1. INTRODUCTION
The National Environmental Policy Act of 1969 (NEPA) created a deliberative process for effective environmental decision-making. NEPA requires appropriate consideration of impacts of Federal actions to the human and natural environments and to cultural/historical resources. When environmental considerations are introduced during transportation planning and refined during project reviews, more effective and environmentally sound decisions can be made. The focus of the U.S. Department of Transportation's (USDOT) environmental streamlining effort as directed by TEA-21 includes: improving the transportation process by reducing project delays and improving the integration of project development and NEPA, while protecting and enhancing the environment.
Strategies discussed in this document draw upon conflict management and alternative dispute resolution as a way to help all practitioners involved in the environmental review or permitting of transportation projects go beyond agreeing to disagree on controversial issues that arise during the environmental review process or throughout project development. In doing so, the conflict is assessed and resolved as it arises, not deferred to the final point of decision, only to then be revisited. The early assessment of resource issues associated with the transportation project development can help to identify a reasonable range of alternatives for a specific project or lead to the development of flexible mitigation strategies. This streamlines the NEPA process.
What does "managing conflict" involve?
NEPA is a deliberative process. It intends for impacts to the natural and human environment to be viewed and assessed through a multi-disciplinary lens and with full public disclosure. Competing interests (conservation vs. development), different needs (mobility and air quality) and a range of influences (political, statutory, philosophical) color the landscape in which the transportation project planning and development is carried out. So, invariably competing priorities of need, resource impacts, mitigation, and desired outcomes will come into play. Invariably disagreements that turn into full-blown conflicts, the need for additional information, or issue clarification are part of the process. Conflict left to its own devices will not go away. It has to be addressed, managed, disputed, and ultimately resolved. Employing interest-based negotiation sooner, rather than later, in the process can wind up saving time and money. Managing conflict, using alternative dispute resolution skills, or drawing upon third party neutrals to keep the process on track helps to reduce unnecessary delays and arrive at better transportation decisions. Effective conflict management requires:
- Understanding the nature of conflict;
- Knowing when conflict has become a problem in the project development process;
- Recognizing when conflict is interfering with progress toward an end;
- Knowing when to continue working on problem solving with the party involved and when to pursue other avenues, such as seeking assistance or elevating a dispute to a higher authority;
- Understanding how to establish an efficient mechanism for making these decisions; and
- Improving the knowledge and skills of those involved in project development, negotiation, and problem solving.
Hundreds of decisions are made in the context of each transportation project, including the ultimate one-whether to proceed and how. An effective project conflict management system can ensure that these decisions are timely, efficient, and arrived at by informed decision makers.
Managing conflict does not necessarily mean that parties have to agree.
Where agency missions diverge or agency representatives have fundamentally different interpretations of legal mandates, agreement may be elusive. However, disagreement does not have to produce an impasse and result in decision paralysis for the project.
Methodology
The development of this guidance is a result of the USDOT's environmental streamlining efforts, and is a critical component of the Agency's National Dispute Resolution System (see section 1.2 of this document). This guidance provides advice and recommendations; it is not a mandated design. The U.S. Institute for Environmental Conflict Resolution (USIECR) assisted the Federal Highway Administration (FHWA) with the preparation of this guidance.
The USIECR is a Federal agency charged with advancing the use of alternative dispute resolution methods for those involving public lands, natural resources and the environment, where a Federal interest is involved. Appendix A contains a description of the USIECR and its programs.
The list of USIECR's team of experts used to assist FHWA in the original design of this guidance is found in Appendix B.
One of the initial activities associated with the development of this guidance was a telephone survey of Federal and state agency representatives involved in the development and/or review of transportation projects. The participants were asked to identify the following:
- How and why disputes arose,
- Strategies used for resolving disputes,
- Impediments to better conflict management,
- Experience with the use of neutral third parties to aid dispute resolution, and
- Types of training acquired to enhance negotiation skills and to build relationships with other agencies. The survey results are summarized in Appendix C.
As a result, the guidance provides procedural clarifications and information on the use of simple diagnostic tools to improve the management of interagency conflict and a menu of dispute resolution methods, protocols and structures for agencies to consider.
