEPA process with renewedattention to Section 101 goals.

ENDNOTES1 NEPA, Purpose, Section 2.2 The Brownlow Committee of 1937.3 Section 2(g) of EO 11514, as amended by

EO 11991. Emphasis added.4 EPA responsibility for EIS review stems

from a provision in Section 309 Clean AirAct (42 USC 7609). See Appendix A forrelevant Section 309 text.

5 40 CFR 1500-1508.6 40 CFR 1500.1.7 40 CFR 1504.8 40 CFR 1501.6 and 40 CFR 1506.6(a).9 40 CFR 1501.10 40 CFR 1508.9(a).11 In 1993, Clinton bypassed the CEQ and

created the Office on Environmental Poli-cy (OEP), appointing Kathleen McGintyas chair. When he subsequently failed inhis attempt to abolish CEQ, he mergedthe OEP and the CEQ. McGinty becamethe CEQ Chair, and proceeded to revital-ize the department. This effort culminat-ed in the NEPA effectiveness studywhich, ultimately, led to the work ofCRMW and IENR and this proceedingsdocument.

12 Relevant cases include NRDC v. Morton(458 F.2d 827; D.C. Cir. 1972) CalvertCliffs Coordinating Committee v. UnitedStates Atomic Energy Commission (449F.2d 1109, D.C. Cir 1971) , Vermont Yan-kee v. NRDC (435 U.S. 519; 1978) andRobertson v. Methow Valley CitizensCouncil (490 U.S. 332; 1988). See Cohenand Miller, 1997; Sheldon, 1990; and Wei-land, 1997 for more details.

13 See Caldwell, 1998, page 32, “Critics ofNEPA have found its substantive provi-sions nonjustifiable, and by implicationnot positive law. The courts haverefrained generally from overturningadministrative decisions that could beinterpreted as incompatible with the sub-stantive portions of NEPA.”

14 France, 1990.15 Murchison, 1984.16 See Leucke, 1993, for a review of NEPA

litigation history and the evolution of theagency planning process.

17 CEQ, 1997b.18 40 CFR 1505.3.19 Clark, 1997.20 Sheldon, 1990.21 Twelker, 1990.


22 Current statistical information on NEPAlitigation (including plaintiffs, causes ofaction, injunctions, and agency distribu-tion of cases) is available in CEQ annualreports at www.whitehouse.gov/CEQ/.

23 CEQ, 1997a. 24 See CEQ, 1997a, page 22, for more infor-

mation on increased collaboration result-ing from efficiency initiatives.

25 Environmental Defense Fund v. Massey,986F. 2d 528 D.C. Cir. 1993.

26 Susskind, 1994.27 For example, Representative Barbara

Cubin (R-WY) introduced a bill, currentlyin committee, entitled “The Federal Oiland Gas Lease Management Improve-ment Act of 1999” (H.R. 1985) that wouldallow a state’s oil and gas conservationcommission to take over post-leaseissuance duties from the BLM on federalleases within the state.

28 Kemmis, 1998; Williams, 1998.29 Michael Schlafmann, of the USFS Content

Analysis Enterprise Team, observes that,although it is difficult to draw conclu-sions about comparative response ratesfor widely varied projects, individual fed-eral land management projects appear tobe generating more public comment thanthey have in the past. For example, over500,000 separate comments were receivedduring the scoping phase of the recentForest Service roadless initiative.

30 National Science Foundation studies sug-gest a negative factor associated withincreased public participation, in thatthere is a deficiency among the Americanpublic as to their ability to understandand interpret scientific evidence.

31 The Environmental Policy and ConflictResolution Act of 1998 (Public Law 105-156).

32 CEQ, 1997a.33 See, e.g., 40 CFR 1500.2(c); 1500.4(k);

1501.2; 1505.25.34 More information about this enterprise

team is available from program coordina-tor Jody Sutton at (801) 534-1942.

35 Clark, 1997; Weiland, 1997; Caldwell,1998.

NEPA Review 21


Notes

23

Collaborations

can be under-

stood as

“coalitions of the

unalike.”

These coalitions

emphasize

stakeholder

inclusiveness,

volunteerism,

flexibility,

and direct

communication.

1.0 INTRODUCTIONCurrent attempts to examine the

role of public participation in envi-ronmental decision-making process-es are best considered in a historicalcontext. This chapter begins withworking definitions of key terms,and goes on to orient the readerwith a partial history of public deci-sion-making trends over the pastcentury. Tables and text provide adescription of how the NEPAprocess traditionally incorporatespublic participation.

The chapter then summarizesexisting models for incorporatingcollaboration and consensus build-ing into the NEPA decision-makingprocess and provides brief casestudies to illustrate each model.

2.0 DEFINITION OF TERMS“Collaboration,” “consensus,”

and even “public involvement” canbe complicated terms to define. Forthe purposes of this discussion, weoffer working definitions that reflecta general agreement and under-standing among workshop partici-pants. Within the discussion, theseterms are used to support and sup-plement each other; collaboration,consensus, and public involvementare often combined in complexforms to create innovativeapproaches.

Collaboration: Collaboration, as itrelates to public decision-makingprocesses, involves face-to-faceproblem solving among diversestakeholders. Don Snow, of theNorthern Lights Institute in Mis-soula, Montana, suggests that col-laborations can be understood as“coalitions of the unalike.”1 Thesecoalitions emphasize stakeholderinclusiveness, volunteerism, flexibil-ity, and direct communication.

Collaborations take on a varietyof forms and seek diverse outcomes,depending on the composition ofthe group and the task at hand. Insome cases, a lead agency asks otherparties to join in its decision-makingprocess in a way that exceeds mini-mal compliance with NEPA statuto-ry requirements and implementingregulations. Participating partiesmay include tribal, state, or localgovernments; other federal agencies;and business, industry, environmen-tal, and community interests.

In other cases, an existing collabo-rative group approaches the leadagency with a proposal for jointwork. Depending on the situation,the same players may switch fromleading to supporting roles in theprocess. Although many collabora-tions seek to involve the public in adecision-making capacity, several ofthe examples in this chapter illus-

Existing Models

Chapter III

Existing Models forImproving Public Involve-ment and Collaborationunder NEPANedra Chandler, ChairGail Bingham, Hank Fischer, Doug Kenney, Greg Schildwachter, Charlie Sperry, SarahVan de Wetering

trate inter-agency collaborativemodels that do not expand publicinvolvement roles.

Consensus: According to MatthewMcKinney of the Montana Consen-sus Council, consensus building isbest understood as a particular formof collaborative problem solving.However, whereas collaborativeprocesses may or may not bedesigned to reach agreement orresolve a dispute, consensusprocesses are designed to seekagreement among all the peopleinterested in or affected by a partic-ular issue or situation.

Consensus processes seek unani-mous agreement, in contrast toprocesses where a decision isreached through voting or is madeunilaterally by a government agencyor judicial body. McKinney alsoasserts that “…it is important toacknowledge the difference betweena consensus process and a consen-sus outcome. It is possible, and quitecommon, to convene a group peoplewith diverse viewpoints to seek con-sensus and not arrive at a consensusoutcome. In other words…consen-sus processes do not always resultin consensus outcomes.”2

Public Involvement: Public involve-ment refers to any process designedto (1) inform and educate the public;and (2) seek input and advice fromthe public. Agencies define publicinvolvement as any activity thatsolicits opinion from individuals orinterests outside the agency bureau-cracy. Under this definition, “thepublic” is a broad term encompass-ing a multiplicity of interests: localcitizens, industry, advocacy groups,chambers of commerce, and anyother non-agency voice.

Traditionally, public involvementin agency decision making processeshas taken place through two vehi-

cles: public hearings and publiccomment letters. These traditionalapproaches are rapidly giving wayto, or at least being supplementedby, new models, as we discuss indetail in the following chapters. It isimportant to note that, while aneffort to improve public involve-ment opportunities often assumessome element of increased collabo-ration, collaborative approaches(especially interagency collabora-tions) do not necessarily expandpublic involvement opportunities.

3.0 HISTORICAL TRENDS INGOVERNANCE AND DECISION

MAKINGOver the past century, the U.S.

has experienced a series of changesin democratic theory and practice.To some extent, these changes reflectshifting power relationships amonggovernment, private interests, andcitizens. At several stages in the pastone hundred years, collaborativeand grassroots democratic decision-making efforts have been valued,and, to varying degrees, applied.

At other times, inclusive, collabo-rative approaches have been dis-credited and superseded.3 Onlyrecently have collaborativeapproaches to natural resource andenvironmental management beenwidely considered and tested. Con-temporary advocates herald collabo-rative decision-making approachesas the embodiment of “democratic”decision making.

The following section brieflyexamines the 20th century history offederalism and collaborative deci-sion-making processes.4 Discussiontracks various prevailing sentimentsabout the nature of good public pol-icy making and focuses on twoissues with particular relevance toNEPA decision-making processes:the merits of technocratic versus cit-izen decision makers; and, the dif-


Only recently

have collabora-

tive approaches

to natural

resource and

environmental

management

been widely

considered and

tested.

Contemporary

advocates herald

collaborative

decision-making

approaches as

the embodiment

of “democratic”

decision making.

ference between regulatory and col-laborative management approaches.We use four eras to define the evolu-tion of practice and ideas: (1) TheProgressive Era, (2) The SecondRepublic, (3) The EnvironmentalMovement, and (4) The Current Sit-uation.

3.1 The Progressive Era and the "Second Republic."

The Progressive Era (circa 1890-1920) generated a key concept thathas shaped a century of policy andaction: a technical elite, working pri-marily with federal bureaucracies,should be responsible for the majori-ty of natural resource managementdecisions. Lawmakers of this eraestablished the Forest Service, theBureau of Reclamation, and theNational Park Service.

In many ways, the culture ofthese agencies today retains the pro-gressive’s faith in technical decisionmaking.5 The Progressive Era alsofostered a widespread distrust ofmarket mechanisms (promptedlargely by public perception ofmonopoly excesses), which estab-lished the groundwork for the cre-ation of environmental programsbased on regulatory, rather thanmarket-based, incentives. Theseideas retained their influence intothe Depression Era, and wereexpressed further in followingdecades.

By the time the nation fullyemerged from economic depressionand the Second World War, theonset of the so-called “SecondRepublic”6 had forever changed theface of American democracy. Thisform of democracy (still largely ineffect) advances public policy-mak-ing through “pluralism,” a systemin which government is both partici-pant and ringmaster in a field ofcompeting interest groups.

Several critical factors associated

with pluralist systems—the strategicadvantage afforded to narrow eco-nomic interests, the correspondingsubordination of parties seekingbroad public benefits (such as envi-ronmental protection), and the fre-quent co-optation of scientific deci-sion makers by interest groups—often lead to natural resource vul-nerability and degradation. Both theProgressive Era and the SecondRepublic were characterized by verysubstantial public investment pro-grams that did not necessarily servea broad range of interests.

3.2 The Environmental Movement

The environmental movementbegan—and Congress passedNEPA—against this political andsocial backdrop. Environmentalismfocused on the failure of technocrat-ic and pluralist governance to ade-quately address environmental val-ues and social equity. Other socialmovements (e.g., civil rights, paci-fism/anti-war, and women’s libera-tion) presented similar critiques.

People perceived that economicvalue, not natural science, ofteninfluenced natural resources deci-sions. Public pressure instigatedmany reform attempts to reduce thecombined influence of technicaldecision makers and economic inter-ests. Strong regulatory regimes andprovisions for citizen lawsuits insti-tutionalized responses to the con-cerns of environmentalists and oth-ers. Ultimately, the era establishedgreater public control over publicpolicy-making and succeeded atchanging decision-making processesto improve agency accountabilityand responsiveness.

In the 1970s, agencies tested andrefined their NEPA “public partici-pation” methods and settled on astandard format: formal public hear-ings supplemented by written pub-

Existing Models 25

lic comment. Some people were notsatisfied with these limited opportu-nities to influence decision out-comes. Others, after gauging thenew balance of power in the 60s and70s, were frustrated that NEPAprocesses offered interests no oppor-tunity to initiate or accomplishaction on their own. NEPA legisla-tion did, however, empower peopleto block specific agency actions.

Over the past few decades, NEPAlitigation steered many decisionsthrough long, confrontational, nar-rowly-defined debates.7 In severalcases, litigation proved to be theonly available tool to secure ade-quate environmental protection andappropriate agency action. Despiteits utility, the use of this power hasalso, at times, led to an unintendedoutcome of increased publicinvolvement in agency processes:stalled (or slowed) decision out-comes and polarized political cli-mates.

One other unanticipated outcomeof the environmental era reformshas been the relegation of science toa secondary role as a result of effortsto rein in the technical bureaucracy.“Science” has become a politicaltool, differentially invoked for andagainst environmental protectionmeasures. For example, regulatedindustries often present their ownfindings, which they claim are basedon “sound science,” and so call intoquestion the accuracy and credibili-ty of scientific findings from agen-cies, academics, and environmentalgroups.

3.3 The Current SituationBy the 1980s and 1990s, some

reformers realized the need for newmodels that would help agenciesand the public make decisions morepragmatically and efficiently. Somecritics (including industry lobbyists)presented forceful complaints about

the time and cost associated withthe NEPA process.

Among citizens and environmen-tal interests, inadequate opportuni-ties to participate in environmentaldecisions fostered frustration. Peo-ple blamed polarization andimpasse on a range of causes: frag-mented agency thinking; the highcosts of formal decision-makingprocesses; the subordination of localcommunities to national interestgroups; limitations in the publicinvolvement processes; and, thesubordination of science to specialinterests and law.

In response to the perceived flawsin the system of governance, peopleexperimented with strategies torevitalize decision making. A grow-ing number of people began to see anew form of public participation—collaboration—as one possible fixfor the perceived flaws in the sys-tem. Across the country, peoplerevived the ideals of Jeffersonian,direct democracy, arguably gainingmore popularity for these ideas nowthan in Jefferson’s day.

Although collaboration took holdas a viable concept in the 1980s, a1973 collaborative effort establishedthe first model for facilitating agree-ment among diverse stakeholders inan environmental dispute. In thisinstance, Governor Daniel Evans ofWashington invited Gerald Cormickand Jane McCarthy of the FordFoundation to help mediate a dis-pute over a proposed dam on theSnoqualmie River.

By the end of 1974, an agreementwas signed which relocated thedam, proposed establishing a coor-dinating council for the basin, andsuggested other flood control andland use measures. The dam wasnot built, but the council existed forten years and many of the land usemeasures were implemented.8 Sincethis watershed issue and resolution,


collaborations have varied widely intopics, goals, membership, anddevelopment.

Over the past two decades, peo-ple initiated thousands of creativeefforts to improve public participa-tion in decision making, both withinthe NEPA process and in other envi-ronmental decision-making process-es. Coalitions, such as westernwatershed groups and forestry part-nerships, proliferated and sparkednew efforts.9

Dissatisfaction with the tradition-al NEPA process stimulated agencyemployees to invent more effectiveways to include interested people.Innovative mediation strategies,such as alternative dispute resolu-tion (ADR) and negotiated rule-making, have also been tested andapplied with greater frequency.

People seek opportunities for col-laboration across the full scope ofenvironmental issues and types ofdecisions (e.g., rulemaking, policies,plans, permits, enforcement actions).In some cases, people aim only toframe issues and understand oneanother’s perspectives; in othercases, they seek agreement andaction. Collaboration develops at allstages in the evolution of an issue:as a problem emerges, after posi-tions are polarized, during debateabout alternative solutions, andafter litigation has begun.

Initiatives also vary in the compo-sition of the collaborative groupsthat form. Many involve multiplecooperating agencies; others includegovernmental, private, and publicinterest or citizen groups. In all ofthese initiatives, it is important torecognize the distinction betweenefforts that involve multiple agen-cies in collaboration and use tradi-tional public involvement strategieson one hand, and efforts, on theother hand, that are explicitlyfocused on including the public as

an integral voice at the decision-making table.

Several policy changes encour-aged this experimentation. In the1990 Negotiated Rulemaking Act,Congress authorized and codifiedthe use of multiparty negotiation inpromulgating federal regulations.(Recent analysis has called intoquestion the value of the formal useof negotiated rulemaking for federalagencies.)10

In the Alternative Dispute Resolu-tion Act(s) of 1996 and 1998 Con-gress clarified and authorized feder-al agency use of alternative disputeresolution processes.11 The ADR Actalso required each federal agency todesignate a specialist to evaluateappropriate uses of ADR tools inthat agency’s scope of activities.Twenty-nine states voluntarilyestablished offices to foster collabo-rative problem solving or disputeresolution processes in public deci-sions.12

Other changes in environmentalregulation occurred in response topublic dissatisfaction, concurrentwith the development of new col-laborative, participatory approaches.Experiments in reform reintroducedmarket mechanisms into environ-mental management (e.g., westernwater markets, pollution trading). Insome arenas, people suggested thatthe traditional preference for regula-tory controls (sticks) should shift toa focus on voluntary action andincentives (carrots).

Public opinion polls, however,have continued to demonstrate thepublic’s strong support of regulato-ry action to protect the environment.It is unclear how public preferencefor strong regulatory controls isrelated to recent efforts to establishvoluntary, collaborative decision-making processes.

Since the mid-1980s, innovativeprocesses for addressing and resolv-

Existing Models 27

Over the past

two decades,

people initiated

thousands of

creative efforts

to improve

public participa-

tion in decision

making, both

within the

NEPA process

and in other

environmental

decision-making

processes.

Coalitions, such

as western

watershed

groups and

forestry

partnerships,

proliferated and

sparked new

efforts.

ing differences have increased invariety and frequency.13 Peopleundertaking these new processesbelieve collaborative approachesoffer significant potential benefits: toreduce costs of decision making andlitigation; to better utilize localknowledge and scientific expertise;and to marry technical and value-oriented debates in coordinateddecision processes.

In many cases, stakeholders whofind themselves locked in stalledprocesses (due to litigation or seem-ingly irreconcilable differences) haveturned to collaboration as a oppor-tunity for resolution and change. Ascollaborative approaches evolve,new technologies such as the inter-net provide improved access toinformation and ideas, which pre-pares the ground for meaningfulcollaboration.

3.4 Today's QuestionsNew approaches to public deci-

sion making and the NEPA processgrow out of a rich history, a historythat can help us frame questions to

move these approaches forward.Place-based problem-solvingthrough watershed conservation dis-tricts extends back at least sixdecades; Coordinated ResourceManagement (CRM) processes havea four decade history; and, toolssuch as ADR and many market-based approaches have been promi-nent institutional features for aquarter of a century.

The context has changed, butmany of the issues raised are notnew or novel to this era. What isnew is the particular current combi-nation of strategies for changing theway we make public decisions. Aswe consider incorporating collabora-tion and place-based decision mak-ing into the NEPA model, severalquestions arise.

