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FY 2008 ECR Policy Report to OMB-CEQ (Morris K Udall Foundation)

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1
FY 2008 ECR Policy Report to OMB-CEQ
On November 28, 2005, the Director of the Office of Management and Budget (OMB), and the
Chairman of the President's Council on Environmental Quality (CEQ) issued a policy
memorandum on environmental conflict resolution (ECR).
The memorandum requires annual reporting by departments and agencies to OMB and CEQ on
progress made each year. This joint policy statement directs agencies to increase the effective
use and their institutional capacity for ECR and collaborative problem solving.
ECR is defined in Section 2 of the memorandum as:
“third-party assisted conflict resolution and collaborative problem solving in the context of
environmental, public lands, or natural resources issues or conflicts, including matters
related to energy, transportation, and land use. The term “ECR” encompasses a range of
assisted negotiation processes and applications. These processes directly engage
affected interests and agency decision makers in conflict resolution and collaborative
problem solving. Multi-issue, multi-party environmental disputes or controversies often
take place in high conflict and low trust settings, where the assistance of impartial
facilitators or mediators can be instrumental to reaching agreement and resolution. Such
disputes range broadly from administrative adjudicatory disputes, to civil judicial disputes,
policy/rule disputes, intra- and interagency disputes, as well as disputes with non-federal
persons/entities. ECR processes can be applied during a policy development or planning
process, or in the context of rulemaking, administrative decision making, enforcement, or
litigation and can include conflicts between federal, state, local, tribal, public interest
organizations, citizens groups and business and industry where a federal agency has
ultimate responsibility for decision-making.
While ECR refers specifically to collaborative processes aided by third-party neutrals,
there is a broad array of partnerships, cooperative arrangements, and unassisted
negotiations that federal agencies enter into with non-federal entities to manage and
implement agency programs and activities. The Basic Principles for Agency Engagement
in Environmental Conflict Resolution and Collaborative Problem Solving presented in
Attachment A (of the OMB/CEQ ECR Policy Memo) and this policy apply generally to
ECR and collaborative problem solving. This policy recognizes the importance and value
of the appropriate use of all types of ADR and collaborative problem solving.”
The report format below is provided for the third year of reporting in accordance with this memo
for activities in FY 2008.
The report deadline is January 15, 2009.
We understand that collecting this information may be challenging; however, after compiling
previous reports, the departments and agencies can collect this data to the best of their abilities.
The 2008 report, along with previous reports, will establish a useful baseline for your
department or agency, and collect some information that can be aggregated across agencies.
Departments should submit a single report that includes ECR information from the agencies and
other entities within the department. The information in your report will become part of an
analysis of all FY 2008 ECR reports. You may be contacted for the purpose of clarifying
information in your report. For your reference, copies of the analysis of FY 2006 and FY 2007
ECR reports will be available at www.ecr.gov.
2
Name of Department/Agency responding:
________________________
Name and Title/Position of person responding:
________________________
Division/Office of person responding:
________________________
Contact information (phone/email):
________________________
Date this report is being submitted:
________________________
U.S. Department of Transportation
Judith Kaleta, Assistant General Counsel for General Law
Office of the General Counsel
202-366-4557; judy.kaleta@dot.gov
March 3, 2009
3
Section 1: Capacity and Progress
1. Describe steps taken by your department/agency to build programmatic/institutional
capacity for ECR in 2008, including progress made since 2007. If no steps were
taken, please indicate why not.
[Please refer to the mechanisms and strategies presented in Section 5 of the OMB-
CEQ ECR Policy Memo, including but not restricted to any efforts to a) integrate
ECR objectives into agency mission statements, Government Performance and
Results Act goals, and strategic planning; b) assure that your agency’s infrastructure
supports ECR; c) invest in support or programs; and d) focus on accountable
performance and achievement. You are encouraged to attach policy statements,
plans and other relevant documents.]
DOT's strategic plan for Fiscal Years 2003-2011 includes an Environmental Stewardship Strategic
Goal to promote transportation solutions that enhance communities and protect the natural and built
environment. One of the strategies the strategic plan lays out to improve transportation
infrastructure reviews specifically mentions the ECR policy memo. It states: "Use constructive and
timely approaches to resolving conflicts when they arise over the use, conservation, and restoration
of the environment, natural resources and public lands consistent with the August 2004, Executive
Order on Cooperative Conservation and the accompanying Memorandum on Environmental
Conflict Resolution." This strategy supports one of the outcomes of the strategic goal, "streamlined
environmental review of transportation infrastructure projects."
