By Tom King
Over the last couple of decades I’ve written four textbooks for Altamira Press (one now in its 3rd edition) dealing with aspects of cultural resource management (CRM) and its kissing cousin environmental impact assessment (EIA). CRM involves managing the impacts of the modern world on those aspects of the environment that are held to have cultural value – including things like old buildings, archaeological sites, and indigenous spiritual places, but lots of other pieces of the world around us as well. EIA addresses the same kinds of impacts on the entire environment.
We’re about to inaugurate a new national administration that is rather explicitly “green,” so the future should be rosy for CRM and EIA, but I’m afraid this is not necessarily so at all.
What’s Wrong With CRM and EIA
The problem – in my view – is this: the practices of CRM and EIA have become so corrupted that they no longer do what they’re supposed to do. They no longer give decision makers a fair picture of what the environmental impacts may be of decisions they’re getting ready to make. Instead, they often lull government agencies and the public alike into thinking that all’s well with a proposed project, while serious environmental impacts are swept under the rug. This may be a more serious problem with “green” projects like solar arrays and wind farms than with other kinds of projects, because of the tacit assumption that because these projects are “good,” they cannot possibly do anything “bad.” But a wind farm can destroy the view from a tribal spiritual site just as readily as a coal mine can, and a solar array can interrupt the spread of sunlight over desert plants. These kinds of impacts need to be considered in deciding whether and how to proceed with a project – not necessarily to stop the project, but to allow it to be designed so as to minimize the damage.
Current law and regulations – the stuff I’ve written about at such length in my textbooks – no longer does a fair job of ensuring that such impacts are taken into account. There are four big problem areas.
- The consulting firms that do EIA and CRM work have come to understand themselves to be parts of their clients’ planning teams, and their clients are almost invariably the proponents of the very projects whose impacts they’re analyzing. Their analyses, results, and interactions with others (regulators, the public, etc.) cannot help but be influenced by this relationship, and they are.
- The federal agencies that are responsible for complying with the National Environmental Policy Act (NEPA) and section 106 of the National Historic Preservation Act (NHPA) have become proponents not only for their own projects but for those planned by supplicants for federal assistance and permits. These agencies have by and large come to regard EIA and CRM as ways of “clearing” projects for implementation by showing that their environmental impacts are negligible, regardless of the relationship of the projects’ actual effects.
- The agencies that are supposed to oversee EIA and CRM to keep the systems honest no longer do so. The Council on Environmental Quality (CEQ), the Advisory Council on Historic Preservation (ACHP), and other ostensible overseers and standard setters have become obsessed with “streamlining” their review systems, and no longer provide serious, critical oversight. A few such agencies – notably in my experience the State Historic Preservation Officers (SHPOs) – can vehemently defend their own prerogatives and promote rigid adherence to technical standards, but seem impervious to larger policy matters.
- The EIA/CRM review systems have become largely impervious to the public. They are convoluted; they are laden with esoteric concepts and jargon; they provide limited opportunities for public “input” and if someone from the “outside” does express concerns, the systems provide no guarantee whatever that they will be thoughtfully considered. Quite the contrary; the systems are neatly set up so that agencies can, for the most part, simply inform people of plans, solicit their input, and then ignore whatever they get.
We EIA and CRM practitioners have largely accepted these attributes of contemporary EIA and CRM as simply “the way things are” – to such an extent that many of us don’t even think of them as problems. We are, we think, supposed to be public relations specialists, making our clients’ projects look good whether they are or not. This has to change; there is simply no reason for the public to support a system of “impact assessment” that permits impacts to be ignored.
What’s To Be Done?
The problems I’ve just outlined spring from three underlying factors, expressed in the evolution of the EIA and CRM systems over the forty years or so since they were put in place by NEPA and NHPA.
- Although the statutes lay out national policies favoring giving the environment and cultural resources a fair shake, neither the laws nor the regulations that have sprung from them provide clear direction about applying such policies. We are told in great detail about the procedures to employ, but little or nothing about how to make these procedures accomplish anything.
- The statutes, and to a considerable extent the regulations, are painfully naïve. They assume integrity and vision on the part of federal agencies. However much we might wish it to be otherwise, such assumptions are never safe.
- Public involvement has never been well provided for under NEPA, and in recent years it has become largely a laughing matter. The CRM regulations implementing Section 106 of NHPA are better on paper, but in practice, they are today little better than the NEPA regulations. Concerned members of the public can comment on things, but actually negotiating with project proponents about how to minimize impacts has become largely a thing of the past even under Section 106 – unless one is a State Historic Preservation Officer.
The good news, though, is that such problems can be fixed. In various contexts, I’ve offered the following recommendations to the new administration:
The President should issue an executive order directing all federal agencies to revise their procedures for compliance with laws like NEPA and NHPA to ensure in principle that impact assessments done and reports prepared are unbiased either for or against whatever is being reviewed. Some specific ways to make this happen include:
a. Doing impact analyses of all kinds using consultants who have no economic or other links to project proponents
b. Providing for thorough independent review of any impact assessment work carried out by or on behalf of project proponents.
c. Giving thorough analytic consideration to alternative ways of achieving a project’s purposes, notably including alternatives proposed by members of the public.
d. Providing for real, face-to-face, back-and-forth consultation with interested members of the public, aimed at reaching agreements about whether and how to proceed with a selected alternative – though always with provision for making a decision in the absence of agreement.
e. Paying attention to the full range of potential effects – direct effects, indirect effects, and very importantly, cumulative effects.
f. Addressing not only impacts that can be quantified but those that can’t – for example, many kinds of effects on cultural and spiritual values in the environment.
g. Coordinating analyses and consultations under all the various relevant laws – NEPA, NHPA, the Endangered Species Act, and so on, to allow all concerned to understand the synergistic relationships among impacts.
h. Providing training for all involved in EIA and CRM, and promoting cooperative arrangements to maintain high-quality interdisciplinary research and consultative standards.
i. Regular performance monitoring so that corrections can be made in analyses and consultations going awry.
j. Finally, using impact analysis results when decisions are actually made. Agencies should have to be able to show that their decisions are consistent with the policies adopted by Congress in enacting NEPA, NHPA, and the other environmental laws, or explain in detail why any inconsistencies exist.
The same executive order, or another, could direct the oversight agencies – the Council on Environmental Quality, Advisory Council on Historic Preservation, and others -- to rework their regulations to make them consistent with one another, simple enough for citizens to understand and work with, transparent to public scrutiny, and encouraging to full public involvement in review processes. To the extent these goals couldn’t be achieved through regulatory changes, the agencies could propose changes to the laws themselves (which are almost certainly needed, but this ought not be pursued until regulatory changes have been tried.
There’s plenty more that could be done, but these relatively modest steps would, I think, take us a long way toward putting a functional EIA/CRM system in place. And we should take these steps, quickly – before we find our broken system of impact assessment creating unnecessary conflicts between “green” developments and preserving the quality of our natural and cultural environment.
Tom King is the author of the Altamira Press textbooks Cultural Resource Laws and Practice, Federal Planning and Historic Places, Thinking About Cultural Resource Management, and Places That Count; he is also the co-author of Amelia Earhart’s Shoes. His latest book, elaborating on the points in this discussion, is Our Unprotected Heritage, published by Left Coast Press.