• To what extent can these new “alter-native” processes supplement orimprove on traditional decision-mak-ing mechanisms (including regula-tion and litigation)?


Participants atwork in the

afternoon sunshine.

• To what extent do collaborativeprocesses provide a fair distributionof power and satisfy current democ-ratic notions of full and balanced rep-resentation (especially compared toother processes for making publicdecisions and resolving public dis-putes)?

• What conditions seem necessary formore collaborative approaches to suc-ceed, and what conditions typicallyindicate that such approaches won’twork?

• How efficient are collaborativeprocesses, and can their implementa-tion be improved to balance opportu-nities for representative democraticparticipation with the need for expe-dient decision making?

• How can technical expertise be bestutilized in this form of decision mak-ing?

• Are collaborative and consensusapproaches more or less likely thanother decision-making approaches tolead to decisions and actions that ful-fill the intent of NEPA Section 101goals?

• How should decision makers fixaccountability for a decision outcomewhen collaborative processes involvemultiple cooperating agencies anddiverse interest groups?

• Do consensus-building efforts placelimitations on effective policy design?

Clearly, these questions have noright or wrong answers. But suchquestions should help guide futureefforts to test, document, and evalu-ate collaborative approaches. Nestedwithin these questions are keyissues some people have presentedas justification for cautious appraisal

and selective implementation of col-laborative processes.

A concerted effort to seek answersto these questions, through practice,observation, and improvement, mayeventually lead to a system that bet-ter matches government and NEPAdecision-making processes with thepublic’s expectation for true democ-ratic participation.

4.0 BASIC NEPA PROCESS STEPSIf we are going to explore how

collaborative approaches can beintegrated into the NEPA process,we need to understand the frame-work we are working within. To thisend, this section describes the stepsin a generic NEPA process. Mostfederal agencies prepare environ-mental impact statements (EISs) fol-lowing the common steps listedbelow.

Formally, CEQ regulations definethe NEPA process as “all measuresnecessary for compliance with therequirements of Section 2 and Title Iof NEPA.” The steps describedbelow can be grouped into basic

Existing Models 29

Figure III-1NEPA Basic Phases Formal NEPA Steps

• Pre-proposalRecognize a need • Proposed action

• Scoping

Consider options formeeting the need • Develop alternatives

• Analyze alternativesAnalyze the options • Accept comments on EA

or Draft EIS

• Decide on an actionPick the best option • Respond to judicial or

administrative challenges

Get to work and see how it works • Implement and monitor

decision-making phases, illustratedin Figure III-1.

• Pre-Proposal Stage: Agencies con-sider and discuss a project for a peri-od of time (from a few weeks to a fewyears) before formally proposing tocarry it out. Agencies may conductbasic inventory work and mapping atthis stage. Other interested partiesmay be asked to advise or assist.

• Proposed Action: Agencies issue aproposal to authorize, recommend, orimplement an action to meet a specif-ic purpose and need. An action caninclude, “new and continuing activi-ties, new or revised agency rules, reg-ulations, plans, policies, or proce-dures; and legislative proposals.” (40CFR 1508.18).

• Scoping: An open public processdetermines the extent of the issues tobe addressed and identifies the signif-icant issues related to a proposedaction.

• Develop Alternatives: Agencies areresponsible for drafting alternativesthat address the issues identified inthe scoping period; meet the purposeand need of the proposed action; andspecify activities that may produceimportant environmental changes.

• Analyze Alternatives: The leadagency, cooperating agencies, projectproponents, or an environmentalconsultant conduct environmentalanalysis and the Draft EIS isreleased.

• Comment Period: The public andinterested parties comment on theDEIS in a minimum 45-day com-ment period.

• Record of Decision: The leadagency responds to comments madeon the Draft EIS (usually in the

appendix of the Final EIS) andselects the preferred alternative. Theagency signs off on the Final EIS andfiles it with CEQ. The lead agencyissues a Record of Decision (ROD)stating the decisions it has made,including the alternative of choiceand any plans it has to minimize theimpact on the environment.

• Judicial or Administrative Chal-lenges: The Forest Service, the BLM,and several other agencies provide forformal appeals of their decisions. Thisaction precedes any lawsuit. Otheragencies do not provide for appealsand so are liable for citizen suitsimmediately upon issuing a decision.

• Implementation and Monitoring:During and after implementation,agencies are responsible for monitor-ing the impacts of their actions. (Thisstep rarely takes place in a formalway.)

5.0 NEPA PUBLICINVOLVEMENT IMPLEMENTATION TYPES

Within the basic framework forthe NEPA process, many variationson collaborative approaches are pos-sible. Workshop participants con-cluded that NEPA processes current-ly are carried out within one of threefairly distinct public involvementapproaches, or “types:” TraditionalPublic Involvement, Agency-initiat-ed Collaboration, and CollaborationInitiated by Others. See Table III-1,below, for an introduction to thethree types.

The basic types are discussed inthe following sections, with someadditional breakdown into sub-types. Case study examples of alltypes and sub-types are mentionedin the text and included in detail inAppendix B. Table III-2, immediate-ly following this section, comparesthe three types by describing how


the public is involved at each basicstep in the NEPA process.

This detailed review of activitiesand actions at each step in theNEPA process reveals the strengthsand weaknesses of each differenttype. A third illustration of collabo-rative approaches as they relate toNEPA process steps is provided inAppendix C, “NEPA and FederalLand Planning: A Checklist of Col-laborative Strategies.”

5.1 Type 1: Traditional PublicInvolvement

Traditional public involvementhas two sub-types. Type 1A is “offthe shelf” NEPA. A federal agencyinitiates and leads the process,involving the public in the scopingstage and during the comment peri-od for a draft EIS. The public may ormay not be involved in judicial oradministrative challenges after adecision has been made.

Existing Models 31

Pre-ProposalStage

Proposed Action

Scoping

Agency choosessite for action.

Agency frames aproposal.

Agency publi-cizes its proposaland the publicsubmits writtencomments.

Using field tripsand slide shows,agency testspublic opinionabout needs foraction.

Agency seeksout communityleaders to holdliving room dis-cussions.

Agency beginspublishing anewsletter orwebsite andaccepts writtencomments.

May be someinteragency col-laboration or dis-cussion.

Cooperatingagency status isconferred uponwilling agencieswith project-related expertiseor jurisdiction.An MOU orother coopera-tive agreement isnegotiated.

Scoping is con-ducted jointly bycooperatingagencies.

May be someagency/multi-stakeholder col-laboration or dis-cussion.

Agency framesproposal withinput frommulti-stakehold-er group.

Agency, multipleagencies, and/orproject propo-nent convenesmultipartygroup to assist.Group may bechartered toreach consensuson set of alterna-tives for analysisor simply askedto serve assounding boardfor the NEPAanalysis.

May be somecollaboration ordiscussionbetween groupand agency.

Agency framesproposal afterdiscussion withcollaborativegroup.

Collaborativegroup jointlycrafts one ormore alterna-tives to submitto the agency fortheir analysis.Group may ormay not definethemselves asinclusive, con-sensus-seekinggroup. Groupmay or may notexplicitly includeagency perspec-tives in theirdeliberations.

Table III-1. Comparison of NEPA Implementation Steps for Different Process TypesType 1: Traditional Public Involvement Type 2: Agency-initiated Collaboration Type 3: Collaboration

Initiated by Others

A. Lead AgencyMain Actors

NEPA Steps

B. Lead Agency withInnovations

A. Inter-agency B. Multi-stakeholder Citizens, industry,other interested parties

32 Reclaiming NEPA’s Potential

Develop Alternatives

Analyze Alternatives

Public Commenton Draft EIS

Record of Decision

Administrativeor Judicial Challenges

Post-DecisionImplementationand Monitoring

Agency developsvariations on itsproposal, refer-ring to scopingcomments.

Agency docu-ments its analy-sis.

Agency acceptspublic commentsin writing and/or at publichearings.

Agency consid-ers commentsand makes deci-sion.

Public may ormay not seekrecourse to thedecision.

Agency isresponsible.

Agency publish-es preliminaryalternatives andmaps on inter-net. Uses feed-back to finalizealternatives.

Agency holdseducational sem-inars.

Agency holdsopen house,accepts written,verbal, and inter-net comments.

Deciding officialpublicizes possi-ble changes,gathers feed-back, and makesa decision.

Deciding officialconvenes anoth-er open house todiscuss claims ofan appeal orintent to sue.

Agency isresponsible.

Agencies cooper-atively developset of alterna-tives.

Agencies cooper-atively analyzealternatives.

Agencies acceptpublic commentsin writingand/or at publicmeetings

Lead agencyconsiders com-ments andmakes decision.


Lead agency isresponsible.

Agency workswith multi-stake-holder group togenerate alterna-tives.

Agency workswith multi-stake-holder group toanalyze alterna-tives.

Agency acceptspublic commentsin writingand/or at publicmeetings.

Agency consid-ers commentsand makes deci-sion; may be inconsultationwith multi-stake-holder group.


Multi-stakehold-er group may becharged withmonitoringimplementationof decision.

Collaborativegroup jointlycrafts one ormore alterna-tives to offer theagency.

Agency workswith collabora-tive group toanalyze alterna-tives.

Agency acceptspublic commentsin writingand/or at publicmeetings.

Agency consid-ers commentsand makes adecision; may bein consultationwith collabora-tive group.


Collaborative orother interestgroup may takeon task on moni-toring imple-mentation ofdecision overtime – formallyor informally.

Table III-1. Cont’dType 1: Traditional Public Involvement Type 2: Agency-initiated Collaboration Type 3: Collaboration

Initiated by Others


NEPA Steps



33Existing Models

Strengths

Weaknesses

Clarity and pre-dictabilityregarding deci-sion-makingsteps, schedule,and opportuni-ties for people toinfluence out-come.

May be mostefficient in termsof time, staffwork, andagency expense,especially fornon-controver-sial actions.

Informationflows tend to beone way andtypically in writ-ten form, thuslimiting theopportunities fordialogue andmutual learning.

If stakeholdersdon’t see evi-dence their com-ments wereaddressed, theymay challengethe processand/or the deci-sion.

Clarity and pre-dictabilityregarding deci-sion-makingsteps and sched-ule.Enhanced oppor-tunities for peo-ple to participateand influenceoutcome.

May reduceadministrative orlegal challenges.

Likely to takeadditional timeand expense.

Opportunitiesfor joint fact-finding, jointgeneration ofalternatives, andpackage deals(putting togethera set of optionsthat meet the keyinterests of allagency players).

Potential tostrengthenagency workingrelationships forfuture work.

Likely to takeadditional timeand expense toconduct.

Past problemswith workingrelationships,power/jurisdic-tion struggles,and other issuescan lead toimpasse anddelay.

Opportunitiesfor joint fact-finding, jointgeneration ofalternatives, andpackage deals(putting togethera set of optionsthat meet the keyinterests of agen-cies and multi-stakeholdergroup).

Outcomes tendto be moredurable if jointlyinvented andnegotiated.

Process take sub-stantial time andcommitment tostructure andfacilitate appro-priately.

Without pur-poseful shuttlediplomacy andcaucus workbetween meet-ings, some par-ties may not par-ticipate in goodfaith and maydiscredit or mis-characterize theprocess.

Opportunitiesfor joint fact-finding, jointgeneration ofalternatives, andpackage deals(putting togethera set of optionsthat meet the keyinterests of allparticipants).

Can provide apractical meansfor manageablenumber of keyparties to cometogether andjointly craft alter-natives and gen-erate optionsthat may nothave beenthought of byagency.

Outcomes tendto be moredurable if jointlyinvented andnegotiated.

Without explicitpre-commitmentby (or linkage to)agency decisionmakers, groupproduct may notbe used or con-sidered.

Group unas-sisted by trustedfacilitator or lessconcerned withinclusivenesscould result inless stable out-come.

Table III-1. Cont’dType 1: Traditional Public Involvement Type 2: Agency-initiated Collaboration Type 3: Collaboration

Initiated by Others


NEPA Steps



The five-year process for theRoutt National Forest Plan Revisionprovides an example for this stan-dard approach (see Case 1 inAppendix B).

Type 1B might be called “innova-tive” NEPA. A federal agency initi-ates and leads the process. Employ-ees introduce innovations to the “offthe shelf” process to improve theprocess and increase public involve-ment through whatever means theyhave at their disposal. Practitionersincorporate innovative publicinvolvement tools and techniquesinto all stages of the NEPA imple-mentation, to improve both agencyand public deliberation and decisionmaking. Examples of the toolsinclude the following:

• Newsletters

• Field trips

• Open Interdisciplinary Team meet-ings

• Work groups (usually over a periodof time, often involved in identifyingalternatives)

• Roundtables (usually one-time gath-erings during scoping or DEIS com-ment)

• Project websites (may include webpublishing of all drafts and relevantdocuments)

• Internet communication (on-linecomment, disk comments)

• Geographic Information System map-ping (improves alternatives analy-sis/public information)

• Situation assessments14

These tools and techniques helpopen up the NEPA process, making

it more transparent for the publicand improving the exchange ofinformation between agencies andthe public. For example, in the EISprocess for the Yosemite Valley Plan,the National Park Service created aproject website and experimentedwith other interactive opportunitiesfor public education and involve-ment (see Case 2 in Appendix B).

5.2 Type 2: Agency-initiatedCollaboration

Lead agencies occasionally initi-ate collaboration among agencypartners or, to varying degrees, withother interested parties. In Type 2A,several agencies participate in aninteragency process. In one recentexample, the National Park Service,in their winter use plan EIS for Yel-lowstone and Grand Teton NationalParks, invited states, counties, andother agencies to participate in theprocess as cooperating agencies(Case 3, Appendix B). Some wouldargue that this type is not a true“collaboration,” since the public isinvolved at the traditional steps inthe NEPA process, and few opportu-nities for additional involvement arecreated.

If agencies initiate a collaborative,multi-stakeholder process (Type 2B),the public may or may not beinvolved in additional steps beyondthe traditional opportunities forinvolvement. Most often, however,agencies who initiate such processesbuild in extensive opportunities forcommunity involvement at all lev-els, including the pre-proposal andproposed action stages, duringdevelopment of alternatives, and inpost-decision implementation andmonitoring.

The San Juan National Forest con-ducted an expanded public involve-ment process for a forest plan revi-sion (Case 4, Appendix B). TheSierra Nevada Framework Project


(Case 5, Appendix B), in which 10national forests in two states collab-orated to draft a single region-wideEIS, is another example of this formof collaboration. The Forest PlanAmendment EIS, which is nested

within the Sierra Nevada Frame-work, contains three alternativesthat were drafted and proposed byspecial interest and industry groups,in consultation with the Forest Ser-vice.

Note: The above table examines the degree of public involvement within each of the common “types.” Black lines indicate steps inwhich the public is definitely involved. Gray lines indicate steps in which the public may or may not participate. The broken lineunder Type 4 indicates a process that has not been tested.

35Existing Models

Table III-2. Public Involvement in the NEPA ProcessType 1: Traditional Public

InvolvementType 2: Agency-initiated

CollaborationType 3: Collab-oration Initiat-ed by Others

Type 4: “Demo-cratic Forum”


NEPA Steps

B. Lead agencywith

innovations

A. Inter-agency B. Multi-stake-holder

Citizens, indus-try, other inter-ested parties

Agency and allinterested parties

Pre-Proposal Stage

Proposed Action

Scoping

Develop Alternatives

Analyze Alternatives

Public Commentson draft EIS

Record of Decision

Administrative or Judicial Challenges

Post-DecisionImplementationand Monitoring

Sometimes agencies will createformal multi-stakeholder groupswith clear roles and responsibilitiesin the NEPA process. The Gover-nance Committee of the Platte RiverEndangered Species Partnershipbrings together public, private, andcitizen interest groups to implementa cooperative agreement (Case 6,Appendix B).

In the example of the HanfordFuture Site Uses Working Group(Case 7, Appendix B), an intera-gency organizing committee con-vened a multi-party consensusbuilding process to shape discussionaround the Hanford RemedialAction DEIS. The resulting workinggroup, including representativesfrom tribes, agencies, citizen groups,government, and environmentalgroups, eventually formed an advi-sory board to guide the process tocompletion. The Puget Sound Elec-tric Reliability Plan is an early andinnovative example of the collabora-tive process in public decision-mak-ing (Case 8, Appendix B).

5.3 Type 3: Collaboration Initiated by Others

In Type 3, members of the publicinitiate a collaborative approach for aNEPA process. In these cases, thepublic is involved in both pre-pro-posal and proposed action stages,and may or may not be involved inadditional stages after that. The keydistinction between Type 3 and Type2B is that in Type 3 examples theagencies are usually not directlyinvolved in the initial stages of theprocess, when a need is establishedand an action is proposed. In thecases of the Grizzly Bear CitizenManagement Proposal, FlatheadCommon Ground, and the QuincyLibrary Group, (Cases 9, 10, and 11,Appendix B), groups of citizens andlocal interests initiated planning thatled to NEPA process implementation.

5.4 Type 4: Democratic ForumThe final type involves a scenario

in which the lead agency sharesdecision-making responsibility withone or more collaborators. Thishypothetical “democratic forum” isincluded in Table III-2 as Type 4 toshow how it might compare to exist-ing models. Experimentation with ascenario like the democratic forumis discussed in Chapter IV. Thisapproach has not been tested exten-sively, and may not be viablebecause of legal and other barriers.

5.5 Conclusion Nothing in our description of var-

ious collaboration and publicinvolvement models is meant toidentify a single “best” approach.NEPA projects display a bewilderingvariety of site specific elements, dif-ferences in social circumstances, anddisparate levels of public interest.The variety in possible approachesreflects the diversity and the speci-ficity of the projects they areaddressing. In a given NEPAprocess, these types and theirembedded approaches may be selec-tively or organically combined intonew forms.


ENDNOTES1 Snow, 1999.2 McKinney, 1997. 3 For additional citations on issues of gover-

nance, democracy, and collaborativeprocesses see Kenney, 1999a.

4 For an in-depth historical analysis, seeMcKinney, 1999.

5 For discussion of the persistence of pro-gressive ideas, see Nelson, 1997.

6 Lowi, 1979. 7 Statistical information on NEPA litigation

history is available on the CEQ website atwww.whitehouse.gov/CEQ/.

8 Bingham, 1984.9 For the history of the western watersheds

movement, see Kenney, 1999a; McKin-ney, 1999.

10 Coglianese, 1997; 1999.11 Public Law 104-320, the Administrative

Dispute Resolution Act of 1996, amendsthe Administrative Dispute ResolutionAct (ADRA) and other Federal law withregard to alternative means of disputeresolution (ADR) in the administrativeprocess. Public Law 105-315 is the Alter-native Dispute Resolution Act of 1998.