Several operating administrations within the Department have also continued to take steps to
integrate ECR objectives into their missions. The Pipeline and Hazardous Materials Safety
Administration (PHMSA) has a strategic initiative under its Environmental Stewardship goal to
establish safe land use standards for existing pipelines, new pipeline construction and development
in proximity to populated areas. PHMSA works cooperatively with stakeholders to develop
standards; this process has not yet risen to an environmental conflict. PHMSA also uses extensive
outreach to get public comment during its rulemaking processes, which has been effective in
resolving conflicts. PHMSA also engages in various environmental reviews under the National
Environmental Policy Act (NEPA). PHMSA's draft NEPA Order (under review at CEQ) describes
ECR and encourages its use.
The Federal Highway Administration (FHWA) Strategic Plan includes a core goal of collaboration,
which incorporates ECR objectives by recognizing the need to partner with other federal agencies,
tribes, stakeholders, and the public to achieve its goals.
The Maritime Administration (MARAD) works with the shipbuilding industry to find technological
solutions to environmental problems associated with the construction and design of ships, and
encourages cooperative research programs in regional and international bodies that are working
toward these solutions. MARAD recently realigned many of its functions to revitalize its role as an
industry facilitator and to bring greater focus to the areas of environment and safety.
The Federal Aviation Administration (FAA) is taking positive steps to incorporate ECR into its
programs. In August of 2008, the FAA Associate Chief Counsel for ADR presented at the Airports
and Environmental Law Conference, outlining the purpose and need for ECR. The presentation,
followed by a workshop practicum, provided headquarters and regional attorneys the background
and information they will need to move forward with ECR. FAA also has had a positive commitment
to ECR issues in its Airport and Environmental Law Division, which routinely is invited to
conferences on the subject.
4
Section 2: Challenges
2. Indicate the extent to which each of the items below present challenges or barriers
that your department/agency has encountered in advancing the appropriate and
effective use of ECR.
Extent of challenge/barrier
Major Minor
Not a
challenge/
barrier
N/A
Check only one
a) Lack of staff expertise to participate in ECR
b) Lack of staff availability to engage in ECR
c) Lack of party capacity to engage in ECR
d) Limited or no funds for facilitators and mediators
e) Lack of travel costs for your own or other federal agency staff
f) Lack of travel costs for non-federal parties
g) Reluctance of federal decision makers to support or participate
h) Reluctance of other federal agencies to participate
i) Reluctance of other non-federal parties to participate
j) Contracting barriers/inefficiencies
k) Lack of resources for staff capacity building
l) Lack of personnel incentives
m) Lack of budget incentives
n) Lack of access to qualified mediators and facilitators
o) Perception of time and resource intensive nature of ECR
p) Uncertainty about whether to engage in ECR
q) Uncertainty about the net benefits of ECR
r) Other(s) (please specify): __________________________
s) No barriers (please explain): __________________________
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
5
Section 3: ECR Use
3. Describe the level of ECR use within your department/agency in FY 2008 by completing the table below. [Please refer to
the definition of ECR from the OMB-CEQ memo as presented on page one of this template. An ECR “case or project” is an
instance of neutral third party involvement to assist parties in reaching agreement or resolving a dispute for a particular matter. In
order not to double count processes, please select one category per case for decision making forums and for ECR applications.]
Decision making forum that was addressing
the issues when ECR was initiated:
Of the total FY 2008 ECR
cases indicate how many
your agency/department
Cases or
projects in
progress
1
Completed
Cases or
projects
2
Total
FY 2008
ECR Cases
3
Federal
agency
decision
Administrative
proceedings
/appeals
Judicial
proceedings
Other (specify)
Sponsored
4
Participated
in but did not
sponsor
5
Context for ECR Applications:
Policy development
_____ _____ _____ _____ _____ _____ _____ _____ _____
Planning
_____ _____ _____ _____ _____ _____ _____ _____ _____
Siting and construction
_____ _____ _____ _____ _____ _____ _____ _____ _____
Rulemaking
_____ _____ _____ _____ _____ _____ _____ _____ _____
License and permit issuance
_____ _____ _____ _____ _____ _____ _____ _____ _____
Compliance and enforcement action
_____ _____ _____ _____ _____ _____ _____ _____ _____
Implementation/monitoring agreements
_____ _____ _____ _____ _____ _____ _____ _____ _____
Other (specify): __________________
_____ _____ _____ _____ _____ _____ _____ _____ _____
_____ _____ _____ _____ _____ _____ _____ _____
TOTAL
(the sum should equal
Total FY 2008 ECR Cases)
_____
(the sum of the Decision Making Forums
should equal Total FY 2008 ECR Cases)
(the sum should equal
Total FY 2008 ECR Cases)
1
A “case in progress” is an ECR case in which neutral third party involvement began prior to or during FY 2008 and did not end during FY 2008.
2
A “completed case” means that neutral third party involvement in a particular matter ended during FY 2008. The end of neutral third party involvement does not necessarily mean
that the parties have concluded their collaboration/negotiation/dispute resolution process, that all issues are resolved, or that agreement has been reached.