1.1 Environmental Streamlining
Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21) called for a coordinated environmental review process to expedite Federal highway and transit projects without compromising environmental protection. Accomplishing this requires better and earlier coordination among Federal, state, tribal and local agencies. To avoid delays and costly duplication of effort in reviewing and approving transportation projects while protecting and enhancing the environment, agencies should:
- Establish an integrated review and permitting process that identifies key decision points and potential conflicts as early as possible;
- Integrate the NEPA process and other environmental considerations as early as possible in the scoping and if feasible, into the transportation planning processes;
- Encourage early and meaningful participation by all Federal, state, tribal and local agencies that must review a transportation construction project or issue a permit, license, approval, or opinion relating to the project; and
- Establish a dispute resolution mechanism to address unresolved issues.
Environmental Streamlining encompasses the spectrum of planning, development, and review activities. Early coordination and adequate resources help to reduce the number and intensity of disputes that occur at the planning and project review stages. Nevertheless, disagreements among agencies are likely to emerge, and some may develop into full-blown disputes.
The National Memorandum of Understanding (MOU) for Environmental Streamlining (Appendix D) was written and signed to implement Section 1309 of the TEA-21. The following Federal resource agencies are signatories to the MOU: U.S. Fish and Wildlife Service, U.S. Department of Agriculture (USDA), U.S. Department of Commerce, U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), and the Advisory Council on Historic Preservation. Under the MOU, the agencies agree to work cooperatively and to conduct concurrent project reviews under NEPA and other legal authorities for project permits, licenses, and approvals. As the Federal Interagency Workgroup, representatives of these agencies meet regularly with the FHWA and FTA.
Being charged with lead on environmental streamlining, FHWA in coordination with the Federal Interagency Workgroup developed the Environmental Streamlining National Action Plan¹. The Action Plan identifies how the agencies will coordinate their streamlining commitments and manage conflict constructively. The Plan contains the following five elements:
- Program efficiency (early interagency involvement and concurrent reviews)
- Mitigation strategies (avoidance of impacts, innovative mitigation initiatives, and programmatic reviews)
- Resource management (allocation of resources to support early involvement and training)
- Continuous improvement (measuring and monitoring progress and accountability)
- Dispute resolution (keeping projects on schedule through conflict avoidance and resolution)
Dispute Resolution and Streamlining
Section 1309(c) of TEA-21 specifically addressed dispute resolution. Under it, the Secretary of Transportation shall after notice and consultation with an affected agency, close the record on matters before the Secretary if a Federal agency, subject to a time period for its environmental review or analysis, has not been met. If after timely compliance with the agreed upon time periods, an environmental issue for which an affected Federal agency has jurisdiction has not been resolved, the Secretary and the head of the Federal agency shall resolve the issue in 30 days after the date of the finding by the Secretary.
This guidance is also designed to encourage collaborate decision making and facilitate the resolution of interagency disputes at lower levels of decision-making, thus avoiding the need for elevation to the Secretary.
1.2 National Dispute Resolution System
The USDOT is committed to the active management of conflicts that emerge during development of transportation projects. Conflict is to be expected given the dual goals of environmental streamlining i.e., developing and implementing coordinated and timely reviews for the advancement of highway and transit projects, while fully meeting environmental responsibilities.
Conflict that forces agencies to recognize differing views and the struggle to accommodate diverse interests can produce positive results. However, conflict must be managed carefully to avoid its deleterious effects, such as damage to working relationships and lack of progress in reaching needed decisions.
The USDOT's National Dispute Resolution system for addressing disagreements among Federal and state agencies within the context of environmental streamlining, includes the following:
- Guidance on how to manage conflict and resolve disputes, i.e., the focus of this document;
- National Procedures for elevating disputes involving Federal and state agencies to the Secretary of the USDOT,
- Access to qualified third-party neutrals who can provide professional assistance in managing conflict and resolving disputes (i.e., the Transportation Roster), and
- Training workshops to help Federal and state agency staff become familiar with the dispute resolution guidance and to develop more effective negotiation and problem solving skills.
Chapters 3, 4, and 5 provide strategies for achieving collaborative decision-making through early coordination and involvement. Conflict management strategies, if applied as part of environmental streamlining, can be helpful in yielding better outcomes for all.
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