12 Purdy, 1988.13 For more discussion on modern trends in

favor of collaborative processes, see Ken-ney and Lord, 1999.

14 A Situation Assessment consists of inter-views with key interested parties prior tobeginning a collaborative process. Oftenan impartial facilitator conducts the inter-views or, in some cases, agency person-nel. The goal of a Situation Assessment isto develop a common understanding ofthe range of concerns surrounding anissue, and to suggest an approach forresolving the issue that will help satisfythe needs and interests of all interestedparties. Assessing the situation allowspeople to better understand the issuesand the substance of any disagreementsor conflicts. It also sheds light on areas ofagreement and opportunities to improvethe situation.

Existing Models 37


Notes

39

Participants

generally

acknowledged

that collaborative

processes can

build relation-

ships, foster

a common

understanding of

the issues and

each other’s

viewpoints, and

narrow the range

of misunder-

standing and

disagreement.

However,

participants also

cautioned against

the impulse to

view collabora-

tion as an end in

itself.

1.0 INTRODUCTION In the “Barriers” and “Strategies”

workgroups participants examinedstrategies for integrating collabora-tive processes into existing NEPAimplementation efforts. While par-ticipants agreed as to the generaldesirability of new approaches,workshop discussion revealed sev-eral critical differences among par-ticipants concerning appropriatereform and implementation steps.This chapter attempts to capture thediversity of opinion at the work-shop.

Participants generally acknowl-edged that collaborative processescan build relationships, foster acommon understanding of theissues and each other’s viewpoints,and narrow the range of misunder-standing and disagreement. Howev-er, participants also cautionedagainst the impulse to view collabo-ration as an end in itself.

They observed that these process-es are valuable to the extent thatthey contribute to truly better NEPAdecisions--decisions that fully andhonestly disclose the full range ofimpacts from a project or proposal

(including direct, indirect, andcumulative impacts); that containenforceable mitigation measures tominimize effects to the extent possi-ble; and that achieve the substantivegoals of NEPA set out in Section101.1

Workshop participants discussedin detail the current barriers to effec-tive integration of collaborativeapproaches into the NEPA process.The four main categories of barriersidentified by workshop participants—political, legal, administrative andfinancial—are presented in Table IV-1 along with potential strategies forovercoming each barrier.

The context for the Barriers andStrategies discussion was a generalawareness that innovative collabora-tive and other public involvementstrategies represent only a portion ofthe many possible tactics for revital-izing and improving the NEPAprocess (one other tactic beingstricter enforcement of existing CEQregulations).

Additionally, participantsacknowledged the potential legiti-macy of some of the critiques of col-laborative processes (see Chapter III,

Barriers and Strategies

Chapter IV

Barriers to IntegratingCollaborative DecisionMaking into NEPA andStrategies for Overcoming BarriersBarriers: Tom Jensen, ChairGeneen Granger, Dan Heilig, Michael Jackson, Dan Luecke, Lance McCold, Margaret Shannon, Steve Thomas, David WilliamsStrategies: Connie Lewis, ChairBob Cunningham, Rich Innes, Conrad Lass, Deb Paulson, Greg Schildwachter, Robin Smith, Charlie Sperry, Stan Sylva

1. Lack of Presidentialand CEQ leadership.

• Strategy: Gain leader-ship from the WhiteHouse, CEQ, andagency heads.

• Strategy: Explorepotential use of WesternGovernors’ AssociationEnlibra Principles.

2. Lack of leadershipwithin federal, state,and local agencies.

• Strategy: Learn fromand build on existingprograms.

• Strategy: Educate andtrain current managers.

• Strategy: Educate nextgeneration of managers.

3. Reluctance to engagestate, local, and tribalgovernments.

• Strategy: Encourageagencies to initiatecooperating agencyagreements

• Strategy: Encourageagencies to initiatecooperation withoutcooperating agency sta-tus.

4. Perceived lack ofintegrity in collabo-rative approaches

• Strategy: Train agencymanagers and citizens.

• Strategy: Ensure partic-ipant understanding ofprocess.

• Strategy: Promote com-munication among par-ties and honestexchange of informa-tion.

1. NEPA not usedstrategically and ini-tial planning aspectneglected.

• Strategy: Recognize andreward managers whostrive to meet Section101 goals.

• Strategy: Highlight andbuild on approachesthat use NEPA strate-gically.

2. Lack of clear proce-dures for use of col-laborative approach-es in NEPAprocesses.

• Strategy: Train agencymanagers to identifyappropriate applica-tions.

3. Lack of internalagency incentives tobe innovative.

• Strategy: Provideincentives and rewards.

4. Lack of genuine pub-lic involvementstrategies.

• Strategy: Seek CEQguidance on opportuni-ties for public participa-tion.

• Strategy: Use technolo-gy to facilitate commu-nication.

5. Confusion amongagencies.

• Strategy: Improve inte-gration of agencyanalysis.

• Strategy: Provide inter-agency training.

• Strategy: Inventoryagency assessments,plans, and NEPAanalyses.

1. Perceived conflictwith the FederalAdvisory CommitteeAct.

• Strategy: Clarify FACArole.

2. Uncertainty aboutlegal authority formaking federalagency decisions.

• Strategy: Exploreoptions for giving con-sensus-based recom-mendations special sta-tus.

1. Lack of agencyresources to carry outinnovative NEPAimplementation.

• Strategy: Provide morefinancial support at alllevels.

2. Lack of resources toenable equal partici-pation in collabora-tive groups.

• Strategy: Structureprocesses to facilitateparticipation.

Table IV-1 Summary of Barriers and StrategiesPolitical Barriers

and Strategies


Financial Barriers and Strategies

Legal Barriers and Strategies

Administrative Barriers and Strategies

40

Section 3.4) and asserted that furtherresearch, evaluation, and experi-mentation should look to shapethese processes into effective, equi-table, and accessible forms.

In the eyes of some participants,one of the most critical barriers toeffective integration of collaborative,participatory approaches is a gener-al lack of accessible documentationand objective analysis concerningcollaborative processes. Despite 25years of experience with collabora-tion and consensus approaches, it isoften difficult to find answers topressing questions. And althoughseveral researchers have initiatedcritical evaluations of collaborativeprocesses, and others have providedimplementation guidebooks, thebody of research does not yet ade-quately address many keyconcerns.2

Additional research needs toexplore untested hypotheses andlook at existing case studies, whileseeking (1) to identify factors thatcontribute to success or failure and(2) to provide guidance into whichNEPA processes would benefit fromincreased integration of collabora-tion, and which would not.

Relevant research would alsoassist reform efforts to draft explicitstrategies for supplementing theNEPA process with collaborativeprocesses and incorporating Section101 goals. Many of the proposedstrategies suggested below wouldbenefit greatly from additionalinformation and analysis. The finalsection in this chapter considers aproposed strategy for addressingthis “knowledge gap.”

2.0 POLITICAL BARRIERS AND STRATEGIES

Workshop participants definedtwo kinds of political barriers: theabsence of strong leadership pro-moting collaboration and consensus

building within NEPA processes;and, negative perceptions about col-laboration and consensus building’spotential to achieve satisfactory out-comes for all concerned.

2.1 Political Barrier #1: Lack ofleadership commitment to the useof collaborative, consensus-basedapproaches within NEPA

“Collaboration and consensus-build-ing are just the latest buzzwords.”

Currently there is a lack of com-mitment from the President, Con-gress or department secretaries toencourage the use of collaborativeprocesses, probably due to a generallack of awareness about the poten-tial value of using collaborationwithin NEPA decision making.Administrative and CEQ failure topromote the use of collaborativeapproaches has resulted in Congres-sional reluctance to provide finan-cial support for collaborative initia-tives.

Politicians, administrators and thepublic are all ill informed about thesuccesses and failures of collabora-tion and consensus building. Work-shop participants articulated theneed to provide leaders with all ofthe available information about col-laborative processes, and to buildsupport through understanding.

2.1.1 Strategy: Gain leadershipfrom the White House, CEQ, andagency heads.

Participants favored buildinginternal agency and administrativesupport that will lead, eventually, tovisible leadership actions: an Execu-tive Order encouraging the use ofcollaborative approaches in theagencies; additional CEQ guidanceto the agencies; and directives fromsenior agency managers encourag-ing the use of collaborative

Barriers and Strategies 41

In the eyes

of some

participants,

one of the most

critical barriers

to effective

integration of

collaborative,

participatory

approaches is a

general lack of

accessible

documentation

and objective

analysis

concerning

collaborative

processes.

Despite 25 years

of experience

with collabora-

tion and

consensus

approaches, it

is often difficult

to find answers

to pressing

questions.

approaches in preparing EISs orEAs.

2.1.2 Strategy: Explore the potentialfor promotion of the Western Gov-ernors’ Association (WGA) “Enli-bra” Principles for EnvironmentalManagement.

WGA developed the Enlibra prin-ciples, which are based on actualexperiences across the West, inresponse to increased complexity,interest, and controversy surround-ing natural resource managementdecisions. The Western governorssought new ways to vest citizenswith policies that would protect theWest’s heritage and maintain theregion’s extraordinary quality of life.

By implementing these principles,the WGA is striving to reduce polar-ization and litigation by finding uni-fying, citizen and government-sup-ported solutions. The principleshold that collaborative approaches“often result in greater satisfactionwith outcomes, broader public sup-port, and lasting productive work-ing relationships among parties.”3

Several workshop participantspromoted the Enlibra principles as auseful tool for encouraging leader-ship support of collaborativeprocesses in NEPA and other set-tings. The principles create a usefulframework for environmental deci-sion making and encourage the useof collaboration and consensusbuilding as key elements of a com-prehensive process. Other workshopparticipants expressed some concernthat application of Enlibra’s"National Standards - neighborhoodsolutions" approach may have prob-lematic outcomes. Local solutionsare sometimes influenced by narroweconomic interests, they noted,which may lead to the under-repre-sentation of both resource protectionconcerns and the broader concernsof national constituencies (though it

could be argued that these interestswere represented in the develop-ment of the governing national stan-dard in any decision involving U.S.environmental law). Individualgroups or agencies may possessmore influence over decisions thanothers, thus creating an uneven"playing field," although the princi-ples are explicit in calling for "bal-anced, open and inclusive process-es."

Furthermore, states publiclyembracing the principles have beeninconsistent in their applicationaccording to the views of someworkshop participants. Furtherresearch, evaluation, and evolutionmay address outstanding concernsabout equal and fair representationin the Enlibra process and in othercollaborative decision processes.

2.2 Political Barrier #2: Lack ofleadership within federal, state,and local agencies

“We don’t have time to do it right,but we have time to do it twice.”

In recent years, practitioners havelearned, through trial and error,some successful methods and strate-gies to involve the public in collabo-rative natural resource decisionmaking. Federal agencies haverarely taken advantage of thisknowledge in their NEPA imple-mentation processes. (Although useof new approaches has flourishedand become more rigorous, thisinformation is not always accessibleto agencies.)

Many agencies continue to viewNEPA as an administrative obstacle,instead of a planning tool that canimprove the quality of decisions andenhance public support. Continueddevelopment of collaborativeapproaches depends, to a largeextent, on agency managers’ under-


standing of and support for theseinnovations.

Currently, agencies may even(intentionally or inadvertently) dis-courage employee use of collabora-tive approaches. Agencies often baseemployee performance on theamount of time it takes to reach asatisfactory decision. Collaborationsuffers from this approach because ittends to be more time consuming upfront.

Many employees feel rushed tocomplete NEPA processes in accor-dance with inflexible targets ortimelines. They often feel that thereisn’t enough time to do good collab-orative work, but, by necessity, thereis always time to complete appealsand litigation reports.

As one workshop participantwith extensive experience in theenvironmental sector put it, “Thecynical motto in my agency was—We don’t have time to do it right,but we have time to do it twice.”Agencies need to realize that collab-orative approaches may ultimatelyresult in more durable (and thus, inthe long run, less time-consuming)decisions than those generatedthrough more traditional processes

2.2.1 Strategy: Learn from andbuild on existing programs.

Several existing agency programsand mandates provide potentialmodels for building agency supportand initiative. In 1997, the Chief ofthe U.S. Forest Service (USFS)released a Collaborative Steward-ship mandate.4

In accordance with this mandate,Region 10 of the USFS (Alaska) hasconvened many Collaborative Stew-ardship workshops and communitymeetings. (The USFS has not yetimplemented the CollaborativeStewardship mandate throughoutthe national forest system.) Region10’s recently instituted Alternative

Dispute Resolution program hopesto solve natural resource disputesearly in the process and decreaseappeals and litigation frequency.

A 1998 Memorandum of Under-standing among the Montana Con-sensus Council, USFS Region 1, andthe BLM commits the agencies to“design and facilitate publicinvolvement, dispute resolution, col-laborative problem solving, andconsensus building processes thatinvolve multiple stakeholders.”5

Programs such as these (whichwould benefit from further evalua-tion and support) can provide keylessons for other agencies to learnfrom and apply.

2.2.2 Strategy: Ensure that agencypersonnel are well informed aboutcollaborative approaches andtrained (1) to identify whichprocesses would benefit fromimproved public involvement and(2) in the key elements to success-ful collaboration and consensusbuilding.

Agency managers and personnelshould have access to detailed infor-mation about how collaborativeapproaches are currently beingapplied. Agency managers whounderstand the “promises and thepitfalls” of collaborative approacheswill be more willing to apply theseapproaches with their own jurisdic-tions.

They should be aware of the ben-efits of including all interested par-ties early in the process and theimportance of dealing directly withperceived power imbalances. SeeSection 2.4.1 for more discussion oftraining and education strategies.

2.2.3 Strategy: Educate the nextgeneration of agency managers.

There is a demonstrated need formore training in public involvementand dispute resolution for natural


Continued

development

of collaborative

approaches

depends, to a

large extent,

on agency

managers’

understanding

of and support

for these

innovations.

resource professionals.6 Universities,especially federal land-grant institu-tions, should develop faculty exper-tise and coursework to train stu-dents in collaborative problemsolving, informed decision making,interdisciplinary teamwork, andcommunication.

2.3 Political Barrier #3: Reluc-tance to engage state, local, andtribal governments in NEPAprocesses.

“How can we collaborate if we don’tknow how to cooperate?”

Although CEQ regulations con-tain detailed provisions for coordi-nation and collaboration with state,local, and tribal governments,agency NEPA processes often fail tooffer these entities meaningfulopportunities for involvement.Some workshop participants sug-gested that this situation could beaddressed if agencies invited state,local, and tribal governments to par-ticipate as cooperating agencies.

Other participants articulated spe-cific concerns with expanded use ofcooperating agency agreements. Allthe benefits of cooperation and coor-dination, they asserted, can beachieved without conferring cooper-ating agency status to additionalparties. The discussion below pre-sents two different strategies forengaging state, local, and tribal gov-ernments in NEPA processes.

2.3.1 Strategy: Encourage federalagencies to invite qualified state,local and tribal governments to becooperating agencies in NEPAprocesses.

Under CEQ regulations, a cooper-ating agency is defined as anyagency that has jurisdiction (by lawor special expertise) for proposalscovered by NEPA.7 Federal, state,

local, or tribal governments maypropose cooperating agency status.The lead federal agency makes thefinal designation decision on a case-by-case basis. Cooperating agenciesmay engage in a variety of tasksthroughout the NEPA process: assistthe lead federal agency in EA or EISdevelopment; participate in publicscoping; develop information andanalyses in which they have specialexpertise; contribute staff andresource support; and share infor-mation and data. Cooperating agen-cies do not gain new authority; thelead federal agency retains authorityfor the final decision.

Many state, local and tribal gov-ernment entities would like federalagencies to include them frequentlyas cooperating agencies duringNEPA processes. Proponents ofcooperating agency arrangementsasserted that formal cooperationincreases NEPA process effective-ness, promotes coordination amongall levels of government, and elimi-nates duplication between federal,state, and local procedures.

Workshop participants who sup-ported cooperating agency statusoffered several examples of workinginitiatives and agreements. The BLMrecently released a memo encourag-ing agency staff to offer cooperatingagency status to state, local and trib-al governments when they meet thecriteria for such status (jurisdictionby law or special expertise). Sincethe workshop, the CEQ has releaseda similar memo encouraging thedesignation of non-federal agenciesas cooperating agencies.

The Directors of the Bureau ofLand Management (BLM) andNational Park Service, and the Chiefof the Forest Service embraced clos-er cooperation with all levels of gov-ernment in their letter of September2, 1998 to the Western Governors’Association, in which agencies clari-


fied cooperating agency statusthrough a series of questions andanswers.8

The State of Wyoming currentlyhas cooperating agency status withseveral agencies: the Medicine BowNational Forest, for the Forest Planrevision; the National Park Service,on the Yellowstone National ParkWinter Use EIS; and with the BLMon the Wyodak Coal Bed MethaneEIS and the Pinedale Anticline Nat-ural Gas Exploration and Develop-ment EIS. The Governor’s NaturalResource Sub-Cabinet reviews coop-erating agency opportunities andmakes recommendations to himbased on the scope of the proposedaction and what expertise the statemight be able to lend to the analysis.

In some instances, state agenciesparticipate on Interdisciplinary (ID)Teams. Although cooperatingagency arrangements are fairly new,state participation on the ID Teamhas been an efficient method ofcoordination and communicationbetween state and federal agencies.

In preparing the ManagementPlan EIS for the GrandStaircase/Ecalante National Monu-ment, the BLM requested and wel-comed ID team members providedby the Governor of Utah. USFS reg-ulations do not provide for repre-sentatives of non-federal agencies tobe formal members of ID teams;however, coordination and activeparticipation with ID teams is com-mon.

2.3.2 Strategy: Encourage federalagencies to invite qualified stateand local governments to cooperatein NEPA processes without cooper-ating agency status.

Several workshop participantsasserted that local and state govern-ments can achieve active and mean-ingful participation in NEPAprocesses without cooperating

agency status. CEQ regulations con-tain detailed provisions addressingthe role of state and local agencies.9These provisions, when followed,provide the benefits of greater coop-eration and coordination withoutcreating some of the difficultiesassociated with cooperating agencystatus.

Some participants felt, for exam-ple, that local and state governmentsmay be inappropriately influencedby industry interests. In theseinstances, granting cooperatingagency status could give one inter-est a decision-making role notafforded to average citizens, or evenlarge groups of citizens representedby non-governmental organizations.Other participants cited examples ofcooperating agencies selectivelysharing information with a certaingroup of constituents. Alternativestrategies, participants suggested,can effectively and equitably inte-grate state and local entities intoimproved NEPA implementationprocesses.

2.4 Political Barrier #4: Per-ceived lack of integrity in collabo-rative approaches

“Why should we bother participat-ing? No one listens anyway.”

