TECHNICAL CLARITY IN INTER-AGENCY NEGOTIATIONS: LESSONS FROM FOUR HYDROPOWER PROJECTS1

ABSTRACT: We investigated the effect of technical clarity on success in multi-party negotiations in the Federal Energy Regulatory Commission (FERC) licensing process. Technical clarity is the shared understanding of dimensions such as the geographic extent of the project, range of flows to be considered, important species and life stages, and variety of water uses considered. The results of four hydropower licensing consultations are reported. Key participants were interviewed to ascertain the level of technical clarity present during the consultations and the degree to which the consultations were successful. Technical clarity appears to be a prerequisite for successful outcomes. Factors that enhance technical clarity include simple project design, new rather than existing projects, precise definition of issues, a sense of urgency to reach agreement, a sense of fairness among participants, and consistency in participation. Negotiators should not neglect the critical pre-negotiation steps of defining technical issues and determining appropriate studies, deciding how to interpret studies, and agreeing on responses to study results.     

Game theory and environmental disputes

The courts have provided the traditional battleground for conflicts between environmental interest groups and those whose actions in some way have an adverse impact on the environment The judicial process is a time-consuming one in which all sides usually must concede to some points. Environmental disputes involve complex scientific issues which the court system is not set up to comprehend, so that the process gives the parties to a dispute the sense of having lost control of their own destinies. An increasing number of parties to environmental disputes are turning to negotiation, or mediation, as an alternative in which they can be active parties in the settlement-making process rather than the victims of a court-imposed solution When do the parties to a dispute choose a negotiated settlement over a court battle? To what extent does each party make the concessions necessary to reach an agreement? These questions can be answered by the game theory that provides a model for analyzing the negotiation process. This paper will apply game theory to two environmental conflict cases A series of questions pertinent to the analysis of all environmental disputes will be raised     

Hydropower Relicensing and Climate Change1

Viers, Joshua H., 2011. Hydropower Relicensing and Climate Change. Journal of the American Water Resources Association (JAWRA) 47(4):655‐661. DOI: 10.1111/j.1752‐1688.2011.00531.x Abstract: Hydropower represents approximately 20% of the world’s energy supply, is viewed as both vulnerable to global climate warming and an asset to reduce climate‐altering emissions, and is increasingly the target of improved regulation to meet multiple ecosystem service benefits. It is within this context that the recent decision by the United States Federal Energy Regulatory Commission to reject studies of climate change in its consideration of reoperation of the Yuba‐Bear Drum‐Spaulding hydroelectric facilities in northern California is shown to be poorly reasoned and risky. Given the rapidity of climate warming, and its anticipated impacts to natural and human communities, future long‐term fixed licenses of hydropower operation will be ill prepared to adapt if science‐based approaches to incorporating reasonable and foreseeable hydrologic changes into study plans are not included. The licensing of hydroelectricity generation can no longer be issued in isolation due to downstream contingencies such as domestic water use, irrigated agricultural production, ecosystem maintenance, and general socioeconomic well‐being. At minimum, if the Federal Energy Regulatory Commission is to establish conditions of operation for 30‐50 years, licensees should be required to anticipate changing climatic and hydrologic conditions for a similar period of time.     

A Spatial equilibrium perspective for planning the production of electrical energy

A spatial and temporal equilibrium model of production, consumption, prices, and transmission is constructed to determine the efficient pricing and allocation of electrical energy in the United States. Regional coordination is technically feasible and economically attractive. It also maximizes environmental efficiencies. The duplication of electrical generation and transmission facilities yields a misallocation of resources.The utilities put forth specific arguments against coordinated operations. Yet in a fully integrated power system, each region would be expected to maximize the benefits of time diversity by purchasing from outside the region in lieu of the expansion of regional capacity. The Federal Energy Regulatory Commission has not yet made a serious move to encourage regional coordination and planning, but the Commission has the authority to promote such operations if it chooses to do so.The author is an economist with the Department of Energy. The views expressed are those of the author and do not necessarily represent the policies of the Department of Energy or the views of other staff members.     

