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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:
________________________
Federal Energy Regulatory Commission
Jacqueline S. Holmes, Associate General Counsel - Energy Projects
General Counsel
202-502-8198/jacqueline.holmes@ferc.gov
January 15, 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.]
The Commission continued to take steps to build programmatic/institutional capacity for
environmental conflict resolution (ECR) in 2008:
o The Commission’s Dispute Resolution Service (DRS) entered into an agreement with the Harvard
Negotiation & Mediation Clinical Program (HNMCP) to study alternative dispute resolution (ADR) in
the energy industry, inclusive of ECR, in three regulated energy sectors: electricity, hydropower
and natural gas. The study will help the Commission better understand how energy companies
view ADR as a tool for energy conflict prevention and resolution, their receptiveness and resistance
to its use and the reasons for those positions, and what measures can be taken to improve the
capacity and entry points for ADR/ECR in energy and environmental-related decision-making and
problem-solving processes.
The Commission’s DRS continues to integrate ADR/ECR objectives and principles in its goals and
mission statements and GPRA goals and strategic planning. In its Strategic Plan, the Commission
notes that it “encourages the use of alternative dispute resolution procedures” as part of its guiding
principle of Due Process and Transparency. The annual Performance Budget Request to the Office
of Management and Budget tracks environmental collaborative problem-solving and ADR processes
(including ECR) and identifies specific performance measurement data and results supporting the
Commission’s ADR and ECR initiatives. Below are ADR/ECR performance and achievement
measures for 2008.
o The DRS addressed 57 new ADR requests and referrals (42 were completed within the period
and 15 were ongoing). These numbers exceed the number of referrals for FY2004 (54 total).
o The DRS had a 90% success rate in assisting parties achieve consensual resolution of cases (18
out of 20 cases were resolved).
o Of the total number of ADR requests, referrals and cases identified in the two bulleted items
above, eighteen (18) of them involved environmental matters. The DRS used ECR to successfully
resolve six (6) of these cases and was unable to resolve one (1) of these cases through an ECR
process. The DRS was used in a coaching capacity to assist in resolving two (2) of these cases.
After initial intake in the DRS, five (5) cases were referred to the Commission’s Office of Energy
Projects and three (3) were referred to the Enforcement Hotline. ECR was found not to be an
inappropriate process for one (1) case.
o The DRS receives customer feedback from surveys participants complete at training and
workshop sessions, and for cases. In trainings and workshops for FY 08, participant ranking for
Course Content averaged 89%, and Instructor Effectiveness 93%, out of 100%. For casework
concluded during the period, all participants who completed evaluations gave the DRS staff
favorable comments for a satisfaction rate of 100%.
o The DRS delivered or assisted with 37 outreach events. The DRS met all the needs for outreach.
The Commission continually makes the effort to improve upon efficiency and infrastructure support
for ADR/ECR and invests in research and program support.
o The joint study that the Commission’s Dispute Resolution Service and the HNMCP entered into in
August 2008 was initiated to gain better insights into the effectiveness of the Commission’s ADR
program and ADR use in general as a tool for energy conflict prevention and resolution. Based on
participatory feedback from energy companies, the Commission anticipates the study results will
assist the Commission in improving its ADR program on cost-effective ADR/ECR case services that
meet the needs of energy stakeholders.
In addition, the study results will enable the DRS to determine to what extent in three areas,
education, outreach, and infrastructure support, the Commission can improve upon its ADR/ECR
program. Several Harvard Law School interns in the clinical program on negotiation will work
closely with FERC’s DRS in FY 2009 to gather information on the topic of the use of ADR in the
energy industry.
o In FY 08 the Commission invested in program support. The Commission’s DRS advertised for
two full-time dispute resolution specialists to replace two professional staff that left in FY 07 and FY
08. With the new hires anticipated to join staff in the early part of FY09, the Commission will have
six dispute resolution specialists and one support staff.
Further, the DRS initiated recruitment of conflict resolution graduate interns from the new Master’s
Program in Conflict Resolution at Georgetown University. In the summer of FY 08 the
Commission’s DRS employed two full time interns on temporary, salary appointments and one
continued on through the fall as a temporary part-time intern. The interns assisted with several
landowner complaints.
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).
0
0
14
23
37
0
23
6
29
129
132
261
0
0
166
161
327
37
29
266
332
0
0
0
37
29
266
332
0
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.
Hydropower licensing and relicensing applications
✔
Natural gas facility certificate applications
✔
Electric transmission siting authorization applications
✔
Liquefied natural gas facility authorization applications
✔
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.
As reported in response to the FY 2007 questionnaire on ECR activities, the DRS continues to
track and report on performance of ECR services including cases, outreach activities,
educational programs, time spent to resolve ADR/ECR cases, and cost savings from feedback
stakeholders provide in survey responses. Please refer to response no. 1 for the ADR/ECR
performance measures the DRS tracked for FY 2008.
o In FY 08 the Commission’s DRS piloted an online dispute resolution (ODR) tool to track
stakeholder satisfaction with ADR processes. The updated ODR survey form requests
stakeholders to provide more feedback on how the Commission can improve existing ADR/ECR
processes and services. Another reason for using ODR technology is ease of access and we
anticipate that more stakeholders will actually complete the online survey, which is not
mandatory. Further, one DRS staff took a one-day course in ODR.
o The joint FERC- HNMCP study proposal agreed to in August 2008 requested survey
deliverables that would evaluate the use of ADR and associated ECR processes in the electric,
hydroelectric, and natural gas industries, how ADR/ECR is being used and whether this conflict
resolution tool is effective. The HNMCP developed a well-targeted survey to gather in-depth
quantitative and qualitative data regarding how, when and where ADR is being used in the
energy industry and whether the industries are familiar with and make use of the Commission’s
DRS or other ADR service providers. HNMCP has developed a methodology for analyzing the
results and will provide a report of its findings in FY 09. Please see response no. 1 for more
information about the joint study.