People (not only the general pub-lic, but also agency staff) are oftenunwilling to implement or partici-pate in collaboration and consensusapproaches because they don’t havefaith that participation will lead tomeaningful, fair outcomes. In manycommunities, people perceive thatcollaborative approaches to NEPAimplementation lack integrity, andso withhold their trust and partici-pation. Such perceptions are oftengrounded in valid concerns, thoughmany of these concerns can beaddressed with improved imple-


Although CEQ

regulations

contain detailed

provisions for

coordination and

collaboration

with state, local,

and tribal

governments,

agency NEPA

processes often

fail to offer

these entities

meaningful

opportunities

for involvement.

mentation processes and increasedpublic education efforts.

Collaborative approaches lackintegrity when all interested parties(stakeholders) are not adequatelyincluded in the group processes.When an excluded group airs itsgrievances through other means(such as appeals or litigation), thecontroversy undermines successfulimplementation of collaborativegroup decisions. Or, if members of acollaborative group have unevenpower in the process (e.g., lack ofresources leading to uneven infor-mation distribution and meetingattendance), “weaker” membersmay not want to participate for fearof being overwhelmed.

Lack of trust can result whenmembers of a collaborative grouphave certain expectations for howtheir input will be used in reachinga final decision. When those expec-tations are not met, members mayfeel that agencies predetermined thedecision outcome and initiated col-laboration “for show” to placatepublic concerns.

Lack of trust can also result wheninformation is not shared in a timelymanner. Several workshop partici-pants expressed a concern that, insome instances, certain data may bewithheld during the public com-ment period on a NEPA document,and then later brought forward asthe basis for an appeal of the finaldecision.

Confusion and concern also arisewhen collaboration and consensusapproaches expose an imbalance orconflict between local and nationalinterests. The “communities”involved in collaborative problemsolving can be either “communitiesof place” or “communities of inter-est;” both have valid concerns andneed to be represented. Local stake-holder concerns are often very dif-ferent from national stakeholder

concerns (e.g., concerns for localeconomic prosperity compared toconcerns over the national signifi-cance of an environmental resource).

The environmental communityhas argued that local collaborationscan sometimes exclude nationalenvironmental concerns that are lessorganized and less well representedin rural areas, and that local collabo-rations are sometimes deliberatelyused to achieve this end. On theother hand, local collaborativegroups have found that the nationalenvironmental agenda often over-rides local solutions and prefer-ences.

In more ad hoc collaborative pro-cedures, questions (legal and other-wise) may arise regarding the fair-ness and legitimacy of processesthat deviate from the rigidly definedand judicially tested proceduresassociated with typical NEPAprocesses. Practitioners and propo-nents of innovative collaborativeprocesses need to provide adequateinformation to reassure the publicand agencies as to the integrity andthe utility of untraditional or innov-ative approaches.

2.4.1 Strategy: Provide guidanceand training to agency managersand citizens about the use of col-laborative processes in the NEPAcontext.

Training for agency personneland citizens (about what to expectfrom a collaborative approach andthe key elements of successful col-laboration and consensus building)could help overcome many trustand integrity issues. Practitionersand others could hold joint trainingsessions for government and non-government individuals and inter-ests.

These sessions could include rep-resentatives from several differentagencies, which may help address


the lack of agreement among agen-cies about when and how theyshould use collaborative processes.Training sessions could also focuson bringing together people whohave the potential to initiate futurecollaborations around common con-cerns.

People would walk away fromthe training with a shared set ofskills, new working relationships,and deepened respect and trust foreach other. Some specific ideasabout training are included below.(See Appendix C for information ona relevant BLM training course.)

• Train people how to be good collabo-rators as individuals and how towork together effectively.

• Train people to recognize whenenhanced collaboration is likely toresult in more durable decisions andoutcomes.

• Provide information about how toevaluate different kinds of collabora-tive processes and apply them appro-priately to different situations.

• Emphasize the use of collaboration atthe pre-scoping and scoping stages.

• Provide local or regional trainingopportunities and offer accessthrough “distance learning” toencourage as much participation aspossible.

• Consider providing a stipend to covertravel expenses and meals.

• Offer participants the opportunity tocontribute to the training agenda: letthem identify their needs.

• When possible, contract trainingwith a non-governmental source toremove concerns about governmentalcontrol of the process. Alternatively,

consider a team made up of non-gov-ernment and government trainers.

• When possible, select trainers fromthe training area who are familiarwith the special nuances, relation-ships, issues, and history of the par-ticipating parties. (This may not beappropriate or acceptable in some sit-uations. In these cases, participantsmay be more comfortable with anoutside party who has no priorknowledge.)

• Open training to all, but seek out keyindividuals in the community whohave demonstrated an interest in con-structive, creative problem solving.

• Consider offering a series of trainingsessions: one to get folks started,another to check in and offer trouble-shooting skills.

2.4.2 Strategy: Ensure that partici-pants in a collaborative effort havea clear understanding from thebeginning about how the group’sdecision will be used.

Agencies should review expecta-tions at the outset of the collabora-tive process to establish a mutualunderstanding of the group’s role inthe NEPA process. Existing CEQregulations provide for and promotepublic involvement, but responsibil-ity for the actual decision on a feder-al action lies with the lead federalagency.10

Agencies could document agree-ment in a Memorandum of Under-standing (MOU) form that detailshow an agency will use the group’sfinal decision outcome. In othercases, the group should understandfrom the beginning that their role isadvisory only, and they will have noformal influence on the decision.CEQ regulations (and specific regu-lations for each agencies’ decisionmaking process) need to provide


Practitioners

and proponents

of innovative

collaborative

processes need to

provide adequate

information

to reassure the

public and

agencies as to

the integrity

and the utility

of untraditional

or innovative

approaches.

guidance and direction specifying aclear understanding and agreementbetween agencies and the collabora-tive NEPA public participationgroups.

Agencies may also need to beclear about what course of actionthey are likely to adopt in theabsence of a consensus emergingfrom a collaborative group. Oftenthis can have a catalyzing effect onthe group’s work.

2.4.3 Strategy: Promote an honestexchange of information and quali-ty communication among collabo-rative group members.

Good communication has beenone of the keys to successful collab-orative efforts. Convenors of collab-orative processes should ensure thateveryone has access to the sameinformation at the same time.Processes should be designed toguard against the introduction ofnew information as a basis forappealing a decision. If participantsknowingly withhold information forappeals purposes, they erode thetrust relationships in a collaborativeNEPA process.

3.0 ADMINISTRATIVE BARRIERS AND STRATEGIES

Several administrative barriersblock the effective integration of col-laborative approaches into theNEPA process. Such barriers includeconditions that operate (and couldbe solved) within the agency admin-istrative structure. Administrativebarriers also include the factorsleading to agency confusion aboutwhen to use collaboration and con-sensus-building approaches andhow to implement collaborationeffectively.

3.1 Administrative Barrier #1:NEPA not used strategically andthe initial planning aspect of NEPAneglected.

“NEPA was intended to producegood decisions, not just good paper-work.”

Currently, agencies are not effec-tively using Section 101’s provisionsto apply NEPA processes to policy-level decision making (and the Pres-ident has not stepped forward torequire agencies to do so). Section101’s legislative intent was to amendthe legal mandates of any federalagency charged with making deci-


Workshop participants

discuss strategies.

sions (or providing funding foractions) that affect the natural envi-ronment. While the Act’s intent wasclear, land management agencieshave seldom treated this section as asubstantive duty in their manage-ment planning and decision making.

Project-level NEPA publicinvolvement processes often becomean ineffective proxy for debate onbroad agency policy direction.Because the public is not involved atan earlier strategic level, people useproject comment periods as anopportunity to express their opin-ions on broader scale policy issues.

For example, a proposed naturalgas well undergoing assessmentmay become the focus for generaldisagreement about national energypolicy. However, little can be doneto incorporate concerns about ener-gy policy in the consideration of asingle gas well, causing frustrationfor the public, who believe there isno avenue for their grievances. TheNEPA process is not frequentlyimplemented at the earlier strategiclevel when, for example, goals forenergy policy could be decidedupon in an appropriate forum.

CEQ actually requires the use ofNEPA for programmatic planningefforts, but this is rarely done. Agen-cies and others often express differ-ences of opinion concerning thelevel of action that should triggerNEPA. Many feel that agenciescould avoid conflict at the projectlevel if they sought public involve-ment in policy development andencouraged collaboration at the pro-grammatic and policy level.

One of the issues related to col-laboration at the project or smallscale level is concern about balanc-ing local and national interests.Without a clear national strategyand declared policy priorities (orcompliance with the policy prioritiesset out in NEPA), this is a reason-

able concern on the part of fieldmanagers. Once clear direction andfirm priorities are establishednationally and regionally, localizedcollaborative processes may be freerto design actions and practices thatfit the unique qualities of people,place, and environment, whilesimultaneously contributing to thebroader goals reflected in Section101.

The Committee of Scientists’Report, Sustaining the People’s Lands:Recommendations for Stewardship ofthe National Forests and Grasslandsinto the Next Century, makes a relat-ed argument, stating that inter-agency, inter-government collabora-tion needs to occur primarily at the“large landscape scale.”11 Thisinteragency collaboration and strate-gic goal-setting would break fromtradition.

Typically agency rules focusinwardly on decision making andprovide few avenues for interagencyor inter-government collaboration.Even where clear requirements exist,(as in the case of the National ForestManagement Act regulations, whichrequire the Forest Service to coordi-nate with local government plan-ning efforts), NEPA’s policy princi-ples and procedural steps areseldom utilized as mechanisms forcollaboration.

3.1.1 Strategy: Recognize andreward managers who strive tomeet NEPA Section 101 goals.

In an effort to qualitatively evalu-ate and reward Section 101 NEPAcompliance, agencies could beranked under the Government Per-formance Results Act with regard totheir achievement of NEPA Section101 goals.

3.1.2 Strategy: Highlight and buildon attempts to use the NEPAprocess strategically.


NEPA implementation can beviewed as a three-stage processinvolving preplanning, decisionenactment, and follow-up monitor-ing. The Forest Service 1900-1 forestplanning training course uses a tri-angle diagram to demonstrate thesethree stages, as displayed in FigureIV-1. Agencies are intended to givethese three parts equal emphasis,but currently the preplanning aspectof NEPA is often neglected. Agen-cies believe that they are “doingNEPA,” but they are not realizing itsfull purpose or potential. Appropri-ate preplanning should include thepublic as early as possible andshould comprise the initial stage ofa collaborative approach.12

Innovative approaches to collabo-ration in the NEPA process occur atseveral planning scales. Large pro-grammatic plans (such as a ForestPlan) identify areas or zones wherecertain types of activities may takeplace (much like a city zoning map).The issues and concerns at the pro-grammatic level tend to be broad,policy issues.

These plans do not usually saywhen and where individual activi-ties will take place; instead they seta desired condition for each zone’s

future. Some forests, such as theTongass National Forest in Alaska,are huge (17 million acres), and theassociated issues are corresponding-ly vast in scope. In these cases, it isoften beneficial to conduct mid-levelplanning for a smaller area (e.g.,watershed, island, or district), iden-tifying issues at that scale before ini-tiating the NEPA process for a pro-ject which takes place at an evensmaller scale.

For example, the Stikine Area ofthe Tongass National Forest did an“island-wide” analysis for MitkoffIsland. They identified all theresources and potential uses, solicit-ed extensive public input on desiredprojects for the island, identifiedbackground data (e.g., hunting pat-terns, recreation use), and came upwith an island plan. The plan clearlystated that although project fundingwas not guaranteed, as fundingbecame available the agency wouldbring projects forward.

Because the team dealt with pub-lic issues at this non-NEPA, midlev-el, virtually all the projects that havebeen brought forward have alreadybeen bought into by the public, sothere is little conflict at the NEPAstage. Even though this approachdemonstrates a very successful wayto “do NEPA,” most units just don’tfeel they have time to do this extrastep.

Region 10 of the USFS is strivingto make this the norm, rather thanthe exception. This is an example ofthe kind of planning that could beconsidered a Section 101 step andimplemented under current CEQregulations.

Another Forest Service NEPAprocess provides a useful strategicmodel. In 1979, the Lolo NationalForest developed a strategic policyin their Draft Forest Plan (anticipat-ing effects from a multi-agency,interstate, high capacity power line


Figure IV-1

siting process led by BonnevillePower Corporation). The Forest Planpolicy held that any new highcapacity power line should be locat-ed so as to minimize the socialeffects on people and scenery.

In the course of a collaborativeprocess, the strategic policy in theLolo Forest Plan became a guidingpolicy which resulted in a very dif-ferent siting decision than theexpected one (which would havesimply added another line to theInterstate 90 corridor). In this way, amulti-agency decision-makingprocess was able to use a place-spe-cific strategic decision as a guide todecision making at a regional scale;they incorporated the original deci-sion into the common policy frame-work and shared procedural processfor decision making.

3.2 Administrative Barrier #2:Lack of clear decision-making pro-cedure concerning when to use col-laborative approaches withinNEPA processes.

“We can’t do that.”

Collaboration and consensusbuilding are not panaceas, and areonly appropriate in certain situa-tions. Some of the “ingredients forsuccess” include (1) the presence ofa significant issue to negotiate and(2) some incentive or perceivedopportunity for the stakeholders.13In some instances involving routineor minor issues, a collaborativeNEPA process may well not be nec-essary.

In other instances, such as one inwhich extenuating circumstancesmake it difficult to achieve parity atthe collaborative “table,” collabora-tive approaches may intensifyalready contentious situations.However, collaboration at the strate-gic level is often critical.

For the most part, agency staff arenot trained to recognize when col-laborative approaches can be usedeffectively. Managers who are unfa-miliar with collaborative processesmay be reluctant to try newapproaches, out of fear that theywill start too late (or too soon) orconcern that they will appear to beforcing collaboration on an unwill-ing community.

3.2.1 Strategy: Provide training tohelp agency personnel identifyappropriate applications of collab-orative approaches.

Agency managers need to betrained in the critical skills necessaryto help them identify when to applycollaborative approaches within aNEPA process. Managers should beable to conduct a realistic assess-ment of the conditions necessary foreffective collaboration. Ideally, aflexible set of “collaboration crite-ria” would guide agency managersin their decisions.

The BLM and the Sonoran Insti-tute currently have a long-termagreement on “community-basedplanning.” One of the first productsof this agreement is a handbook tohelp local managers recognizeopportunities for collaboration andimplement appropriate steps in acollaborative process. This hand-book (and associated trainings)could easily by shared with otheragencies.

Such a training could be integrat-ed with other training opportunitiesdiscussed in Section 2.4.1. Training,however, is not enough. There mustbe a clear commitment on the partof agencies to undertake collabora-tion in public decision making.Efforts should seek to enhance boththe “will” and the “skill” of publicofficials to engage in dialogue.14


Collaboration

and consensus

building are

not panaceas,

and are only

appropriate in

certain situa-

tions. Some of

the “ingredients

for success”

include (1) the

presence of a

significant issue

to negotiate

and (2) some

incentive or

perceived

opportunity

for the

stakeholders.

3.3 Administrative Barrier #3:Lack of internal agency incentivesto improve NEPA implementation.

“If I use innovations like collabora-tion, I’ll get poor job evaluations.”

This administrative barrier, whilesimilar to political barrier two, con-cerns the absence of internal agencyincentives to support staff who usecollaborative approaches effectively.The current agency reward systemrecognizes people who can completeprojects quickly; people who mayneed additional time to implement acomprehensive, collaborative strate-gy are not similarly acknowledged.

Innovative agency staff mayresolve conflict before it escalates,diffuse highly confrontational situa-tions, and avoid appeals and litiga-tion. However, in most agency staffevaluation structures, there is nomeasure by which to judge thevalue of these kinds of innovations.

3.3.1 Strategy: Recognize, reward,and provide incentives to managersand all participants who promoteeffective collaborative process orotherwise improve the quality ofdecision making.

Agency incentives and staff per-formance standards should berestructured to support and encour-age effective innovation. Just asthere are numerous collaborativeproblem-solving types, there aremany creative ways to reward, rec-ognize and provide incentives toindividuals and groups involved inthese processes. The following high-lights several ideas.

• Introduce performance standards thatevaluate agency staff in their imple-mentation of collaborative approach-es.

• Recognize people and groups withawards for innovative, constructive

collaborative efforts. Consider provid-ing grants or funding to continueaward-winning efforts.

• Use local, regional and state mediasources to document and recognizesuccessful collaborative efforts.

• Invite individuals and group repre-sentatives to workshops, conferences,and other forums to talk about theirefforts and experiences in collabora-tion.

Agencies can initiate other pro-grams to facilitate collaborativepractice and support staff initiative.The Alaska region of the Forest Ser-vice recently instituted an Alterna-tive Dispute Resolution (ADR) pro-gram that encourages the use ofADR techniques to resolve conflictsbefore decisions are made. Profes-sional, neutral third parties are nowavailable to facilitate or mediate dis-putes. Agency staff also work withoutside professional contractors andinternal trained facilitators.

3.4 Administrative Barrier #4:Lack of genuine public involve-ment strategies.

“Why are you asking us? You’vealready made your decision.”

As noted earlier, citizens who feelthey have not been meaningfullyinvolved through traditional NEPApublic involvement efforts may beunwilling to commit to a moreintensive, collaborative form of par-ticipation. Agency public involve-ment efforts are often compromisedby poor planning, unequal access toresources, outdated methods, andinadequate funding. In rare cases,superiors may even instruct agencystaff members to ensure a predeter-mined outcome that fits with theoverall agency plan.


Many agencies continue to usethe same old scoping and publicinvolvement techniques, eventhough they may have been ineffec-tive in the past. Traditional publicinvolvement opportunities can inad-vertently inhibit full and diverseparticipation. For example, meetingsduring business hours effectivelyexclude people with daytime jobs;public meetings and hearings rarelyoffer child care; large public hear-ings discourage many people andmay be easily manipulated by oth-ers.

Although some agencies areimplementing creative publicinvolvement strategies, most havebeen slow to embrace new technolo-gy and non-traditional approachesto public involvement. The publiccan be overwhelmed by demandsfor their participation, and agenciesare not always prepared to solicitinput effectively and respectfully.

3.4.1 Strategy: Seek CEQ guidanceabout how agencies can offer moremeaningful opportunities for pub-lic participation in the NEPAprocess.

Creative, effective public involve-ment strategies do exist. If the CEQcompiled a record of current innova-tions, this record could be madeavailable to agencies as guidanceand inspiration. Agencies may beginto seek public involvement earlier inthe NEPA process (as recommendedin CFR 1501.2) and, in some cases,encourage state agency and publicrepresentation on InterdisciplinaryTeams.