Understanding Dispute Resolution Processes for American and Australian Public Wildlands: Towards a Conceptual Framework for Managers

/ The last 20 years have seen the successful application of environmental dispute resolution processes, where people voluntarily negotiate toward mutually acceptable solutions, to many environmental disputes. The effects of contextual influences, such as the number of parties and presence of deadlines, on outcomes are known and frequently described. Less well documented and understood are the interaction processes themselves. This paper draws on two case studies to develop a conceptual framework describing these processes. Disputes associated with management planning for the Bob Marshall Wilderness Complex in the United States and Fitzgerald River National Park in Australia provided the cases. The conceptual framework derived had eight sequential stages: (1) joint definition of problems, (2) uncertainty about what to do, (3) agreement on group procedures, (4) realization of interdependence, (5) enthusiasm about collective possibilities, (6) commitment to working together, (7) consolidation of the group, and (8) implementation of a resolution. The framework provides new insights for managers of public wildlands, especially the need for varying but ongoing managerial involvement in dispute resolution processes. High levels of involvement and influence are essential at the beginning in problem definition and group procedure design and at the end in implementing resolutions. Conversely, agency members must be willing to exert less influence, while still being involved and committed to collective purposes, during the middle stages. Also apparent from the conceptual framework is the importance of developing shared understandings and of allowing sufficient time for understanding to develop, if successful resolution is to be achieved. KEY WORDS: Environmental dispute resolution; Conceptual framework; Public wildlands; Shared understandings; Australia     

Scientific certainty and the laws that govern location of a potential high-level nuclear waste repository

Recent studies have questioned the ability of the Department of Energy to successfully construct and operate a high-level nuclear waste repository at Yucca Mountain, Nevada, USA, consistent with current Environmental Protection Agency standards and Nuclear Regulatory Commission regulations. Questions focus on whether demonstration of compliance with the agency's standards is based too much on numerical calculations and analyses that the Department of Energy must conduct to project the long-term performance of the repository. Unless these questions are resolved, the licensing of the repository could be withheld or delayed by litigation. This article reviews the extent to which laws that govern the siting of high-level nuclear waste repositories require scientific certainty in any findings about the environmental consequences of locating a repository.     

COST SHARING IN TRANSITION: THE CASE OF PLAN 6, CENTRAL ARIZONA PROJECT1

ABSTRACT: In the past, development of Federal water resource projects depended heavily or exclusively on Federal financing of construction costs. However, pressures on the Federal budget, environmental issues, and the notion that there are economic efficiency gains when beneficiaries of Federal water resource projects increase their cost share are causing changes. The case of the Central Arizona Project Plan 6 is a noteworthy example of the transition to more non-Federal participation in water resource development. This is because the non-Federal financing is to be provided for a project already under construction. The negotiation and terms of the Plan 6 financing agreement between the Department of the Interior and multiple interests in Arizona are used as an example of how Federal water project cost sharing is in a state of transition. The negotiation process is described, a financial analysis is provided, and the terms of the agreement and policy issues that were deliberated in the Executive Branch of the Federal Government are discussed.     

Does collaboration affect the duration of environmental permitting processes?

While collaborative governance has many benefits for environmental planning and management, those benefits are not politically feasible if they impact on process efficiency. This study assesses collaboration's effect on the duration of water permitting processes, specifically the United States’ Federal Energy Regulatory Commission's hydropower relicensing process. Collaboration was measured using a survey of participants in 24 recent hydropower relicensing processes. A Cox proportional hazards model with mixed effects assessed the relationship between collaboration, regulatory framework, hydropower facility characteristics, and relicensing process duration. Collaboration was not associated with time to license. Instead, process duration depended on the regulatory framework (especially the switch to the Integrated Licensing Process and presence of endangered species) and facility characteristics (generating capacity and facility type). The results suggest that agencies should consider engaging collaboratively during planning and permitting, given that collaboration's benefits to decision quality do not incur a cost on overall process time.     

STATE WATER PLANNING: A FORUM FOR PROACTWELY RESOLVING WATER POLICY DISPUTES1

ABSTRACT: In the arid West, the development and implementation of water policy often results in disputes among water users, resource managers, and policy makers. Although significant attempts have been made to improve public involvement and dispute resolution in water resources planning, the traditional planning process has not historically played this role for a variety of reasons. Water resources planning can become a forum for proactively resolving water policy disputes by employing the principles of environmental dispute resolution. The purpose of this article is to explore the role of collaborative, consensus-building planning processes in resolving water policy disputes. The Montana State Water Plan is evaluated as an example of such a process, and a model state water planning process is outlined.     