In FY 2008, the Commission entered into a memorandum of understanding with the State of
Washington, and began negotiations on a similar document with the State of Oregon, with
respect to the licensing of hydrokinetic projects.
In addition, the Commission continued to implement its hydropower settlement policy statement,
approving settlements involving the 1,893-magawatt Priest Rapids Project and the 3-megawatt
Lundy Project.
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.
The most notable advancements and achievements in using ECR in FY 08 resulted from
partnering opportunities, outreach events, training activities, and other initiatives the
Commission’s staff implemented on effective ADR/ECR processes:
o Education and Training on Collaborative Governance: The Commission hosted a conference
on environmental collaborative governance entitled "Collaboration for the Federal Manager:
Engaging Citizens in Government Decision Making". Approximately 50 Federal government
managers attended this well-received workshop based on the survey responses received. In
addition to the Commission’s DRS, co-sponsoring partners and committees included the
American Bar Association’s (ABA) Section of Dispute Resolution Government Committee; the
ABA Section of Administrative Law; the Interagency Alternative Dispute Resolution Working
Group; and the University of Virginia’s Institute for Environmental Negotiations.
o Education and Training on Good ECR Process: The Commission hosted a series of Brown
Bag Lunch and Learn Events on ADR/ECR tools for environmental conflict resolution. Two
brown bags seminars used documentary films to compare and contrast effective and ineffective
environmental case problem-solving processes followed by a lively discussion on the benefits of
third-party neutral assistance in such cases.
o ECR Leadership Activities: The Commission had two DRS staff members participate on the
Program Planning Committee for the ECR 2008 Conference hosted by the U.S. Institute on
Environmental Conflict Resolution. Further, DRS committee member moderated a panel on the
applicability of ECR third-party assisted processes for cultural resource disputes.
In addition, in May 2008 one DRS staff was designated to co-lead a working group for the next
Native Nations Skills Exchange Workshop, currently scheduled for 2009. The Native Network,
comprised of Native and Non-Native mediation practitioners, is housed in the U.S. Institute for
Environmental Conflict Resolution.
o Education and Dissemination of Information on ECR Successes: Through publications such
as the Commission’s ADR Newsletter (Spring 2008 edition), the DRS continued to educate and
disseminate information to the energy industries the Commission regulates and other entities
and stakeholders on the OMB-CEQ joint policy on ECR and the use of ECR at the Commission.
Further, one DRS staff co-authored an article in the ACR Resolutions magazine (Summer 2008
edition) on the use of ADR/ECR in the federal government, which showcased ECR’s successful
use on the highly politicized Millennium natural gas pipeline project. The DRS also made a
presentation about this case to the OMB-CEQ quarterly forum on ECR in February 2008.
o Training, Outreach and Consultation on Effective ADR/ECR: The DRS offered the same,
popular three-part training course in FY 08 to Commission staff that the Commission reported on
for previous fiscal years.
The Commission developed and conducted a 2-day interest-based negotiation workshop for a
regional office of the U.S. Fish and Wildlife Service (Portland, Oregon).
The Commission gave a half-day training session to the U.S. Department of the Interior’s
Dialogue on Collaborative Conservation and Cooperative Resolution on the topic “Effective
Approaches for Resolving Infrastructure Conflicts” in which the DRS provided case examples of
the successful use of ECR in planning, siting, and re-licensing hydropower and natural gas
infrastructure facilities.
The Commission continued to support outreach on ADR/ECR at the request of foreign
delegations. The DRS hosted and was hosted by delegations from Thailand and China on the
Commission’s ADR program for resolving energy-related regulatory conflicts.
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
In FY 08 the Commission’s DRS played a significant role in mediating complex business and transactional
energy disputes that could lead to more energy infrastructure development and capacity for large ECR
cases in the near the future. The ECR cases reported for FY 08 in responses no. 1 and 3 in which the
parties agreed to an ECR process were primarily smaller, two-party disputes that typically involved an
energy company and either a landowner or a community. DRS staff functioned in a third-party neutral role
and solved these cases effectively and efficiently, often not needing to travel to the location of the dispute.
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
To improve responses to questions in the future, the Commission staff offers these suggestions:
• For the table at question no. 2, add the category of "moderate". This will assist us in reporting
more accurately.
• For several “repeat questions” on the questionnaire, it is unclear if the respondent should repeat
information that was reported on for previous fiscal years or to refer the reviewer to other responses
in the questionnaire. If OMB and CEQ could clarify what background and ongoing information is
required, it would improve the quality of responses and potentially eliminate redundancies. For this
reporting cycle, the Commission opted to refer the reviewer to past responses.
11
Attached A. Basic Principles for Agency Engagement in Environmental Conflict Resolution
and Collaborative Problem Solving
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