Using Consensus-Building and Collaboration in the Context of FACA

1
Using Consensus-Building and Collaboration in the
Context of FACA

• David Emmerson - DOI CADR
• Deborah Dalton EPA CPRC

2
Introduction

• Office of Collaborative Action and Dispute
  Resolution
• Upstream/Downstream
• EPA Conflict Prevention and Resolution Center
• DE

3
What is Consensus?

• Distinguish From Majority Vote
• A Package of items Everyone can Live with
• DD

4
What is Collaboration?

• Collaborative Behavior
• Collaborative Problem-Solving
• Shared Decision-Making
• Little d decisions---Agency still has ultimate
  authority.
• DD

5
Federal Government is Increasingly Endorsing
Collaboration

• Societal TrendWatershed Groups/Volunteerism
• Joint OMB/CEQ MemoPrinciples of Agency
  Engagement
• Cooperative Conservation Initiative
• FACA Regulations
• Establishment of United States Institute of
  Environmental Conflict Resolution
• DE

6
Benefits of Consensus-Building/Collaborative
Problem-Solving

• Build Trust
• Emphasis Placed on Planning
• Group buy-In on Decisions
• Solutions Gain Durability
• Enhances Legitimacy of Decisions
• Encourages Creative thinking
• Builds relationships that may last into other
  Projects.
• DE

7
FACA Committees--Good Candidates for Consensus
Decision-Making

• FACA Requirements Overlap With Best Practices
• Balanced Membership/Identify All interests
• Stated Purpose and Need/Assess Conflict
• Public Meetings/Transparency
• Advance Notice of Meetings/Planning, Structure,
  Minutes, Record-Keeping
• DD

8
Use of Neutral

• Difference Between Facilitator and Mediator
• Can perform an Assessment
• Have No Stake in Matter
• Allow Parties to focus on Substance
• Can Help parties through difficult Negotiations
• DD

9
Qualifications Of Neutral

• Manage Complex Information and Data
• Coordinate Communications and Activities
• Personal Qualities Credibility, Sensitivity,
  Presence, and Persistence
• Ability to write clearly and effectively
• Neutrals Should be Familiar With Underlying
  Concepts of FACA
• DD

10
Qualifications Of Neutral

• Communicate and Listen Effectively
• Analyze and Assess Conflicts
• Design Process with Parties
• Promote Interest-Based Negotiations
• Organize and Manage Meetings
• Ensure full participation, help develop
  structural Integrity of Group
• DD

11
Where to Get a Neutral

• In House
• Concerns Trust of Parties, Experience, Skills,
  Time
• Private Practice
• Costs
• Contracting issues
• Other Federal agencies
• DE

12
Concerns When Using Neutral

• Clearly Define roles of Neutral and DFO and
  Chairperson
• Management concerns regarding loss of control or
  status or delegation of tasks
• Costs
• Is Neutral Doing his/her job?
• (Maintaining Neutrality, trust of parties, etc.)
• DD

13
Challenges of Using FACA as Vehicle for
Collaborative Problem Solving

• Caucuses of interest groups or between interest
  groups
• Use of workgroups
• Between meetings work of members
• Appointing relevant members in a timely way
• Timeliness of decision making within vertical
  hierarchy of agency
• DD

14
FACA Committees That Have Used Consensus-Building

• NPS Overflights
• RAC Committees
• Negotiated Rulemaking Committees
• DE

15
NPS Overflights

• FAA/NPS/Tribes/Air Tours/Conservation Groups
• SubCommittee of NP Advisory board
• Mediated by Phil Harter
• Group reaches consensus on National Rule for Air
  Tour Overflightsadopted by Congress in
  Legislation

16
BLM Resource Advisory Committees

• Set Up to bring wide range of perspectives
  together to advise BLM on Resource Management
  Issues
• Many have used Collaborative Problem Solving and
  Consensus-building to reach agreements on
  Recommendations (Steens Mountain, Central
  Montana, many others)

17
Negotiated Rulemaking

• Special Kind of FACA Committee
• Convened under Negotiated Rulemaking Act
• Aside from standard FACA requirements, also
  requires use of convenor, use of facilitator.
• Becoming more popular at DOICape Cod, Fire
  Island, Golden Gate, Cape Hatteras (Interplay of
  NEPA/FACA/REG-NEG)

18
National Seashore Off-Road Driving Negotiated
Rulemaking

• Cape Cod National Seashore - needed to develop
  new regulations to control access and routes of
  off-road and beach driving of tourists, nature
  lovers, residents and fishermen.
• protect the fragile dunes
• provide critical habitat for nesting/fledging
  endangered Piping Plover.
• existing regulations evolved over a period of 35
  years
• long-standing and serious controversy between
  park and stakeholders.

19
Need to Collaborate, but No FACA Committee in
Sight?

• Options
• Outside Contractor
• Non-Fed entity
• Form FACA Committee
• Form FACA Subcommittee
• Public Meetings that dont result in Group
  Recommendation
• DE

20
Some Tools for Collaborative Problem-solving

• Basic Principles for Agency Engagement in
  Environmental Conflict Resolution and
  Collaborative Problem-Solving
• Ground Rules
• DE

21
Basic Principles

• Informed Commitment
• Balanced, Voluntary Representation
• Group Autonomy
• Informed Process
• Accountability
• Openness
• Timeliness
• Implementation
• DE

22
Importance of Ground Rules

• Replacement for Roberts Rules of Order
• Describe Scope and Limit of Negotiation
• Define Operating Procedures
• Define Roles and Responsibilities
• Try Out Parties Negotiation Style
• Set a Productive Tone Demonstrating Parties
  ability to Agree
• DD

23
Ground Rules Should Address

• Purpose and Scope
• Decision-Making and Ratification Process
• Representation, Roles, and Responsibilities
• Alternate representatives
• Procedural Requirements, Sunshine Laws,
  Confidentiality
• Behavioral Guidelines
• Organization and Conduct of Process

24
Ground Rules Should Address

• Time Frame and Schedule
• Communication with Constituents, the Public and
  Media
• Facilitator and Chairperson roles and
  Responsibilities
• Funding Issues for Parties and Process
• DD

25
Read More About It!

• www.doi.gov/cadr/
• www.epa.gov/adr
• www.ecr.gov