In practical terms, agencies canhelp the public plan their participa-tion by providing schedules ofupcoming projects well in advance.For example, the Forest Service pro-vides a quarterly schedule of pro-posed actions for each forest andincludes a checklist for mailings.

Chapter III, Section 5.1 details otherpractical strategies for improvingpublic involvement.

3.4.2 Strategy: Facilitate communi-cation through more effective useof technology.

Agencies can involve previouslyunderrepresented people through acreative use of media and electronictechnology, including cable televi-sion presentations, free video loans(summarizing meetings, proposals,and information), and internet out-reach. The Army Corps of Engineersis particularly adept at using tech-nology in their public involvementefforts.

Federal agencies also have accessto the contract services of an enter-prise team within the Forest Service,which provides agencies with theresources to use internet technologyand innovative public involvementapproaches in their NEPA processes.

3.5 Administrative Barrier #5:Confusion among agencies.

“The left hand doesn’t know what theright hand is doing.”

Each federal agency has differentpriorities and regulations for NEPAimplementation. This situation oftenresults in the duplication of efforts(in report and document prepara-tion) and increased confusion forNEPA process participants. Forexample, the Forest Service conductselaborate NEPA processes for rela-tively small projects that many otheragencies would categoricallyexclude.

In a more extreme example, theCoast Guard regulations require EAor EIS preparation for all projects,even if they occur on Forest Serviceland. In one case, the Coast Guardconducted public involvement anddrafted a complete project docu-


Each federal

agency has

different

priorities and

regulations for

NEPA imple-

mentation.

This situation

often results in

the duplication

of efforts (in

report and

document

preparation)

and increased

confusion for

NEPA process

participants.

ment before approaching the ForestService for a permit.

Unfortunately, the process had tobe started again from the beginningbecause the analysis document wasnot up to Forest Service standards. Ifthe Forest Service had beenapproached in the beginning, thetwo agencies could have cooperatedon a single document.

3.5.1 Strategy: Improve integrationof agency analysis.

Agencies, with CEQ’s assistance,should make every effort to inte-grate their analysis and manage-ment efforts. In watershed planning,for example, several agencies maypool their efforts on a programmaticEIS for the federal presence in thewatershed. (This level of collabora-tion will only be appropriate whenthere is a watershed-level proposedaction.) At the very least, develop-ment and use of shared data setsand indicators would improveagency coordination. Studies used ina NEPA process, such as socioeco-nomic analyses, can be extremelyuseful to other agencies and officesin the region.

3.5.2 Strategy: Implement intera-gency training on variations inNEPA procedures.

Interagency training should bedesigned to help managers under-stand how their NEPA projects andprocesses could be integrated withthe actions and regulations of otheragencies. Ideally this training wouldbe conducted at multiple locationsto facilitate the consideration of site-specific issues.

Training could also reviewNEPA’s declared policies and specif-ic agency obligations under the Act.In the past, the BLM, the Forest Ser-vice and the Natural Resources Con-servation Service have broadcastNEPA training to field offices

throughout the nation. Interagencytraining could be promoted at theBLM National Training Center andthrough the Forest Service “NEPA101 Course.”15

3.5.3 Strategy: Inventory agencyassessments, plans, and NEPAanalyses.

With the widespread use of Geo-graphic Information Systems (GIS),it is now possible for agencies to cre-ate a common database. Sharedinformation in a database systemwould include regional resourceassessment findings, land use plan-ning decisions, and project-specificNEPA analyses.

Such a database would encouragetiering from existing, larger-scaleNEPA analyses. In the long run, itwould expose potential conflictsbetween plans and gaps in assess-ment and analysis. To ensure maxi-mum usefulness, the common baseshould include the broad range offederal agencies, states and localgovernments with a region.

Accepted inventories by non-gov-ernment groups, such as the NatureConservancy, would also make animportant contribution. It may bepossible for states to host the data-base information on state-wide GISsystems. For example, Utah’s Auto-mated Geographic Reference Systemis the host for all the geographicinformation BLM used in preparingthe EIS for its Management Plan forthe Grand Staircase-EscalanteNational Monument.

4.0 LEGAL BARRIERS ANDSTRATEGIES

4.1 Legal Barrier #1: Lack ofclarity about when the FederalAdvisory Committee Act does anddoes not apply to collaborativeprocesses.


There is widespread confusionabout the Federal Advisory Com-mittee Act (FACA) and its potentialimpact on public or group involve-ment. FACA’s original objectivesactually mirror many objectives ofcollaboration, including open, fair,and balanced representation. How-ever, agency managers often assumethat FACA either prevents orinhibits collaborative efforts when,in fact, this is rarely the case. Suchconfusion can inhibit agencies fromusing advisory groups and involv-ing the public.

Because of such fears, the USFSand BLM have withdrawn from col-laborative efforts such as the Apple-gate Partnership of Oregon, whichwas set up to manage the Applegatewatershed. Several workshop partic-ipants argued that agency managershave actually used concerns aboutFACA as an easy excuse not to docollaborative work.

4.1.2 Strategy: Address FederalAdvisory Committee Act (FACA)issues.

FACA presents both a perceivedand a real barrier to collaborativeprocesses. FACA requirementsapply to advisory groups “utilizedby” or “established by” a federalagency. Court decisions indicate thatfactors affecting whether a groupmeets either of these criteria includewhether an agency (1) originatedthe proposal to create the group, (2)appoints members to the group, (3)sets the group’s agenda, or (4) pro-vides funding to the group.

Generally, community-based col-laborative groups fall outside ofFACA because a federal agency doesnot exercise extensive control overthe group.16 Even if an agency playsa part in establishing a group, FACAdoes not necessarily apply.

Congress or the General ServicesAdministration should clarify the

terms “utilized by” or “establishedby” so that the worthwhile purposesof FACA can be retained whilereducing confusion and removingperceived barriers. CEQ should playa role in bringing consistency to theapplication of FACA among agen-cies. And, the issue of “ceilings” onthe number of committees that canbe chartered under FACA should berevisited.

4.2 Legal Barrier #2: Conflictbetween fixed agency accountabili-ty for decision making and thedesire to share control in collabora-tive groups.

“Who can make the final decision?”

Ultimately, the lead agency in aNEPA process is responsible for theoutcome of a NEPA process andlegally accountable for the decision’simpact. This legal necessity createsconfusion when collaborativegroups wish to share the responsi-bility for choosing alternatives andmaking final decisions. A collabora-tive group is most effective when itknows its decision will have ameaningful impact.

Courts have interpreted the“Appointments Clause” of the U.S.Constitution to hold that federalagencies must not relinquish controlof decision making to another party.Where a collaborative group is sup-posed to have decision-makingauthority, CEQ does not have theauthority to assure that the group’sdecisions are implemented. Thisissue requires considerably moreresearch.

4.2.1 Strategy: Give greater weightto consensus-based recommenda-tions from collaborative groups.

Although agencies cannot techni-cally share decision-making authori-ty, they can look favorably upon, or


Ultimately, the

lead agency in a

NEPA process is

responsible for

the outcome of

a NEPA process

and legally

accountable for

the decision’s

impact.

This legal

necessity creates

confusion when

collaborative

groups wish

to share the

responsibility

for choosing

alternatives

and making

final decisions.

give preference to, recommenda-tions made by a group that hasreached consensus (although thismay be difficult to judge, and prob-lematic in cases where the composi-tion of the collaborative group doesnot represent all interests).

In some instances, agency repre-sentatives could be part of the groupmaking the consensus-based recom-mendations. As a basic step, agen-cies need to clarify their legalrequirements and establish consis-tent processes for using input anddecisions from collaborative groups.This clarity would reassure collabo-rators and build a base for success-ful collaboration.

5.0 FINANCIAL BARRIERS AND STRATEGIES

5.1 Financial Barrier #1: Lack ofagency resources to carry out inno-vative NEPA implementation.

“We’re expected to do more with less.”

Recent agency budget cutbackshave resulted in the loss of talented,experienced NEPA practitioners.Staff that remain struggle to handlethe increased workload, low morale,and low creativity reserves. Agen-cies desperately need experiencedfacilitators to oversee successful col-laboration. They also require accessto the latest scientific informationand to technical consultants whocan demystify science and policy forcollaborative groups.

The lack of financial resourcesinhibits use of the latest technologyand slows the adoption of creativeNEPA implementation approaches.Insufficient resources can also forceagencies to contract out for NEPAdocument preparation. In accor-dance with CEQ regulations, EISsmust either be prepared by the lead

agency, by a cooperating agency, orby a contractor selected by theapplicant (contractors must executea conflict of interest disclosure state-ment). However, because of theclose relationship between contrac-tors and the applicant, and the factthat the applicant is paying for theanalysis, conflict of interest (biasedor incomplete disclosure of impacts)is still very much a concern. Thepublic is often unwilling to put intime and effort on a process thatmay be biased or flawed.

5.1.1. Strategy: Provide moremoney and resources at all levels toensure quality NEPA processes and to support collaborativeapproaches.

Agencies need significantresources to enable them to use cre-ative, project-specific approaches tocollaboration. There may be someopportunities for reallocation ofexisting federal agency budgets.Under existing statutory authority,agencies could also enhance theirefforts to recover the costs of NEPAcompliance from applicants.17 Work-shop participants suggested severalpotential sources of funding:

The National Fish and WildlifeFoundation; other private founda-tions; mitigation funds; statefunds;18 appropriations for pilot pro-jects; in kind support from statemediation offices; better use of exist-ing collaboration training; andrecovery of costs for private actionson federal lands.19 With adequatefunding, agencies could also consid-er a resource pool to support partici-pation (Canada and the U.S. ForestService provide models for provid-ing participant support) and fundsto support the use of professionalfacilitation.


5.2 Financial Barrier #2: Lackof resources to enable equal partic-ipation within collaborativegroups.

“How do we get everyone to the table?”

Collaborative efforts often requireconsiderable time, effort and com-mitment from the participants. Somestakeholders have a difficult timefinding the funds and the trainedpeople they need to participateeffectively. Non-industry and non-government groups, in particular,often lack the resources to partici-pate on an equal footing with othergroups.

Financial resources are alsorequired to allow collaborativegroups sufficient time to absorb rele-vant information and come to adecision. Usually agencies have nofinancial resources (and no adminis-trative procedures to allocateresources) available to assist groupsand ensure equal participation in acollaborative process.

Environmental and other interestgroups perceive that this lack offinancial resources provides indus-try with an inappropriate advantagein collaborative processes. Thesestakeholders feel that industry oftenlooks on collaboration as an easyway to influence the decision-mak-ing process and achieve their prede-termined objectives.

Therefore, environmental groupssometimes have little faith in theintegrity of collaborative and con-sensus-building processes. If agroup feels that it has a betterchance of achieving its goalsthrough appeals or litigation, thereis no incentive to participate in acollaborative process.

5.2.1 Strategy: Require agencies tostructure processes so that all inter-ested parties can participate on anequal basis.

If all stakeholders participate onequal terms, they are more willingto seek understanding and agree-ment. Some of the strategies forimplementing this are noted below:

• Choose meeting locations and timesthat are conducive and convenient tocitizen participation.

• Assist in obtaining money to coverparticipant expenses, such as traveland child-care.

• Provide participants with food ifmeeting times coincides with mealtimes .

• Provide in-kind services such as copyservices, computer services, faxmachine use, paper, and flip charts tomaintain good communication.

• Provide an impartial facilitator tohelp maintain balance among thegroup members.

• Arrange with universities to providestudent assistants to groups.

• Provide technical assistance, such asmap work, GIS, and internet access.

There must be an adequate poolof money for agencies to draw onwhen they implement these strate-gies and facilitate inclusive process-es. If agencies are required to imple-ment strategies without a dedicatedfunding source, high costs may cre-ate a disincentive to using collabora-tive approaches.


While some of

the tension

between the

old statutory

framework and

the new methods

of collaboration

can be addressed

in the ways

recommended

above, some of

that tension

is simply not

yet ripe for

resolution

without further

debate and

the gathering

of more

information.

6.0 PILOT PROJECTSWhile some of the tension

between the old statutory frame-work and the new methods of col-laboration can be addressed in theways recommended above, some ofthat tension is simply not yet ripefor resolution without furtherdebate and the gathering of moreinformation. To that end, workshopparticipants discussed the use ofpilot projects as a way to test strate-gies and gather needed information.

Workshop participants draftedpilot project legislation that directsthe chair of the CEQ to “encourageand support innovative collabora-tive efforts between and among fed-eral agencies, states, Indian tribes,regional and local governments, andthe public to implement andadvance the purposes of NEPA.”

At the workshop, there wasstrong, but not universal, supportfor pilot project legislation thatwould establish opportunities to testand evaluate collaborative solutions.This draft legislation has subse-quently been advanced as a projectof IENR and CRMW.20 Workingdrafts of the proposed legislationhave already benefited from work-shop participants’ constructive criti-cism.

The pilot project proposal, as out-lined in the draft legislation, empha-sizes the selection of innovativepilot projects that test the possibili-ties and limits of collaboration.Workshop participants suggestedthat one possible use of the pilotprojects would be to explore to whatextent decision-making authoritycan be vested within collaborativegroups.

Participants also recommendedthat a pilot project program selectand support emerging or estab-lished collaborative groups. In addi-tion to the draft legislation, partici-

pants suggested that organizationssuch as the Western Governors’Association should be encouragedto undertake similar pilot programsin cooperation with local govern-ments, federal agencies, and citizengroups.

Other, non-legislative approachesto pilot project implementationinclude a possible Executive Orderencouraging pilot projects andappropriations bill language thatprovides individual agencies withfunds for pilots.

Some workshop participants,while not opposed to the pilot pro-ject idea in principle, raised con-cerns that pilot project legislationmight weaken NEPA’s effectivenessas an environmental protection tool.

Others emphasized that, since bytheir very nature successful collabo-rative processes depend on theactive participation of diversegroups, pilots projects should beimplemented from “the ground up,”not “the top down.”

6.1 Pilot Project GoalsSystematic Research and Evaluation:Pilot projects, many participantsobserved, would offer a criticalopportunity for systematic researchand learning about the use of collab-orative public participationapproaches in NEPA processes.Prior to pilot project selection, inde-pendent researchers should compileand evaluate previously completedcollaborative efforts.

This analysis would help framethe questions to be answered in thepilot project program. Throughoutthe duration of pilot projects, a well-funded evaluation and researchcomponent should focus scientificand other forms of inquiry to identi-fy cases where collaboration doesand does not work.

Information from these projectswould help fill knowledge gaps and


infuse lessons learned into futurecollaborations.

Eventually, these findings andlessons would be applied in agen-cies’ core programs and their stan-dard NEPA implementation proce-dures. Agency decision makerswould benefit from this experimen-tation by learning when and wherecollaboration can most effectively beused to improve NEPA processes.

The following list addresses someof the specific issues and topics thatcould be explored through pilot pro-jects:

a) effective strategies for balancing theneed for both local and national par-ticipation;

b) implementation approaches to ensureequal power and influence amongrepresentatives of various views;

c) cost analysis of collaborative versustraditional approaches, including(when possible) extended costs fromlitigation and decision impacts.

Improved Relationships: In addition toadvancing the public debate andunderstanding about collaboration,the pilot project strategy could alsoimprove the relationship betweenCongress and the agencies chargedwith implementing NEPA. Congresswould become a partner, along withthe agencies, in learning how NEPAimplementation can be improved.

Experience has shown that inclu-sive collaborative processes can helprestore trust among citizens in gov-ernmental and business institutions.In the case of NEPA, these processeshold the potential to improve therelationship among federal agencies,states, localities, businesses and citi-zens instead of eroding trust andpolarizing various groups, as hasoften been the case in the past.

Fulfilling Section 101 Goals: Pilot pro-ject selection and evaluation shouldinclude a mechanism for reinsertingthe substantive Section 101(b) policyprovisions (and the incompletelyrealized Section 102 requirements)back into NEPA implementation.Each pilot collaborative groupshould ask and answer a set ofquestions based on NEPA’s broad,environmental protection objectives.

Groups’ answers could be evalu-ated at several stages: upon apply-ing for pilot project status, in themiddle of the NEPA process, uponcompletion of the process, and in aseries of post-decision evaluationsthat monitor action impacts and lev-els of success. Sample guiding ques-tions might include:

• Does this decision “create and main-tain conditions under which man andnature can exist in productive har-mony”?

• Does this process “utilize a systemat-ic, interdisciplinary approach whichwill insure the integrated use of thenatural and social sciences and theenvironmental design arts in plan-ning and decision making which mayhave an impact on man’s environ-ment”?

• With this action, do we “fulfill theresponsibilities of each generation astrustee of the environment for futuregenerations”?

• With this action, do we “enhance thequality of renewable resources andapproach the maximum attainablerecycling of depletable resources”?

Pilot projects should be requiredto prove, to the extent possible, thattheir approaches generate satisfacto-ry answers to the guiding questions.Ultimately, these pilots could pro-duce a set of practical criteria to


implement the broad intent ofNEPA’s as yet unfulfilled goals. Inthis way, pilot projects coulddemonstrate how agency managerscan most effectively use collabora-tive approaches to fulfill the goals ofNEPA Section 101.

7.0 CONCLUSIONA few broad changes are needed

to move NEPA processes into a new,more inclusive, responsive phase.Some of these changes are under-way; others will require extensiveresearch and modeling. On the pro-cedural side, federal agencies thatimplement NEPA must involve thepublic and other affected agenciesearly and often.

Agencies should make a genuineattempt to make the NEPA processan integrated, decision-craftingeffort, rather than a means to reach-ing a pre-determined end. NEPAprovides substantial unrealizedopportunities to integrate effectivepublic involvement and collabora-tive decision making.

Consideration must also be givento strategic planning for broad geo-graphic and ecological regions. Pro-ject by project planning for specificsites fails to properly identifyregional and compound impacts. Ifcollaborative, broad-scale NEPAimplementation is going to be suc-cessful, agencies must be encour-aged to move beyond defensive,“risk-averse” approaches. Federalleaders and lawmakers must valuethe larger goals of Section 101 andprovide agencies with the freedomto experiment with new methodsand processes.

NEPA’s existing implementationprotocol is the result of an accretionof influences over the last 30 years.Current proposals for changeaddress several key problems in theNEPA process as it now stands,while recognizing that change will

necessarily be an organic, gradualprocess. Increased public collabora-tion and participation will most like-ly be key components of any NEPArevitalization effort, and it is criticalthat decision makers understandhow to use new approaches effec-tively and selectively.

ENDNOTES1 According to research completed for

CRMW’s Western Charter project, com-munity-based collaborative groups, intheir mission statements and guidingprinciples, tend to express shared valuesin key areas: sustainability, equity, socialdiversity, economic diversity, and biodi-versity. These shared values may predis-pose collaborative groups to reach out-comes that are consistent with Section101 goals.

