Reclaiming NEPA's Potential: Can Collaborative Processes Improve Environmental Decision Making?
 

Executive Summary

 

This book presents the proceedings of a workshop entitled “Communication and Consensus: Strategies for Fulfilling the Nation’s Environmental Policy.”[1]  The workshop, held from March 20-23, 1999, was co-hosted by the Institute for Environment and Natural Resources (IENR) at The University of Wyoming and the Center for the Rocky Mountain West (CRMW) at The University of Montana.  The President’s Council on Environmental Quality had previously been commissioned both IENR and CRMW to pursue projects that could lead to improved implementation of the National Environmental Policy Act (NEPA).  One key element in the IENR and CRMW efforts, and the main theme of the workshop, was to explore ways to incorporate collaborative decision-making approaches into the NEPA implementation framework currently used by federal agencies. 

 

The workshop provided a structured forum for the exchange of ideas and debate on this theme.  Thirty-six invited participants, representing varied perspectives, brought to the table their extensive experience with collaborative process and past and current NEPA practice.  Workshop discussion focused on four key issues: (1) NEPA implementation history and current NEPA issues; (2) existing models for using collaboration or otherwise improving public involvement under NEPA; (3) barriers to integrating collaboration models under NEPA; and (4) strategies for integrating consensus and collaboration models under NEPA.  Although there was general agreement on most of the issues considered at the workshop and presented in this proceedings book, unresolved differences of opinion emerged on a few key issues.  We have attempted to fairly present these differences of opinion and provide accurate descriptions of the participants’ diverse positions.

 

 

SUMMARY WORKSHOP OBSERVATIONS AND CONCLUSIONS

 

1.0  NEPA REVIEW

 

The NEPA Review Workgroup discussed NEPA’s origins and its implementation history, with a particular focus on NEPA Section 101’s provisions for broad, comprehensive environmental protection.  The group concluded that NEPA implementation over the past 30 years has generally gravitated toward a narrow, procedural interpretation of the original Congressional mandate.  Workgroup discussion generated several other observations and conclusions.

 

¨      Decisions and actions of the executive, legislative, and judicial branches of the federal government have shaped NEPA implementation and set guiding precedents, often emphasizing procedural compliance rather than comprehensive protection measures.

 

¨      Several “drivers of change” are currently influencing federal agencies’ perception of NEPA compliance and implementation.  Influencing factors include frequent litigation, shrinking resources, changing Congressional mandates, the devolution of decision making to state and local levels, and increased public interest in decision-making participation.

 

¨      In response to EIS litigation, federal agencies have increasingly sought to produce “litigation-proof” documents.  This defensive action tends to discourage experimental NEPA processes involving collaboration or larger scale analysis.[2]

 

¨      Recent efforts to change and improve NEPA implementation include legislation to limit the applicability of NEPA on specific federal projects; the 1997 CEQ NEPA effectiveness study; increased federal agency cooperation; a broader scope of environmental decision making; and Presidential use of NEPA as a grant of authority to preserve important aspects of our national heritage.

 

¨      Because NEPA’s Section 101 goals have not been incorporated into strategies for solving larger interagency or intergovernmental issues, these issues have rarely been subjected to thorough public discussion and environmental analysis.  There is an opportunity for federal agencies to involve the public and other affected agencies early in the NEPA process and for agencies to use the NEPA process for strategic planning in broad geographic and ecological regions.

 

 

2.0  COLLABORATIVE MODELS

 

The Collaborative Models Workgroup initiated their discussion with a review of how opportunities for public participation have been incorporated into the NEPA process.  Their review considered the evolution of public participation strategies, up to and including the recent advent of various forms of collaborative decision making.  The group’s conclusions and observations include the following:

 

¨      During the two decades following NEPA’s passage, the public exercised their new right to participate in agency decision-making processes through public meetings and formal comment opportunities.  Some people, dissatisfied with NEPA process outcomes, brought their concerns to the courts.  In many instances, NEPA litigation successfully established agency accountability and responsibility.  However, litigation has also resulted, at times, in a perception of “decision-making gridlock.”

 

¨      The public began to call for greater public involvement in governance during the 1980s and 1990s.  Collaborative approaches, some proposed, 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.

 

¨      Over the past decade, individuals, agencies, and governments have experimented with collaboration, both within and outside the NEPA process.  Many collaborative approaches are characterized by volunteerism, inclusiveness, direct face-to-face communication among parties, and flexible designs that respond to changing circumstances and incorporate newly interested players as a project develops.  Some people undertaking new processes believe collaborative approaches offer significant potential benefits: to reduce costs of decision making and litigation; to better utilize local knowledge and scientific expertise; and to marry technical and value-oriented debates in coordinated decision processes.

 

¨      Other recent innovations include the reintroduction of market mechanisms into some forms of environmental management, the rapid proliferation of decision-making coalitions, and agency experimentation with greater public involvement in the NEPA process.

 

¨      The workgroup laid out the basic NEPA process steps and examined roles that the public usually plays in each step.  Three main types of public participation and collaboration in NEPA projects were identified:  (1) traditional public involvement,  (2) agency-initiated collaboratives, and (3) collaboration initiated by other interested parties.

 

Much remains to be learned about new approaches to public participation in decision making, particularly in NEPA-related decisions.  The workgroup identified several important questions and concerns about infusing collaborative decision-making methods into NEPA:  (1) To what extent can new collaborative processes supplement traditional decision-making methods? (2) Will these collaborative processes satisfy current democratic notions of full and balanced representation? and (3) What conditions are necessary for collaborative approaches to succeed and what conditions indicate that such approaches will not work?  Chapter III includes a complete discussion of this group’s conclusions and concerns.

 

 

3.0  BARRIERS AND STRATEGIES

 

At the beginning of the workshop, the Barriers Workgroup and the Strategies Workgroup discussed their respective issues independently.  It soon became apparent that the two groups needed to coordinate their thinking.  Accordingly, the groups spent much of the last day at the workshop in joint session.  The combined report of these two workgroups is presented in Chapter IV.  The key observations and conclusions of the combined workgroups included the following:

 

¨      In considering barriers to the use of collaborative decision making in NEPA implementation, participants identified four general categories: political, legal, administrative, and financial.  They further identified specific critical barriers within these categories and directed strategies for overcoming these barriers.  Each of the identified barriers and suggested strategies are listed and discussed in Chapter IV, and a summary listing is presented in Table IV-1.

 

¨      Currently, the federal government does not provide effective leadership to encourage the use of more flexible applications of NEPA.  Administrative and CEQ failure to promote the use of collaborative approaches to NEPA implementation has resulted in Congressional failure to provide financial support for collaborative initiatives.

 

¨      One of the critical barriers to supplementing the NEPA process with collaborative approaches is the lack of comprehensive documentation and analysis.  Participants concluded that a series of pilot projects could test and demonstrate the effective use of collaboration.  Pilot project evaluation and analysis could also fill existing knowledge gaps.  These projects would use collaborative processes at the earliest stages of NEPA projects to foster community involvement, invite a diversity of views, and produce well-supported, environmentally-sound decisions.  Although participants were not in agreement about how pilot projects should be promoted and implemented, there was strong support for further action on this suggestion.