3
“Cases in progress” and “completed cases” add up to “Total FY2008 ECR Cases”.
4
Sponsored - to be a sponsor of an ECR case means that an agency is contributing financial or in-kind resources (e.g., a staff mediator's time) to provide the neutral third
party's services for that case. More than one sponsor is possible for a given ECR case.
5
Participated, but did not sponsor - an agency did not provide resources for the neutral third party's services for a given ECR case, but was either a party to the case or
participated in some other significant way (e.g., as a technical expert advising the parties).
1
1
2
0
1
1
0
0
0
0
0
2
1
3
2
1
2
0
1
0
2
1
2
1
6
4. Is your department/agency using ECR in any of the substantive priority areas (i.e,
NEPA, Superfund, land use, etc.) you listed in your FY 2007 ECR Report? Please
also list any additional priority areas identified by your department/agency during
FY 2008, and indicate if ECR is being used in any of these areas.
List of priority areas identified in your
department/agency FY 2007 ECR Report
Check if
using ECR
Check if use
has increased
since FY 2007
______________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
List of additional priority areas identified by
your department/agency in FY 2008
Check if
using ECR
_____________________________
_____________________________
_____________________________
_____________________________
Please use an additional sheet if needed.
Dealing with Complex and Controversial Transportation Projects
✔
Early involvement and trust building among federal agencies and the public re: transportation projects
✔
Dealing with differing opinions on one or more major environmental issues
✔
Assisting in the timely delivery of transportation projects
✔
7
5. It is important to develop ways to demonstrate that ECR is effective and in order
for ECR to propagate through the government, we need to be able to point to
concrete benefits; consequently, we ask what other methods and measures are
you developing in your department/agency to track the use and outcomes
(performance and cost savings) of ECR as directed in Section 4 (b) of the ECR
memo, which states: Given possible savings in improved outcomes and reduced
costs of administrative appeals and litigation, agency leadership should recognize
and support needed upfront investments in collaborative processes and conflict
resolution and demonstrate those savings and in performance and accountability
measures to maintain a budget neutral environment and Section 4 (g) which
states: Federal agencies should report at least every year to the Director of OMB
and the Chairman of CEQ on their progress in the use of ECR and other
collaborative problem solving approaches and on their progress in tracking cost
savings and performance outcomes. Agencies are encouraged to work toward
systematic collection of relevant information that can be useful in on-going
information exchange across departments? [You are encouraged to attach
examples or additional data]
6. Describe other significant efforts your agency has taken in FY 2008 to anticipate, prevent,
better manage, or resolve environmental issues and conflicts that do not fit within the Policy
Memo’s definition of ECR as presented on the first page of this template.
FAA has acquired a case tracking system that may be adapted to track use and outcomes of
ECR. However, ECR numbers are currently low and results may not be significant.
FHWA tracks the median number of months to complete an Environmental Impact Statement
(EIS) and the median is reported for each fiscal year. As Program Delivery is one of FHWA's
strategic goals, FHWA has identified the following objectives to meet that goal: Improve data
sharing and decision linkages between program areas; increase public involvement and
stakeholder participation in all programs and project activities; and streamline project delivery at
various stages to maximize the return of Federal, State and local investments and maintain our
Nations' competitiveness in the global economy.
DOT remains open to ADR as part of the legal process.
FAA provides training in ADR and conflict management so that attorneys and client offices will
be aware of ADR techniques and their potential benefits for ECR. The Associate Chief Counsel's
Office for ADR maintains FAA's ADR website and actively seeks to partner with others in
building ECR capacity.
FHWA promotes collaboration and self-facilitation during the project delivery process. Many
projects incorporate principals and techniques of conflict and dispute resolution without the
formal use of a third-party neutral. For example, in North Carolina, the NEPA/404 merger
process includes a formalized dispute resolution process and the State is currently in the
process of running a pilot project to determine the effectiveness of facilitated merger meetings.
Also, the Iowa FHWA Division Office facilitated a meeting between USACE, FHWA and the
State DOT regarding concerns by the USACE on the NW 26th Street project.
MARAD is currently reviewing and revising its NEPA procedures in an effort to clarify procedures
to the public and stakeholders.
PHMSA's Office of Chief Counsel has worked to inform other offices within PHMSA of the
importance of public participation in the NEPA process. There has been special mention of the
importance of seeking "Balanced, Voluntary Representation" of the environmental community.
Over the last five years, PHMSA has worked to develop a permit streamlining program to assist
pipeline operators with obtaining necessary environmental permits from Federal and state
partners. The goal of the program was to avoid the delays common in environmental permitting
due to environmental conflict. However, the plan was suspended this year due to low interest
and participation by industry.
