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  • Ashley R Booth

Effective Environmental Policy Requires Inclusion

Picking a place to eat for a group of is one of my least favorite tasks. However, as the person in my friend group with the most-restrictive diet, this burden typically falls to me. So I pick with the goal of making everyone happy. But inevitably we sit down, and I hear “Did you know this place was so expensive?” or “This wait is too long” or “[some other restaurant] would have had better food.” I use this example to demonstrate (in an albeit silly way) how difficult it is to make effective decisions for other people. If my goal was to make everyone happy with the restaurant I chose, I failed. If I had solicited everyone’s opinion in the group, asking what type of food and price range they wanted before I made my decision, I would have increased my odds of picking a restaurant the entire group would like. This theory of inclusion holds true for governmental policies as well.

Policies (or stated courses of action) are used by government to describe specific ways to deal with issues that arise. For example, the National Environmental Policy Act (NEPA; enacted by the United States Congress in 1970) is designed to provide federal agencies with a structured procedure for evaluating how federal actions will impact the environment.

Concept map of blue circles with different factors of NEPA policy: consider project impacts, develop and evaluate alternatives, interagency coordination, mitigate adverse impact, public involvement, identify purpose and need. All blue circles point to a central, darker blue circle labelled NEPA process.
Concept map showing factors in NEPA process
What is NEPA?

This policy was enacted in response to growing public concern about ballooning population numbers, widespread development, and environmental degradation. Since it was enacted, any project funded or managed by a federal organization or which takes place on federal lands must adhere to NEPA guidelines. This includes preparing an Environmental Assessment (EA) that outlines potential environmental impacts of the project. If there is a possibility for significant impacts that agencies may not be able to mitigate (or offset), NEPA regulations require an Environmental Impact Statement (EIS) that assesses impacts on human populations, including all possible environmental, social, and cultural risks posed by the project. The EIS also outlines potential alternatives to the activity in question. A hallmark of NEPA is its explicit focus on collaboration and inclusion, as agencies are required to seek and respond to public comments during this process. The politicians who designed NEPA understood that inclusion of stakeholders (or interested parties) is crucial for policies to be effective, both in implementing change and garnering support for policy-based decisions.

Proposed Changes to NEPA

Though NEPA has been in place (and largely unaltered) for 50 years, in January 2020 the Council on Environmental Quality proposed several changes to NEPA in an effort to streamline the assessment process. In part because of the thoroughness required by NEPA, the environmental assessment process can take years. Proposed changes narrow NEPA’s focus to “major”, non-routine development, limit the scope of analysis to direct, non-additive effects, and set firm timelines for completion of the NEPA process. While many of the changes are controversial, the idea of streamlining bureaucratic government processes appeals to many. The push for these changes comes after decade-long NEPA-related delays on major projects like the Dakota Access and Keystone XL pipelines. However, a lack of stakeholder inclusion may be more responsible for delays related to pipeline construction than the scope or process of NEPA itself.

Map of the middle of North America showing different phases of Keystone XL pipeline.
Map of planned Keystone XL pipeline
Failure to Include Stakeholders Lengthens NEPA Process

In early 2020 after almost 12 years of scrutiny in adherence to NEPA guidelines, Secretary of the Interior David Bernhardt approved a right-of-way permitting construction of the Keystone XL (KXL) oil pipeline over 46 total miles of federally-owned lands in the state of Montana. However, construction is not guaranteed, as this right-of-way allowance is being actively contested by two federally-recognized Native American tribes on the grounds that their tribes should have been (but were not) included as stakeholders in the NEPA process.

In light of the Dakota Access pipeline protests of 2017 and several recent major pipeline leaks on the Phase 1 Section of the Keystone Pipeline System, the legal argument brought by the Fort Belknap and Rosebud Sioux tribes argues that KXL construction will infringe on the ability of tribes to govern their own lands and may endanger environmental resources and ceremonial sites. However, the controversy is, at its heart, about a lack of inclusion in the policy and governing process as a result of institutional racism.

Neither tribe was included in the NEPA process because KXL construction will not take place on land within either tribe’s current reservation. However, lands included in the recent right-of-way allowance were historically Fort Belknap and Rosebud Sioux tribal lands. This disagreement over land ownership and jurisdiction is rooted in a failure by the federal government to acknowledge the 1851 and 1868 Fort Laramie treaties that granted governance of extensive tribal lands in the Black Hills. Thus, the two tribes argue that while KXL will not be constructed on current reservation land, the Fort Laramie treaties still apply and construction will take place on historic tribal lands that still fall under tribal governance.

Why is inclusion still important if we want to streamline NEPA?

Environmental issues raised by Fort Belknap and Rosebud Sioux tribes about KXL construction are certainly valid, but this example serves to specifically highlight the need for improved stakeholder inclusion in the policy process. If the goal of proposed changes to NEPA is to streamline the process, policy-makers should also work to improve inclusion of stakeholders who have been historically marginalized, which would perhaps reduce litigation over exclusion from the NEPA process.

How can inclusion make policy more effective?

While inclusion does not inherently reduce controversy, there is evidence that equal inclusion for all groups in the policy process improves stakeholder (and public) trust in those who make policy decisions and overall acceptance of those decisions (Terwel et al. 2010). This happens, but not in the way that Solomon Asch’s classic psychology experiment in 1951 demonstrated that students conform to group decisions to avoid being excluded from the group. Instead, inclusion promotes acceptance of policy decisions because providing legitimate stakeholders (like the Fort Belknap and Rosebud Sioux tribes) a voice in the discussion garners public faith in the policy process (Terwel et al. 2011). While identifying and including stakeholders may be perceived as time-consuming and costly, by striving to identify and include stakeholders in the conversation, marginalized voices are given power over policy decisions and may help improve the policy effectiveness.

You can read about the proposed changes to NEPA and contribute your comments at the Federal Register here until March 10, 2020.

Featured image: Panorama of Glacier National Park. Image courtesy of Creative Commons CC0.

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