2 Researchers and practitioners have provid-ed a strong base for future researchefforts. Key sources in the literature ofcollaboration and consensus include,McKinney, 1998 and Susskind and Cruik-shank, 1987.

3 Visit the WGA website atwww.westgov.org for a full descriptionand listing of the Enlibra principles.

4 Mike Dombeck released the mandate onJanuary 6, 1997 in a speech titled “Sus-taining the Health of the Land ThroughCollaborative Stewardship.” The text ofthe speech can be viewed atwww.fs.fed.us/intro/speech.

5 Included in Appendix C.6 See Harmon, McKinney, and Burchfield,

1999.7 40 CFR 1501.6.8 Both the CEQ memo and the

BLM/NPS/USFS memo are included inAppendix C.

9 See, e.g. 40CFR1503, role of clearing hous-es, and 1506.2, directing federal agenciesto cooperate with state and local govern-ments.

10 40 CFR 1500-1508.11 Committee of Scientists, 1999.12 See “NEPA and Federal Land Planning:

A Checklist of Collaborative Strategies”in Appendix C.

13 Snow, 1999.14 Yankelovich, 1999.15 Joe Carbone, USFS NEPA Coordinator,

can provide additional information aboutNEPA and National Forest Management


Agencies should

make a genuine

attempt to make

the NEPA

process an

integrated,

decision-crafting

effort, rather

than a means

to reaching a

pre-determined

end.

NEPA provides

substantial

unrealized

opportunities

to integrate

effective public

involvement and

collaborative

decision making.

Act training for agency staff. NEPACoordinator, Ecosystem ManagementCoordination Staff, PO Box 96090, Wash-ington, DC, 20090-6090. (202) 205-0884,www.fs.fed.us/eco/eco-watch.

16 Rieke, 1997. 17 Existing statutory authority for this strat-

egy, 1952 Independent Offices Appropri-ation Act, as amended, 31 USC 9701.BLM is also authorized under the FederalLand Policy Management Act to chargeapplicants for a broad range of services,including the costs of preparing environ-mental documents.

18 Oregon, Washington, and Californiaalready provide some funding for water-shed councils.

19 The Forest Service has a pilot project tofunnel such funds directly to the affectednational forest

20 For information about the draft legisla-tion, contact Rich Innes at (202) 354-6457.



Notes

Sources 63

Bingham, G. 1984. Resolving Environmental Disputes: A Decade of Experience. Washing-ton, DC: The Conservation Foundation.

Caldwell, L.K. 1998. The National Environmental Policy Act: An Agenda for the Future.Bloomington, IN: Indiana University Press.

CEQ (Council on Environmental Quality). 1997a. The National Environmental Policy Act: AStudy of Its Effectiveness after Twenty-five Years. Washington, DC: The President’s Coun-cil on Environmental Quality.

CEQ (Council on Environmental Quality). 1997b. “Environmental Quality, 1994-1995Report.” Washington, DC: The President’s Council on Environmental Quality.

Cestero, B. 1999. Beyond the Hundredth Meeting: A Field Guide to Collaborative Conserva-tion on the West’s Public Lands. Tuscon, AZ: Sonoran Institute.

Clark, R. 1997. “NEPA: The Rational Approach to Change,” in R. Clark and L. Canter(eds.), Environmental Policy and NEPA. Boca Raton, FL: St. Lucie Press.

Coglianese, C. 1997. “Assessing Consensus: The Promise and Performance of NegotiatedRulemaking.” Duke Law Journal. Vol. 46, 1255-1349.

Coglianese, C. 1999. “The Limits of Consensus.” Environment. March, 1999.Cohen, W.M. and M.D. Miller. 1997. “Highlights of NEPA in the Courts,” in R. Clark, and

L. Canter (eds.), Environmental Policy and NEPA. Boca Raton, FL: St. Lucie Press. Committee of Scientists. 1999. Sustaining the People’s Lands: Recommendations for Stew-

ardship of the National Forests and Grasslands into the Next Century.Environmental Law Institute. 1995. Rediscovering the National Environmental Policy Act:

Back to the Future. Washington, DC: Environmental Law Institute.France, T. 1990. “NEPA: The Next Twenty Years.” Land and Water Law Review. Vol.

25(1), 133-142.Harmon, W.J., M.J. McKinney and J.A. Burchfield. 1999. “Public Involvement and Dispute

Resolution Courses in Natural Resource Schools: A Five Year Snapshot of Progress.”Journal of Forestry. Vol. 97(9), 17-23.

Kemmis, D. 1998. “A Democracy to Match Its Landscape,” in Keiter, R.B. (ed.), Reclaim-ing the Native Home of Hope: Community, Ecology and the American West. Salt LakeCity, UT: The University of Utah Press.

Kenney, D.S. 2000. Arguing about Consensus: Examining the Case Against Western Water-shed Initiatives and Other Collaborative Groups Active in Natural Resources Manage-ment. Boulder, CO: Natural Resources Law Center, University of Colorado School ofLaw.

Kenney, D.S. 1999a. “Historical and Sociopolitical Context of the Western WatershedsMovement.” Journal of the American Water Resources Association. Vol. 35(3), 493-503.

Kenney, D.S. 1999b. “Are Community-based Watershed Groups Really Effective?,” Chroni-cle of Community. Vol. 3(2), 33-37.

Kenney, D.S. and W.B. Lord. 1999. Analysis of Institutional Innovation in the NaturalResources and Environmental Realm: The Emergence of Alternative Problem-SolvingStrategies in the American West. Research Report (RR-21). Boulder, CO: NaturalResources Law Center, University of Colorado School of Law.

Leucke, D. 1993. Effectiveness of the National Environmental Policy Act. White Paper. Boul-der, CO: Environmental Defense Fund.

Lowi, T.J. 1979. The End of Liberalism. New York: WW Norton and Co. Lynch, S. 1996. “The Federal Advisory Committee Act: An Obstacle to Ecosystem Manage-

ment by Federal Agencies?” Washington Law Review. Vol. 71, 431-459.McKinney, M. 1997. What Do We Mean by Consensus? Some Defining Principles. Chronicle

of Community. Vol. 1(3).

Sources


McKinney, M. 1998. Resolving Public Disputes: A Handbook on Building Consensus. Hele-na, MT: Montana Consensus Council.

McKinney, M. 1999. “Governing Western Resources: A Confluence of Ideas.” Rendezvous:The Humanities in Montana. Vol. 2(2), 4-11.

Murchison, K.M. 1984. “Does NEPA Matter? An Analysis of the Historical Developmentand Contemporary Significance of the National Environmental Policy Act,” University ofRichmond Law Review. Vol. 18, 557-614.

Nelson, Robert. 1997. “Is ‘Libertarian Environmentalist’ an Oxymoron?: The Crisis of Pro-gressive Faith and the Environmental and Libertarian Search for a Guiding Vision,” inJohn Baden and Don Snow (eds.), The Next West. Washington, DC: Island Press.

Purdy, J. 1998. An Overview of State Dispute Resolution Programs. Bismarck, ND: The Poli-cy Consensus Initiative.

Rieke, E.A. 1997. The Federal Advisory Committee Act, Rules and Executive Orders: Judi-cial Interpretations and Suggested Revisions. Boulder, CO: Natural Resources Law Cen-ter, University of Colorado School of Law.

Sheldon, K.P. 1990. “NEPA in the Supreme Court.” Land and Water Law Review. Vol.25(1), 83-97.

Snow, D. 1999. “What Are We Talking About?” Chronicle of Community. Vol. 3(3), 33-37.Susskind, L. and J. Cruikshank. 1987. Breaking the Impasse: Consensual Approaches to

Resolving Public Disputes. New York: Basic Books.Susskind, L.E. 1994. Environmental Diplomacy: Negotiating More Effective Global Agree-

ments. Oxford: Oxford University Press.Twelker, E. 1990. “Twenty Years of NEPA: From Decisionmaker’s Aid to Decisionmaker’s

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mental Protection in the Twenty-First Century.” Journal of Land Use and EnvironmentalLaw. Vol. 12(2), 275-294.

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The National Environmental Policy Act of 1969, as amended

(Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L.94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982)

An Act to establish a national policy for the environment, to provide for the establishment of a Council onEnvironmental Quality, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congressassembled, That this Act may be cited as the “National Environmental Policy Act of 1969.”

Purpose

Sec. 2 [42 USC § 4321].The purposes of this Act are: To declare a national policy which will encourage productive and enjoyableharmony between man and his environment; to promote efforts which will prevent or eliminate damage to theenvironment and biosphere and stimulate the health and welfare of man; to enrich the understanding of theecological systems and natural resources important to the Nation; and to establish a Council on Environmen-tal Quality.

TITLE ICONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

Sec. 101 [42 USC § 4331].

(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all componentsof the natural environment, particularly the profound influences of population growth, high-density urbaniza-tion, industrial expansion, resource exploitation, and new and expanding technological advances and recog-nizing further the critical importance of restoring and maintaining environmental quality to the overall welfareand development of man, declares that it is the continuing policy of the Federal Government, in cooperationwith State and local governments, and other concerned public and private organizations, to use all practica-ble means and measures, including financial and technical assistance, in a manner calculated to foster andpromote the general welfare, to create and maintain conditions under which man and nature can exist in pro-ductive harmony, and fulfill the social, economic, and other requirements of present and future generations ofAmericans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Gov-ernment to use all practicable means, consist with other essential considerations of national policy, toimprove and coordinate Federal plans, functions, programs, and resources to the end that the Nation may(

1. fulfill the responsibilities of each generation as trustee of the environment for succeeding genera-tions;

2. assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing sur-roundings;

3. attain the widest range of beneficial uses of the environment without degradation, risk to health orsafety, or other undesirable and unintended consequences;

Appendix A: NEPA 65

Appendix A

NEPA

4. preserve important historic, cultural, and natural aspects of our national heritage, and maintain,wherever possible, an environment which supports diversity, and variety of individual choice;

5. achieve a balance between population and resource use which will permit high standards of livingand a wide sharing of life’s amenities; and

6. enhance the quality of renewable resources and approach the maximum attainable recycling ofdepletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each personhas a responsibility to contribute to the preservation and enhancement of the environment.

Sec. 102 [42 USC § 4332].

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, andpublic laws of the United States shall be interpreted and administered in accordance with the policies setforth in this Act, and (2) all agencies of the Federal Government shall(

VII(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural andsocial sciences and the environmental design arts in planning and in decisionmaking which may have animpact on man’s environment; (B) identify and develop methods and procedures, in consultation with the Council on EnvironmentalQuality established by title II of this Act, which will insure that presently unquantified environmentalamenities and values may be given appropriate consideration in decisionmaking along with economicand technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federalactions significantly affecting the quality of the human environment, a detailed statement by the responsi-ble official on —

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance andenhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the pro-posed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain thecomments of any Federal agency which has jurisdiction by law or special expertise with respect to anyenvironmental impact involved. Copies of such statement and the comments and views of the appropri-ate Federal, State, and local agencies, which are authorized to develop and enforce environmental stan-dards, shall be made available to the President, the Council on Environmental Quality and to the publicas provided by section 552 of title 5, United States Code, and shall accompany the proposal through theexisting agency review processes; (D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Feder-al action funded under a program of grants to States shall not be deemed to be legally insufficient solelyby reason of having been prepared by a State agency or official, if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its approval andadoption, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicitsthe views of, any other State or any Federal land management entity of any action or any alternativethereto which may have significant impacts upon such State or affected Federal land managemententity and, if there is any disagreement on such impacts, prepares a written assessment of suchimpacts and views for incorporation into such detailed statement.


The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for thescope, objectivity, and content of the entire statement or of any other responsibility under this Act; andfurther, this subparagraph does not affect the legal sufficiency of statements prepared by State agencieswith less than statewide jurisdiction. (E) study, develop, and describe appropriate alternatives to recommended courses of action in any pro-posal which involves unresolved conflicts concerning alternative uses of available resources; (F) recognize the worldwide and long-range character of environmental problems and, where consistentwith the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and pro-grams designed to maximize international cooperation in anticipating and preventing a decline in thequality of mankind’s world environment; (G) make available to States, counties, municipalities, institutions, and individuals, advice and informa-tion useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented pro-jects; and assist the Council on Environmental Quality established by title II of this Act. VIII

Sec. 103 [42 USC § 4333].

All agencies of the Federal Government shall review their present statutory authority, administrative regula-tions, and current policies and procedures for the purpose of determining whether there are any deficienciesor inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act andshall propose to the President not later than July 1, 1971, such measures as may be necessary to bring theirauthority and policies into conformity with the intent, purposes, and procedures set forth in this Act.

Sec. 104 [42 USC § 4334].

Nothing in section 102 [42 USC § 4332] or 103 [42 USC § 4333] shall in any way affect the specific statutoryobligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) tocoordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingentupon the recommendations or certification of any other Federal or State agency.

Sec. 105 [42 USC § 4335]

The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations ofFederal agencies.

TITLE IICOUNCIL ON ENVIRONMENTAL QUALITY

Sec. 201 [42 USC § 4341].

The President shall transmit to the Congress annually beginning July 1, 1970, an Environmental QualityReport (hereinafter referred to as the “report”) which shall set forth (1) the status and condition of the majornatural, manmade, or altered environmental classes of the Nation, including, but not limited to, the air, theaquatic, including marine, estuarine, and fresh water, and the terrestrial environment, including, but not limit-ed to, the forest, dryland, wetland, range, urban, suburban an rural environment; (2) current and foreseeabletrends in the quality, management and utilization of such environments and the effects of those trends on thesocial, economic, and other requirements of the Nation; (3) the adequacy of available natural resources forfulfilling human and economic requirements of the Nation in the light of expected population pressures; (4) areview of the programs and activities (including regulatory activities) of the Federal Government, the Stateand local governments, and nongovernmental entities or individuals with particular reference to their effect

Appendix A: NEPA 67

on the environment and on the conservation, development and utilization of natural resources; and (5) a pro-gram for remedying the deficiencies of existing programs and activities, together with recommendations forlegislation.

Sec. 202 [42 USC § 4342].

There is created in the Executive Office of the President a Council on Environmental Quality (hereinafterreferred to as the “Council”). The Council shall be composed of three members who shall be appointed bythe President to serve at his pleasure, by and with the advice and consent of the Senate. The President shalldesignate one of the members of the Council to serve as Chairman. Each member shall be a person who, asa result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpretenvironmental trends and information of all kinds; to appraise programs and activities of the Federal Govern-ment in the light of the policy set forth in title I of this Act; to be conscious of and responsive to the scientific,economic, social, aesthetic, and cultural needs and interests of the Nation; and to formulate and recommendnational policies to promote the improvement of the quality of the environment.

Sec. 203 [42 USC § 4343].

(a) The Council may employ such officers and employees as may be necessary to carry out its functionsunder this Act. In addition, the Council may employ and fix the compensation of such experts and consul-tants as may be necessary for the carrying out of its functions under this Act, in accordance with section3109 of title 5, United States Code (but without regard to the last sentence thereof). (b) Notwithstanding section 1342 of Title 31, the Council may accept and employ voluntary and uncompen-sated services in furtherance of the purposes of the Council.

Sec. 204 [42 USC § 4344].

9.It shall be the duty and function of the Council —

1. to assist and advise the President in the preparation of the Environmental Quality Report required bysection 201 [42 USC § 4341] of this title;

2. to gather timely and authoritative information concerning the conditions and trends in the quality ofthe environment both current and prospective, to analyze and interpret such information for the pur-pose of determining whether such conditions and trends are interfering, or are likely to interfere, withthe achievement of the policy set forth in title I of this Act, and to compile and submit to the Presi-dent studies relating to such conditions and trends;

3. to review and appraise the various programs and activities of the Federal Government in the light ofthe policy set forth in title I of this Act for the purpose of determining the extent to which such pro-grams and activities are contributing to the achievement of such policy, and to make recommenda-tions to the President with respect thereto;

4. to develop and recommend to the President national policies to foster and promote the improvementof environmental quality to meet the conservation, social, economic, health, and other requirementsand goals of the Nation;

5. to conduct investigations, studies, surveys, research, and analyses relating to ecological systemsand environmental quality;

6. to document and define changes in the natural environment, including the plant and animal systems,and to accumulate necessary data and other information for a continuing analysis of these changesor trends and an interpretation of their underlying causes;

7. to report at least once each year to the President on the state and condition of the environment; and 8. to make and furnish such studies, reports thereon, and recommendations with respect to matters of

policy and legislation as the President may request.


9.

Sec. 205 [42 USC § 4345].

10.In exercising its powers, functions, and duties under this Act, the Council shall(

1. consult with the Citizens’ Advisory Committee on Environmental Quality established by ExecutiveOrder No. 11472, dated May 29, 1969, and with such representatives of science, industry, agricul-ture, labor, conservation organizations, State and local governments and other groups, as it deemsadvisable; and

2. utilize, to the fullest extent possible, the services, facilities and information (including statistical infor-mation) of public and private agencies and organizations, and individuals, in order that duplication ofeffort and expense may be avoided, thus assuring that the Council’s activities will not unnecessarilyoverlap or conflict with similar activities authorized by law and performed by established agencies.

Sec. 206 [42 USC § 4346].

Members of the Council shall serve full time and the Chairman of the Council shall be compensated at therate provided for Level II of the Executive Schedule Pay Rates [5 USC § 5313]. The other members of theCouncil shall be compensated at the rate provided for Level IV of the Executive Schedule Pay Rates [5 USC§ 5315].

Sec. 207 [42 USC § 4346a].

The Council may accept reimbursements from any private nonprofit organization or from any department,agency, or instrumentality of the Federal Government, any State, or local government, for the reasonabletravel expenses incurred by an officer or employee of the Council in connection with his attendance at anyconference, seminar, or similar meeting conducted for the benefit of the Council.

Sec. 208 [42 USC § 4346b].

The Council may make expenditures in support of its international activities, including expenditures for: (1)international travel; (2) activities in implementation of international agreements; and (3) the support of inter-national exchange programs in the United States and in foreign countries.

Sec. 209 [42 USC § 4347].

There are authorized to be appropriated to carry out the provisions of this chapter not to exceed $300,000for fiscal year 1970, $700,000 for fiscal year 1971, and $1,000,000 for each fiscal year thereafter. The Environmental Quality Improvement Act, as amended (Pub. L. No. 91- 224, Title II, April 3, 1970;Pub. L. No. 97-258, September 13, 1982; and Pub. L. No. 98-581, October 30, 1984. 42 USC § 4372.