民事司法改革进程中环境纠纷行政处理问题探析

民事司法手段的局限性限制了司法手段在环境纠纷解决中的地位和作用。民事司法改革进程的深入发展和多元化纠纷解决机制的兴盛为环境纠纷的多元化解决途径带来了新的发展契机。环境纠纷行政处理的专业性、便捷性、可接近性决定了行政处理在环境纠纷解决中的独特作用和适用空间。在借鉴发达国家和地区环境纠纷行政处理的立法经验和灵活多样的纠纷解决途径的基础上,从环境纠纷行政处理专门立法、纠纷解决机构设置、纠纷解决方式、行政处理的纠纷范围、行政处理救济的程序保障等方面,提出完善我国环境纠纷行政处理制度的思考和建议。     

Regulatory requirements and tools for environmental assessment of hazardous wastes: Understanding tribal and stakeholder concerns using Department of Energy sites

Many US governmental and Tribal Nation agencies, as well as state and local entities, deal with hazardous wastes within regulatory frameworks that require specific environmental assessments. In this paper we use Department of Energy (DOE) sites as examples to examine the relationship between regulatory requirements and environmental assessments for hazardous waste sites and give special attention to how assessment tools differ. We consider federal laws associated with environmental protection include the National Environmental Policy Act (NEPA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as well as regulations promulgated by the Nuclear Regulatory Commission, Tribal Nations and state agencies. These regulatory regimes require different types of environmental assessments and remedial investigations, dose assessments and contaminant pathways. The DOE case studies illustrate the following points: 1) there is often understandable confusion about what regulatory requirements apply to the site resources, and what environmental assessments are required by each, 2) the messages sent on site safety issued by different regulatory agencies are sometimes contradictory or confusing (e.g. Oak Ridge Reservation), 3) the regulatory frameworks being used to examine the same question can be different, leading to different conclusions (e.g. Brookhaven National Laboratory), 4) computer models used in support of groundwater models or risk assessments are not necessarily successful in convincing Native Americans and others that there is no possibility of risk from contaminants (e.g. Amchitka Island), 5) when given the opportunity to choose between relying on a screening risk assessments or waiting for a full site-specific analysis of contaminants in biota, the screening risk assessment option is rarely selected (e.g. Amchitka, Hanford Site), and finally, 6) there needs to be agreement on whether there has been adequate characterization to support the risk assessment (e.g. Hanford). The assessments need to be transparent and to accommodate different opinions about the relationship between characterizations and risk assessments. This paper illustrates how many of the problems at DOE sites, and potentially at other sites in the U.S. and elsewhere, derive from a lack of either understanding of, or consensus about, the regulatory process, including the timing and types of required characterizations and data in support of site characterizations and risk assessments.     

FEDERAL SUBSIDY OF IRRIGATION DEVELOPMENT1

ABSTRACT: The Congress of the United States has been concerned about public lands from the earliest days of this republic. The importance of irrigation on these public lands was explicitly noted with enactment of the Carey Act of 1884. This was reinforced with the passage in 1902 of “An Act appropriating the receipts from the sale and disposal of public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands.” This Act further specified that land so irrigated would be entered under the provisions of the Homestead Laws and developed in units of not less than 40 nor more than 160 acres. The enforcement of the 160 acre limitation has been reinforced by several recent lawsuits. These have reaffirmed the provisions of the Reclamation Law requiring owners receiving water from Federal projects to sell land in excess of 160 acres. While there have been Federal subsidies involved in the development of irrigation in the western states, the total amount of the subsidies are insignificant compared to the total Federal budget and the size of subsidies under other Federal programs. Thus, the real question in enforcing the 160 acre limitation may well be one of land reform rather than the distribution of Federal subsidies.     

A river might run through it again: criteria for consideration of dam removal and interim lessons from California

Resource managers are increasingly being challenged by stakeholder groups to consider dam removal as a policy option and as a tool for watershed management. As more dam owners face high maintenance costs, and rivers as spawning grounds for anadromous fish become increasingly valuable, dam removal may provide the greatest net benefit to society. This article reviews the impact of Endangered Species Act listings for anadromous fish and recent shifts in the Federal Energy Regulatory Commission's hydropower benefit-costs analysis and discusses their implications for dam removal in California. We propose evaluative criteria for consideration of dam removal and apply them to two case studies: the Daguerre and Englebright Dams on the Yuba River and the Scott and Van Horne Dams on the South Eel River, California.     