8
Section 4: Demonstration of ECR Use and Value
7 Briefly describe your departments’/agency’s most notable achievements or advances in
using ECR in this past year.
FHWA teamed with the National Highway Institute in the development of a new course,
"Practical Conflict Management for Environmental Issues." It is the expectation that this course
will be available for the States in 2009.
The Office of the Secretary highlighted ECR by creating a special Senior Executive Service
(SES) assignment. The Office of the Secretary believed that this assignment was beneficial for
increasing attention to ECR. In addition to meeting with senior officials and staff to promote
ECR, the executive selected for this assignment worked with the Department's Executive
Resources Review Board to incorporate a new criteria into SES performance plans. SES
members, both program officials and attorneys, who are responsible for environmental reviews
now have elements in their performance plans requiring them to consider the use of ECR in
appropriate cases, track the use of ECR and the benefits of using it, track the costs of
environmental conflict to the agency, and set goals for reducing them, and pass these
performance plan elements down to subordinates involved in environmental reviews.
FAA attempted mediation in one case, which, unfortunately, was sent back to the district court
for litigation. In Avallenada v. FAA, Civ. Action No. 08-10718 (D. Mass), plaintiffs challenged the
increased use of Runway 33 at Boston Logan International Airport. Because no NEPA work had
been done on this increase, plaintiffs sought a court order halting the use of the runway. The
mediator found no likelihood of the matter being decided through mediation and sent the case
back to the district court for handling.
9
8. ECR Case Example
a. Using the template below, provide a description of an ECR case (preferably completed
in FY 2008). Please limit the length to no more than 2 pages.
Name/Identification of Problem/Conflict
Overview of problem/conflict and timeline, including reference to the nature and timing of the third-
party assistance
Summary of how the problem or conflict was addressed using ECR, including details of how the
principles for engagement in ECR were used (See Appendix A of the Policy Memo, attached)
Identify the key beneficial outcomes of this case, including references to likely alternative decision
making forums and how the outcomes differed as a result of ECR
Reflections on the lessons learned from the use of ECR
I-70 Mountain Corridor Project in Colorado - FHWA
In May 2007, the project team engaged the USIECR to help select a third party facilitator to help the group
move forward from the DEIS to select a preferred alternative. This allowed the group to reach a point where
they could accept the facilitator and apply all the basic principles for the engagement of ECR, especially
informed commitment, group autonomy, and informed process.
In the Spring of 2008, the Collaborative Effort Team completed its work.
The Collaborative Effort Team is a 27 member group that includes representatives of different interests in
the 144 mile corridor, including local governments, highway users, transit, environmental, business and
recreation, as well as state and federal agencies. Working with independent facilitators, the team met
regularly at various locations in the corridor; the meetings were open to the public for observation with brief
opportunities for public comment.
During its work the team focused on: agreeing on which key questions remain and identifying areas that
need more information and analysis; building agreement around an alternative that identifies modes of
travel and transportation improvement strategies; and establishing processes to ensure stakeholder
involvement in future decisions.
There is a great value in involving stakeholders in the decision making process of a project. Some of the
project's greatest opponents are now its greatest supporters. They remain involved in the process and help
to explain, and to defend, the project's decisions. This also demonstrates to other projects in the state the
usefulness of these principles.
10
b. Section I of the ECR Policy identifies key governance challenges faced by
departments/agencies while working to accomplish national environmental protection
and management goals. Consider your departments’/agency’s ECR case, and
indicate if it represents an example of where ECR was or is being used to avoid or
minimize the occurrence of the following:
Check if
Check all
that apply
Not
Applicable
Don’t
Know
Protracted and costly environmental litigation;
Unnecessarily lengthy project and resource planning
processes;
Costly delays in implementing needed environmental
protection measures;
Foregone public and private investments when
decisions are not timely or are appealed;
Lower quality outcomes and lost opportunities when
environmental plans and decisions are not informed
by all available information and perspectives; and
Deep-seated antagonism and hostility repeatedly
reinforced between stakeholders by unattended
conflicts.
9. Please comment on any difficulties you encountered in collecting these data and if
and how you overcame them. Please provide suggestions for improving these
questions in the future.
Please attach any additional information as warranted.
Report due January 15, 2009.
Submit report electronically to: ECRReports@omb.eop.gov
There is no formal system in any of DOT's organizations for initiating or participating in an ECR
process. As such, there is no central source that is aware of all areas where ECR may be occurring
or the potential for ECR may exist. The majority of reports collected from modal administrations
reported no use of ECR. There is no requirement that when an ECR activity is undertaken that it be
reported to any central source. We are considering ways to overcome this obstacle, including
bringing representatives of the operating administrations together more frequently.
✔
✔
✔
✔
✔
✔
11
Attached A. Basic Principles for Agency Engagement in Environmental Conflict Resolution
and Collaborative Problem Solving
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