(a) There is established in the Executive Office of the President an office to be known as the Office ofEnvironmental Quality (hereafter in this chapter referred to as the “Office”). The Chairman of the Councilon Environmental Quality established by Public Law 91-190 shall be the Director of the Office. Thereshall be in the Office a Deputy Director who shall be appointed by the President, by and with the adviceand consent of the Senate. (b) The compensation of the Deputy Director shall be fixed by the President at a rate not in excess of theannual rate of compensation payable to the Deputy Director of the Office of Management and Budget. (c) The Director is authorized to employ such officers and employees (including experts and consultants)as may be necessary to enable the Office to carry out its functions ;under this chapter and Public Law91-190, except that he may employ no more than ten specialists and other experts without regard to the

Appendix A: NEPA 69

provisions of Title 5, governing appointments in the competitive service, and pay such specialists andexperts without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relat-ing to classification and General Schedule pay rates, but no such specialist or expert shall be paid at arate in excess of the maximum rate for GS-18 of the General Schedule under section 5332 of Title 5. (d) In carrying out his functions the Director shall assist and advise the President on policies and pro-grams of the Federal Government affecting environmental quality by — 1. providing the professional and administrative staff and support for the Council on Environmental

Quality established by Public Law 91- 190; 2. assisting the Federal agencies and departments in appraising the effectiveness of existing and pro-

posed facilities, programs, policies, and activities of the Federal Government, and those specificmajor projects designated by the President which do not require individual project authorization byCongress, which affect environmental quality;

3. reviewing the adequacy of existing systems for monitoring and predicting environmental changes inorder to achieve effective coverage and efficient use of research facilities and other resources;

4. promoting the advancement of scientific knowledge of the effects of actions and technology on theenvironment and encouraging the development of the means to prevent or reduce adverse effectsthat endanger the health and well-being of man;

5. assisting in coordinating among the Federal departments and agencies those programs and activi-ties which affect, protect, and improve environmental quality;

6. assisting the Federal departments and agencies in the development and interrelationship of environ-mental quality criteria and standards established throughout the Federal Government;

7. collecting, collating, analyzing, and interpreting data and information on environmental quality, eco-logical research, and evaluation.

(e) The Director is authorized to contract with public or private agencies, institutions, and organizationsand with individuals without regard to section 3324(a) and (b) of Title 31 and section 5 of Title 41 in car-rying out his functions.

42 USC § 4373. Each Environmental Quality Report required by Public Law 91-190 shall, upon transmittal toCongress, be referred to each standing committee having jurisdiction over any part of the subject matter ofthe Report.

42 USC § 4374. There are hereby authorized to be appropriated for the operations of the Office of Environ-mental Quality and the Council on Environmental Quality not to exceed the following sums for the followingfiscal years which sums are in addition to those contained in Public Law 91- 190:

(a) $2,126,000 for the fiscal year ending September 30, 1979. (b) $3,000,000 for the fiscal years ending September 30, 1980, and September 30, 1981. (c) $44,000 for the fiscal years ending September 30, 1982, 1983, and 1984. (d) $480,000 for each of the fiscal years ending September 30, 1985 and 1986.

42 USC § 4375.(a) There is established an Office of Environmental Quality Management Fund (hereinafter referred to asthe “Fund”) to receive advance payments from other agencies or accounts that may be used solely tofinance — 1. study contracts that are jointly sponsored by the Office and one or more other Federal agencies; and 2. Federal interagency environmental projects (including task forces) in which the Office participates. (b) Any study contract or project that is to be financed under subsection (a) of this section may be initiat-ed only with the approval of the Director. (c) The Director shall promulgate regulations setting forth policies and procedures for operation of theFund.


Section 309 - Clean Air Act (excerpt)

(a) The Administrator shall review and comment in writing on the environmental impact of any matter relatingto duties and responsibilities granted pursuant to this Act or other provisions of the authority of the Adminis-trator, contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorizedFederal projects for construction and any major Federal agency action (other than a project for construction)to which Section 102(2)(C) of Public Law 91-190[*] applies, and (3) proposed regulations published by anydepartment or agency of the Federal government. Such written comment shall be made public at the conclu-sion of any such review.

(b) In the event the Administrator determines that any such legislation, action, or regulation is unsatisfactoryfrom the standpoint of public health or welfare to environmental quality, he shall publish his determinationand the matter shall be referred to the Council on Environmental Quality. ———————————————————————————

Appendix A: NEPA 71


Notes

73

Case 1: Routt National Forest Forest Plan Revision........................................74Type 1A (Traditional Public Involvement)

Case 2: Yosemite Valley Plan ..............................................................................75Type 1b (Traditional, Lead Agency w/Innovations)

Case 3: Winter Visitor Use Management ..........................................................76Type 2a (Agency-initiated Collaboratives, Inter-agency)

Case 4: San Juan National Forest Initiative ......................................................77Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 5: Sierra Nevada Framework ....................................................................78Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 6: Platte River Endangered Species Partnership ....................................80Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 7: Hanford Future Site Uses Working Group .........................................81Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 8: Puget Sound Electric Reliability Plan ..................................................82Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 9: Grizzly Bear Citizen Management Proposal ......................................83Type 3 (Collaboratives Initiated by Others)

Case 10: Flathead Common Ground ...................................................................84Type 3 (Collaboratives Initiated by Others)

Case 11: Quincy Library Group ...........................................................................85Type 3 (Collaboratives Initiated by Others)

Appendix B: Case Studies

Appendix B

Case Studies

Type 1A (Traditional Public Involvement)

Case 1: Routt National Forest Forest Plan RevisionLocation: The Routt National Forest is located in north central Colorado,encompassing an area of 1,126,346 acres.

Objective: Revision of the Forest Plan, a plan which manages the forestresources. According to National Forest Management Act, all national forestsare required to revise their forest plans every 10-15 years in order to keepcurrent with changes in social interests, scientific data, and environmentalconcerns.

What Triggered NEPA: The Council on Environmental Quality requires fed-eral agencies to comply with NEPA in decision-making processes such asForest Plan revisions.

Duration: 1993 - 1998

Results/Status: 1993: The Routt National Forest published its Notice ofIntent for the Forest Plan revision process and completed the Analysis ofManagement Situation.

1996: The Draft Environmental Impact Statement was published in February,officially beginning the 60 day scoping period.

1998: The Final Environmental Impact Statement was published in February,officially beginning the 90 day scoping period.

1998: The Record of Decision was published.

Parties:Routt National Forest Interested Citizens


Contact:Hahns Peak/BearsEars Ranger District925 Weiss DriveSteamboat Springs,CO 80487-9315(970) 870-1870www.fs.fed.us/outernet/mrnf/mbrwelcome.htm

Type 1b (Traditional, Lead Agency w/Innovations)

Case 2: Yosemite Valley PlanLocation: Yosemite National Park is located in west-central California in theSierra Nevada Mountains.

Objective: To develop a plan for new and replacement housing for employ-ees who provide resource and facility protection and visitor services inYosemite Valley. The plan developed will reflect the purposes of YosemiteNational Park as stated in the 1980 General Management Plan.

What Triggered NEPA: The development and implementation of a YosemiteValley Housing Plan is considered a major federal action, triggering compli-ance with NEPA.

Duration: 1989 - present

Results/Status: 1989: The National Park Service (NPS) published the Noticeof Intent in February along with a letter to solicit comments and issues to beaddressed in the EIS.

1990: The NPS reopened the scoping period in March to solicit commentsthat would include housing needs for all employees working within theYosemite Valley.

1992: The Draft Environmental Impact Statement (EIS) was released inAugust by the NPS. Scoping comments on this draft were accepted throughSeptember.

1993: The NPS announced an addendum to the Draft EIS in October investi-gating two new alternatives derived as a result of the previous scopingprocess. The NPS reopened the scoping period to receive comments on theaddendum.

1998: In December, the NPS, decided to combine the Draft Yosemite ValleyHousing Plan EIS with three other draft plans (Draft Yosemite Valley Imple-mentation Plan/EIS, Yosemite Lodge Development Concept Plan/EA, andthe Yosemite Falls Facilities Design Project) to develop one comprehensiveplan called the Yosemite Valley Plan. The NPS announces that the integratedplan will include new information developed through subsequent environ-mental studies and modified alternatives or mitigation strategies developedfrom public comments.

1999: The scoping period for the Draft Yosemite Valley Plan closed in Febru-ary. Public activities during the scoping and comment period include inter-pretive programs and ranger-led tours of the areas that could be affected bythe four alternatives; open houses and workshops in Yosemite Valley, the SanJoaquin Valley, the San Francisco Bay Area, the Los Angeles area, and theEastern Sierra region; and information on the NPS Planning Website.

2000: A draft EIS of the Yosemite Valley Plan is scheduled to be released thisspring. The Final EIS Yosemite Valley Plan is scheduled to be published latethis year.

Parties:Yosemite National ParkInterested Citizens

Appendix B: Case Studies 75

Contact:Yosemite NationalParkP.O. Box 577Yosemite, CA 95389(209) 372-0200www.nps.gov/yose/planning.htm

Type 2a (Agency-initiated Collaboratives, Inter-agency)

Case 3: Winter Visitor Use ManagementLocation: Yellowstone and Grand Teton National Parks and the John D.Rockefeller, Jr. Memorial Parkway are located in the northwest corner ofWyoming, extending into southwestern Montana and southeastern Idaho.

Objective: Development of a Winter Use Plan for the Yellowstone and GrandTeton National Parks and the John D. Rockefeller, Jr. Memorial Parkway.

What Triggered NEPA: A settlement agreement requiring the National ParkService to prepare a new winter use plan and a corresponding Environmen-tal Impact Statement.

Duration: 1997- present

Results/Status: 1997: As the result of a lawsuit filed by Fund for Animalsagainst the National Park Service, the National Park Service was required toprepare a new winter use plan and Environmental Impact Statement.

1997: The National Park Service invited the National Forest Service, thestates of Wyoming, Idaho and Montana, the Wyoming Counties of Teton andPark, Idaho County Fremont, and the Montana Counties of Gallatin andPark to act as cooperating agencies.

1998: A 90-day public scoping period began on the new winter use plan.During this scoping period 16 public meetings were held in major US cities(Salt Lake City, Minneapolis, Denver, and Washington D.C.). Over 15,000comments were received identifying the following issues: visitor use,wildlife use of groomed surfaces, wildlife displacement, air quality, snowmo-bile sound, impacts on local economies, and health and human safety.

1999: The Draft Environmental Impact Statement was released and commentclosed on December 15, 1999.

Parties:Grand Teton National Park U.S. Forest Service Yellowstone National Park State of WyomingState of Montana State of IdahoGallatin County, MT Park County, MTPark County, WY Teton County, WYFremont County, ID


ContactYellowstone Nation-al ParkP.O. Box 168Yellowstone Nation-al Park, WY 82190-0168(307) 344-7381www.nps.gov/planning/yell/winteruse

Type 2b (Agency-initiated Collaboratives, Multi-stakeholder)

Case 4: San Juan National Forest InitiativeLocation: San Juan National Forest (SJNF) is located in southwestern Col-orado. The SJNF includes three ranger districts, Colombine, Mancos-Dolores,and Pagosa, encompassing an area of almost 200,000 acres.

Objective: Revision of the Forest Plan, a plan which manages the forestresources. According to the National Forest Management Act, all nationalforests are required to revise their forest plans every 10-15 years in order tokeep current with changes in social interests, scientific data, and environ-mental concerns.

What Triggered NEPA: The Council on Environmental Quality requires fed-eral agencies to comply with NEPA in decision-making processes such asForest Plan Revisions.


Results/Status: 1995: The USFS, through advertisements in print and broad-cast media and mailings, asked local and regional citizens to join communitygroups in order to enhance public input regarding the forest plan revision. Inaddition, the USFS, in partnership with the Office of Community Develop-ment, held open houses providing more information on the communitystewardship approach to forest management.

1996: Three Community Study Groups (one for each district) met with theUSFS personnel and the Office of Community Development to discuss andclarify issues important to their district.

1997: To allow for more detailed discussions with the public on specificissues, the USFS and the Office of Community Development began announc-ing a more in-depth study to follow the community study groups. Thisphase included six topical working groups: wildlife, timber managementand fire, travel management and recreation, special management areas, spe-cial water concerns, and range and riparian areas.

1999: The USFS completed the Analysis of Management Situation (AMS) andreleased a notice of intent to complete a Draft Environmental Impact State-ment.

2000: Scoping for the DEIS closed in January. The DEIS is due out in spring2001.

Parties:SJNF Forest Service PersonnelOffice of Community Development, Fort Lewis CollegeInterested private citizens


Contact:Jim PowersForest PlannerSJNF 701 Caminodel Rio,Durango, CO 81301970-385-1212www.fs.fed.us/r2/sanjuan


Case 5: Sierra Nevada FrameworkLocation: The framework includes the Sequoia, Sierra, Stanislaus, Eldorado,Inyo, Tahoe, Plumas, Lassen, and Modoc National Forests, and the LakeTahoe Basin Management Unit in California. In addition, Region 5 (PSW) isworking with personnel from the Humboldt-Toiyabe NF in Region 4 toensure coordination and compatibility of management across administrativeboundaries.

Objective: To incorporate the latest scientific information into the manage-ment of the Sierra Nevada national forests through broad public and inter-governmental participation in natural resource planning.

What Triggered NEPA: The U.S. Forest Service began developing a long-term management plan for the declining California Spotted Owl habitat andother issues with a scheduled release of a draft EIS in 1996. However, withthe release of new scientific information in the Sierra Nevada Eco-systemProject (SNEP) report and a review by an empanelled Federal AdvisoryCommittee (FAC), the revised draft EIS was considered inadequate in its cur-rent form as either an owl or ecosystem management planning document.

Therefore in January 1998, in response to the FAC report and other infor-mation, the Forest Service and the PSW Research Station initiated a collabo-rative effort to incorporate new information into management of SierraNevada national forests. This effort, known as the Sierra Nevada Frameworkfor Conservation and Collaboration, incorporates the latest scientific infor-mation into national forest management through broad public and intergov-ernmental participation in natural resource planning.

The Sierra Nevada Forest Plan Amendment Environmental Impact State-ment (EIS) is one of several activities included in the Sierra Nevada Frame-work for Conservation and Collaboration. Related efforts are exploring bet-ter ways of working together on near-term projects and longer-termprograms with an emphasis on improved relationships and procedures toencourage better collaboration.

One such effort is the work of Forest Service personnel and staff fromsome of the 35 state and federal agencies, and representatives of county gov-ernment who are members of the California Biodiversity Council. This inter-agency group is providing advice and ideas on resource management and onimproving public involvement and interagency coordination throughout theSierra Nevada.

Duration: 1998 – present

Results/Status:1998: The Forest Service involved interested public in the process to updateforest plans before developing a proposed action and initiating a NEPA plan-ning process. A website included an electronic forum for public input.Between August 1998 and January 1999, over 60 public meetings and work-shops were held across California, involving some 1,500 people. About 3,300people sent in comments. Special efforts were made to involve AmericanIndian tribes in a government-to-government relationship, including consul-tation and tribal summits. Ideas from these various workshops and otheractivities helped the Forest Service develop a proposed action for updatingforest plans, and is influencing the development of the alternatives and thedraft EIS.


Contact:USDS Forest ServiceSierra NevadaFramework Project801 I StreetSacramento, CA95814Tel: 916-492-7554www.r5.fs.fed.us

1999: The Draft Environmental Impact Statement was released in early sum-mer beginning a 90 day public comment period. The Final EnvironmentalImpact Statement and Record of Decision are scheduled for completion inwinter of 2000.

Parties:Sequoia National Forest Sierra National ForestStanislaus National Forest Eldorado National ForestInyo National Forest Tahoe National ForestPlumas National Forest Lassen National ForestModoc National Forest California Biodiversity CouncilCounty Governments Tribal CommunitiesHumboldt -Toiyabe National Forest Yosemite National ParkSequoia/Kings Canyon National Park



Contact:Platte River EISOffice PO Box 250007 Mailcode PL – 100, Denver, CO 80225-0007(303) 445-2096www.platteriver.org


Case 6: Platte River Endangered Species PartnershipLocation: The Central Platte River Valley in Nebraska.

Objective: 1. To develop and implement a “recovery implementation program” to

improve and conserve habitat for four threatened and endangered speciesthat use the Platte River in Nebraska: the whooping crane, piping plover,least tern, and pallid sturgeon.

2. To enable existing and new water uses in the Platte River Basin to proceedwithout additional actions required (beyond the Program) for the fourspecies under the Endangered Species Act (ESA).

What Triggered NEPA: The evaluation of possible impacts to the environ-ment occurring as the result of the Recovery Implementation Program.


Results/Status: 1997: A Cooperative Agreement was signed by the Gover-nors of Wyoming, Colorado, and Nebraska, and the Department of Interiorto address endangered species issues affecting the Platte River Basin.

1998: Public scoping meetings began allowing the public to make commentson the Platte River Programmatic Environmental Impact Statement. A totalof 11 meetings were held (3 in Colorado and in Wyoming and 5 in Nebraska)beginning in February and ending in April.

1999: A Governance Committee is formed with members from the threestates, water users, environmental groups, and two federal agencies. Thisgroup is charged with implementing the Cooperative Agreement. The finalsummary of scoping input for the Platte River Programmatic EnvironmentalImpact Statement is released in August.

2000: Over the next 3 years, an evaluation will be conducted of the impactsof the proposed Program and a range of alternatives. At that point, the par-ties intend that a final Program will be selected and they will enter into anagreement for its implementation.

Parties:Department of Interior State of WyomingState of Nebraska State of ColoradoWyoming Water Uses National Audubon SocietyThe Platte River Trust Bureau of ReclamationNebraska Water Uses, Inc. Colorado Water UsersU.S. Fish and Wildlife Service BLM, Great PlainsEnvironmental Defense Fund


Case 7: Hanford Future Site Uses Working GroupLocation: The Hanford Nuclear Reservation is located in southeast Washing-ton State along the Columbia River.

Objective: Development of an array of future land use scenarios and toassess their implications for cleanup of the 560 square mile nuclear reserva-tion.

What Triggered NEPA: The need to develop a range of reasonable alterna-tives to accomplish the scope of the Hartford Cleanup Tri-Party Agreement.


Results/Status: 1990: An organizing committee (with representatives fromthe US DOE; US EPA; Washington State Department of Ecology; NationalPark Service; State of Oregon; and county, local, and tribal governments)authorized the three parties to the 30-year cleanup plan (DOE, EPA, andEcology) to select an independent facilitator to guide a multiparty consensusbuilding process as part of scoping the Hanford Remedial Action Environ-mental Impact Statement.

1992: The Hanford working group was convened for a series of 9 monthlymeetings to build a common base of information and to oversee the produc-tion of new area maps. The group’s report, “The Future of Hanford: Usesand Cleanup” outlined the group’s final recommendations on potentialfuture site use options and corresponding cleanup scenarios for the six majorgeographic areas that comprise the site. Nine consensus recommendationsrelated to the site’s cleanup and potential future uses have since proven use-ful for a numerous other planning efforts. The group’s report was submittedto the DOE as a formal scoping comment for the Hanford Remedial ActionEnvironmental Impact Statement (HRA-EIS).

1994: The Hanford Advisory Board (HAB) was established as an indepen-dent, non-partisan, and broadly representative body consisting of a balancedmix of the diverse interests that are affected by Hanford cleanup issues. Theprimary mission of the Board is to provide informed recommendations andadvice to relevant federal agencies on selected major policy issues related tothe cleanup of the Hanford site. The HAB endorsed and adopted the consen-sus recommendations in “The Future of Hanford.”

1996: A draft HRA-EIS was released and the DOE decided to expand theland use planning initiative into a Comprehensive Land Use Plan (CLUP).

1999: Revised Draft HRA-EIS and CLUP are released in April. The Final EISis released in September.

Parties:US Department of Energy US Department of InteriorUS Environmental Protection Agency State of OregonState of Washington Environmental GroupsTribal governments Citizen Interest GroupsLocal governments (counties and cities)


Contact:US DOE, RichlandOperations OfficeOffice of ExternalAffairsP.O. Box 550, A7-75Richland, Washing-ton 99352(509) 376-7501www.hanford.gov


Case 8: Puget Sound Electric Reliability PlanLocation: Puget Sound area of western Washington.

Objective: Build agreement on a set of alternatives to address growing win-ter peak power demands in the Puget Sound area.

What Triggered NEPA: Bonneville Power Administration(BPA) initiated theNEPA process to consider alternatives, ranging from increasing conservationto building new transmission systems. BPA was the lead agency, workingcooperatively with four local utilities.

Duration: 1991-1992

Results/Status: 30 participants came together as a Sounding Board represent-ing state and local government; environmental, energy, and civic interests;and consumer interests (including residential, business, and industry).Although the multiparty group was not charged with reaching consensus,consensus did emerge on a preferred alternative other than the one original-ly envisioned by the utilities.

This alternative was implemented and the Sounding Board received theBPA Administrator’s Award for Exceptional Public Service because of theintegrity and usefulness of the collaborative process, and broader publicinvolvement that occurred as a companion result.

Parties:Bonneville Power Administration Consumer InterestsLocal Utilities Environmental InterestsState and Local Governments


Contact:Nea Carroll, Triangle Associates(206) 583-0655

Type 3 (Collaboratives Initiated by Others)

Case 9: Grizzly Bear Citizen Management ProposalLocation: Selway-Bitterroot Mountains of Idaho and Montana. Experimentalarea where bears would be released includes 5,785 square miles of designat-ed wilderness and 25,140 square miles of public lands in central Idaho andwestern Montana within which the bears may be expected to roam.

Objective: A citizen-driven grizzly bear re-introduction process whichwould transfer significant responsibility for developing plans and policies tomanage bears in the Experimental area, where grizzly occupation is to be“accommodated” with human uses. If implemented, the Secretary of Interiorwould appoint a 15-member Citizen Management Committee includingseven individuals recommended by the governor of Idaho, five by the gover-nor of Montana, one by the Nez Perce Tribe, one from the US Forest Service,and one from US Fish & Wildlife Service (USFWS). Among state-recom-mended members must be a representative each from Idaho and Montana’sfish and wildlife agencies.

What Triggered NEPA: In 1993 the USFWS proposed an action to re-intro-duce grizzlies to the area, which triggered NEPA review. The US Fish &Wildlife Service listed the grizzly as a threatened species under the Endan-gered Species Act in 1975 and released a recovery plan for the species in1982. After a series of habitat studies the FWS identified the Selway-Bitter-root ecosystem as the only one of six potential recovery areas not alreadyoccupied by grizzlies.


Results/Status: 1994: A coalition of environmental, timber, and labor inter-ests began exploring alternatives to the agency-driven reintroductionprocess.

1997: FWS released a Draft EIS showing coalition-developed alternative asthe preferred alternative.

2000: Final EIS and Record of Decision expected to be released in spring ofthis year.

Parties:Defenders of WildlifeIntermountain Forestry Association National Wildlife FederationResource Organization on Timber SupplyThree Rivers Timber Mill


Contact:Tom FranceCounselNational WildlifeFederation(406) 721-6705http://www.nwf.org/grizzly/bitterro.html


Case 10: Flathead Common GroundLocation: Flathead National Forest, located in northwestern Montana, underthe western scarp of the Continental Divide, south of Glacier National Park.

Objective: The group’s three objectives are to: 1) improve wildlife securitythrough road closures; 2) protect and restore watershed and fisheriesresources; and 3) implement innovative vegetation management techniques.The aim is to meet these objectives by finding common ground with the tim-ber industry, motorized recreation interests and the conservation community,thereby reducing implementation time and increasing broad support forlarge-scale land management planning.

What Triggered NEPA:1994: The US Fish and Wildlife Service notified the Flathead National Forestthat existing road densities violated Section 9 of the Endangered Species Act(ESA). Road densities were so high, the agency argued, that grizzly bearswere being “taken” in the legal sense of the word under ESA. In response,the parties to Flathead Common Ground began figuring out a way to reduceroad densities acceptably. This effort prompted the Flathead National Forestto begin a management action, which in turn triggered NEPA.


Results/Status: 1997: Flathead Common Ground submitted a set of recom-mendations that were revised and included as Alternative 4 in the PaintEmery Resource Management Project Environmental Assessment. The initialproject focused on two grizzly bear management sub-units east of the Hun-gry Horse Reservoir.

1999: Comment period closed on March 16 and the deciding official expectedto make a decision in early spring. Currently the group is finalizing a secondset of recommendations, dubbed “Flathead Common Ground II,” which willappear when the Flathead Forest produces an Environmental Assessment onthe Big Creek Area.

Parties: The following groups attended at least one meeting. Not all of thesegroups approved of or participated in decisions. Some individuals participat-ed as well.

Montanans for Multiple Use Office of Senator Conrad BurnsWeyerhaeuser Corporation Flathead AudubonFlathead National Forest Artemis Common GroundFlathead Wildlife Stoltze Land and Lumber Co.Economic Policy Center Plum Creek Timber Co.Intermountain Forest Industry Assn. Montana Fish, Wildlife, & ParksCoalition for Canyon Preservation Defenders of WildlifeMontana Wilderness Association Great Bear FoundationSwan View Coalition National Wildlife FederationTrout Unlimited Montana Logging Association


Contact:Greg Schildwachter,Ph.D.Intermountain For-est Industry Assn.200 E. PineMissoula, MT 59802406-542-1220 [email protected]


Case 11: Quincy Library GroupLocation: Three northeastern California national forests (Lassen, Plumas, andparts of Tahoe, an area encompassing 2.5 million acres). The collaborativegroup met in the town of Quincy’s library and took on the name “QuincyLibrary Group (QLG).”

Objective: The Quincy Library Group approaches the inter-dependent goalsof forest health and community stability from different angles, because itbelieves that sustainable resource management must have a sound technicalfoundation, a broad political base, and strong local participation.

What Triggered NEPA: Amendments to the Quincy Library Group ForestRecovery and Economic Stability Act of 1997 (H.R. 858) to require NEPAreview.

Duration: 1992-present

Results/Status: 1993: QLG completed 5-year interim forest management planfor the Feather River Watershed, called the “Community Stability Proposal.”

1994: QLG took proposal to DC and presented it to USFS Chief, Congression-al delegates, and the Undersecretary of Agriculture. USFS allocated $1 mil-lion to implement the plan and US Secretary of Agriculture pledged an addi-tional $4.7 million for programs such as fuel reduction and watershedrestoration.

1997: Frustrated by perceived lack of progress by the USFS, QLG lobbied USCongressman Wally Herger (R-CA) to introduce the proposal as a bill (H.R.858) to congress. The bill was passed by the House after it was broughtunder compliance with NEPA and the National Forest Management Act(NFMA).

1998: The bill was passed by the Senate as part of the Omnibus Appropria-tions Bill, becoming the Herger-Feinstein Quincy Library Group ForestRecovery Act of 1998.

1999: The USFS completed a Draft Environmental Impact Statement andclosed comment on the DEIS in August. The FEIS was released in lateAugust. QLG appealed the Record of Decision. Although QLG supported theFEIS choice of alternative 2, it opposed the inclusion of mitigation measuresfor spotted owl habitat. QLG stated that the mitigation would prevent imple-mentation of the Pilot Project as intended by Congress and as described inthe FEIS.

Parties: 175 participants, including 30 core members representing the follow-ing interests:

Plumas County Sierra Pacific Industries Burney Forest ProductsUniv. of California—Cooperative Extension Lassen CountyWestern Council of Industrial Workers Siskiyou Plumas LumberSierra County School Board Friends of Plumas WildernessCalifornia Sport Fishing Protection Alliance Collins Pine CompanySierra County Conservation Club II Sierra CountyRoney Land & Cattle Company Mitchell Family LoggingCalif. Women in Timber, Quincy Chapter Clover LoggingPew Logging and Lumber Company


Contact:www.qlg.org


Notes

87Appendix C: Supporting Documents

1. BLM Training Course Information..................................................................88

2. NEPA and Federal Land Planning: A Checklist of Strategies from the Montana Consensus Council .............................................89

3. MOU between BLM, USFS, and Montana Consensus Council, 12/14/98..............................................................................90

4. Description of Montana Consensus Council Workshop on Negotiation and Consensus-building Skills..............................95

5. Memo from George Frampton, Acting Chair CEQ, 7/28/99......................97

6. Letter from BLM, USFS, and NPS to Western Governors’ Association and Statement Clarifying Cooperating and Joint Lead Agency Provisions ...............................................99

Appendix C

Supporting Documents

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Item #1Community-Based Partnerships and Ecosystems for a Healthy Environment Course No. 1730-31, Bureau of Land Management National Training Center

9828 N. 31st Ave., Phoenix, AZ 85051Contact 602-906-5669 or email [email protected]

This course is currently being presented to citizens’ groups, local government officials, land man-agement agencies, and industry personnel across the country. It is a three-day course with severalinstructors. It is available to anyone, and the presenters will travel to the site location. Currenttuition is $800.

The presenters make it very clear that this is not the new “flavor of the month” government pro-gram. This workshop is a grass-roots effort to encourage agency personnel to learn about their“new role at the community level.” The workshop helps agency personnel (and citizens) gain theknowledge and tools to use collaborative processes to make land management decisions. It is not atop-down approach. In fact it was stated that with regard to using community based partnerships:“The ingenuity and creativity of people on all sides is being released towards finding new solu-tions. The change may be a fundamental shift in society itself. A shift led not by government, butone which government must redesign itself around.”

Objectives:1. Recognize opportunities for partnerships. 2. Formulate a shared vision for citizens and government working together. 3. Develop an effective partnering process. 4. Discover how to cultivate, motivate and sustain partnering relationships. 5. Participate in the partnering process by:

• Understanding community structure and dynamics• Determining who is affected by an issue and how to include them• Understanding behavior relative to partnering - • Building capacity at the community level

Desired Outcomes of Course: 1. Shift responsibility for land stewardship back to people and industry and out of the hands of

the government.2. More effectively implement land stewardship efforts through people’s ethics rather than

through government enforcement. 3. Expand land stewardship ethics through all of nature and to whole natural systems.

The desired outcomes are meant to help achieve a move towards achieving the ideal state of “pro-ductive harmony” as defined in NEPA.

The course was designed and developed cooperatively By: BLM, USDA Forest Service, US Fishand Wildlife Service, National Park Service, The Nature Conservancy, Natural Resources Conserva-tion Service, and San Bernardino National Forest Association.


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Key Project Steps Collaborative Possibilities

Project Conception � Consult an experienced facilitator, mediator, or consensus-builder to helpdetermine what type of collaboration may be appropriate

� If some type of collaboration may be appropriate, include resources (time,money, and staff) in your project plan and budgets

Pre-project Analysis � Use an impartial third party to assess the issue, situation, or conflict� Identify parties, issues, and options on how to proceed

Develop Proposed Action � Consult stakeholders — citizens and other officials — in developing a proposed action; seek agreement on proposed action

� Interview parties one-on-one; convene stakeholder groups; convene a broad-based, multi-party group

� Foster mutual education through joint fact finding and exchanginginformation

Scoping � Consider different processes for gathering public input and advice (publicmeetings, open houses, surveys, stakeholder meetings, study circles, etc.)

� Use impartial facilitator to convene and manage large, controversial public meetings

Validate the Issues � Based on the public input and advice, consult stakeholders to foster a common understanding of the NEPA significant issues

Develop Alternatives � Convene a working group of stakeholders to develop alternatives� Encourage citizens and other stakeholders to develop their own alternative� Use stakeholders as a sounding board to ensure that the range of alternatives

responds to NEPA issues and unresolved issues

Identify Preferred Alternatives � Use expert panels and stakeholder groups to help analyze alternatives� Use agreed-upon criteria to evaluate alternatives� Clarify the distinction between facts (science) and values (goals or desired

future conditions)

Analyze EA or DEIS Public Comments � Convene a working group of stakeholders to review public comments, clarify dominant themes, validate or revise NEPA issues, and identify criteria for the selected alternative

Select Alternative � Before the responsible official announces the selected alternative, he/she may consult stakeholders to confirm decision and rationale

Appeal � Resolve outstanding issues through informal, non-adversarial processes ofnegotiation and mediation

Litigation � Consult Department of Justice and Office of the General Counsel� Seek opportunities for settlement negotiations, mediation, and/or arbitration

Post Decision � Convene a working group to monitor and evaluate implementation, and tosuggest appropriate changes to the plan of action

Appendix C: Supporting Documents

NEPA and Federal Land Planning: A Checklist of Collaborative Strategies

Copyright 1999 Montana Consensus Council

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Item #4

Building Agreement on Natural Resources and Public Policy

A Two-day Workshop onStrategies to Effectively Engage Citizens and Officials

______________________________________

Presented byWestern Consensus CouncilConsensus Building Institute

What you will learn ...

Strategies to shape wise, stable, and popular public decisions

• Alternative approaches to public involvement and public dispute resolution• How to tailor a public involvement or dispute resolution process to the situation• When to engage in a collaborative process

How to effectively participate in a collaborative process, including:

• Using mutual gains negotiation• Representing your organization

How to design and manage effective processes, including:

• The importance of ground rules — that is, agreeing on the desired outcomes, tasks, information needs,decision-making process, and media relations

• Clarifying the responsibilities of the sponsor and/or decision makers• Ways to develop a common understanding of the issues and concerns• Techniques for generating options and building agreement• Managing effective meetings• How to deal with difficult people• Strategies to implement, monitor, and evaluate the agreement or outcome

Instructors

Matthew McKinney is the Director of the Montana Consensus Council and a founding member of the Western Consensus Council.Both organizations promote effective public policy through public involvement and consensus-building strategies. Mr. McKinneyhas facilitated and mediated many public policy forums, helping citizens and officials build agreement on fish and wildlife manage-ment, water policy, public land management, state superfund legislation, growth management, and county land-use planning. McK-inney has taught natural resource policy and public dispute resolution in seminars and college courses.

Patrick Field is vice-president of the Consensus Building Institute, based in Cambridge, Massachusetts. He has assessed, facilitated,and mediated numerous public disputes over air quality, superfund cleanup, land use, and public health. Mr. Field has providedtraining to public and private organizations throughout North America. He co-authored, with Dr. Larry Susskind, Dealing with anAngry Public. CBI is a widely recognized not-for-profit organization dedicated to improving people’s ability to shape public deci-sions that are fair, wise, and stable.

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About the Workshop

This two-day workshop combines the extensive resources on negotiation and consensus building at the Harvard-MITpublic disputes program with the wealth of knowledge and western experience of trainers based in the western UnitedStates. It uses a combination of lecture, negotiation simulations, case studies, and discussion. The course is intended tobe intensive, interactive, and enjoyable. It requires active involvement of the participants.

The workshop is well suited for county, state, and federal officials and agencies who may play a convening role in aconsensus building process and for potential participants such as advocacy organizations, citizen groups, and business-es. We strongly encourage joint training for individuals and organizations who may be about to enter a negotiation orcollaborative process, are in the midst of a negotiation, or are at an impasse.

In addition to this two-day workshop, we offer half-day consultations, five-day seminars and institutes for college orcontinuing education credit, and 15-week academic courses. We can also teach custom-designed seminars and preparetailored simulations on specific issues distinctive to the participants needs and interests. Examples of all our education-al materials are available upon request.

Responsibilities of WCC and CBI

The WCC and CBI agree to provide:

1. Two experienced trainers. The trainers have direct experience in facilitating consensus building processes aswell as providing training courses to individuals and organizations across the U.S. and Canada. The trainerstime will be paid for by foundation grants.

2. A master notebook of all course materials suitable for copying. The notebook will include copyrighted over-heads, negotiation simulations, case studies, and readings.

3. Evaluation forms. We will collect these forms at the end of the course, summarize the results, and provide acopy of the summary to the hosting organization.

Responsibilities of the Hosting Organization

1. The hosting organization is responsible for all logistical and organizational arrangements, including:

A. Marketing the workshop, including designing, printing and distributing promotional materials.B. Ensuring adequate participation.C. Arranging for facilities at which the workshop will be held. The trainers will provide advice regard-

ing the room arrangements and audiovisual equipment needed.D. Managing all workshop registrations.E. Providing all copying and compilation of course materials.F. Receiving, disbursing, and accounting for all funds associated with the workshop.G. Providing refreshment at breaks, lunches, dinners, and any accommodations necessary.H. Providing staff during the workshop to take registration, distribute materials, serve refreshments,

assist at an information table, and otherwise support the workshop.

2. The hosting organization agrees to pay the travel and lodging expenses (travel, car rental, lodging, meals, andso on) incurred by the two trainers. The cost of the trainers time, as mentioned above, is covered by founda-tion grants.

3. As a general matter, there is no limit on the number of people that may participate in a workshop. However,seminars of approximately 30 participants provide the best size for one-on-one teaching as well as interactionwith a number of other participants. Because our courses depend on interactive negotiation simulations, cours-es with fewer than 15 participants do not gain the full experience of comparing their multi-party negotiationresults to others.



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Notes

O’Connor Center for the Rocky Mountain WestMilwaukee Station

The University of MontanaMissoula, MT 59812

Phone: (406) 243-7700Fax: (406) 243-7709

Web Page: www.crmw.orgEmail: [email protected]

Institute for Environment and Natural ResourcesUniversity of Wyoming

PO Box 3971Laramie, WY 82071-3971

Phone: (307) 766-5080 Fax: (307) 766-5099

Web Page: www.uwyo.edu/enr/ienr.htm