环境邻避冲突中公众纠纷解决机制的发展与完善

近年来我国环境邻避形势严峻,人民群众日益增长的对美好生态环境的需求、公众参与环境保护的意愿、维护自身权益的意识和当前纠纷解决机制不平衡不充分的矛盾突出。为了有效化解冲突,环境邻避纠纷解决机制先后经历了萌发期、探索期,并逐步进入多元化发展阶段。现阶段环境邻避纠纷非诉讼解决方式存在制度局限,诉讼解决方式在实际应用中面临诉讼积极性不高、立案难、举证难、审理难等问题。为此,结合环境邻避纠纷的特点,本文提出了环境邻避纠纷解决机制完善建议:一是预防为主,建立贯穿项目建设始终的公众参与法律制度体系,增强公众意见反馈的强制性;二是分类化解,建立和完善适应不同需求的纠纷解决程序,加强多元化纠纷解决机制的衔接。希望通过建立"预防为主,分类化解"的精细化纠纷解决机制来推动环境邻避冲突的有序解决。     

Federalism and environmental politics: An Australian overview

Summary This overview paper examines past Australian conservation controversies and experiences to identify prospective means of ameliorating environmental conflict in the future. Since all community disputes should be resolved by means of political and administrative actions, emphasis is placed on federalism and intergovernmental relations, and measures are suggested which might improve environmental policy and practices in the future.Dr Bruce W. Davis is currently Head of the Department of Political Science, Dean of the Faculty of Arts, and member of the Council of the University of Tasmania. He possesses qualifications and professional experience in engineering, economics and administration. He has numerous publications within the fields of public sector planning and natural resources management, and acts in an advisory and consulting capacity to State and Federal agencies involved in national parks administration, heritage conservation and land-use planning.In addition to University commitments, Dr Davis holds the following appointments: Commissioner, Australian Heritage Commission; Member, Australian National Commission for UNESCO, Man and Biosphere Program; Trustee, World Wildlife Fund Australia; Councillor, Australian Conservation Foundation; and Consultant to IUCN, Gland, Switzerland.     

论WTO处理环保议题的路径选择

WTO处理环保议题主要是通过召开会议、制定协议、创制协调机构以及解决争端等方式,上述路径从整体上构成了世界贸易组织的环境保护实践。"借用"WTO争端解决机制处理环保议题,成为有效协调环境保护与促进贸易自由的现实选择。WTO争端解决机制履行世贸组织环境保护方面的职权,解决与环境有关的贸易争端,其法律解释和裁决报告等不断塑造着世贸组织的环保体系。在缺少完善的环境领域争端解决机制的情况下,"借用"WTO争端解决机制处理环保议题的模式将会长期存在。     

我国水事纠纷解决机制探析

水事纠纷解决机制是一系列水事纠纷解决方式所组成的整体,该机制是民事主体或行政区域水资源权利受到侵害,以及遭受水污染侵权损害的重要救济途径。虽然我国相关法律对水事纠纷的解决方式已作出规定,但是这些法律规定较为分散、不系统,还没有形成一个有机的整体,造成运用该机制解决水事纠纷的效果较差。为了保障水事纠纷及时、有效地得以解决,完善我国的水事纠纷解决机制已迫在眉睫。     

INTER-STATE WATER DISPUTES: A CASE STUDY OF INDIA1

ABSTRACT: During the last 27 years of independence, a large number of inter-state water disputes cropped up over the use of rivers. Surprisingly enough, more disputes developed in this short period than in the earlier 200 years of the development of irrigation and so far none of the disputes has been permanently solved. The major rivers of India are all inter-state rivers and this is one of the more important reasons why some of them are not yet fully developed for irrigation or power production. The Union Government has set up, so far, only three tribunals to adjudicate inter-state disputes. But the problems do not end simply by setting up the tribunals. In practice, it has also proved a dilatory process. None of the tribunals has been successful in settling any dispute in the long years of their existence. There is no codified law prescribing rights and the notion of “equity” has come to prevail restraining the upper states from drawing such quantities of water as would injure the interests of the lower states. Though the general principle of equitable apportionment had been advocated many times, in practice each contending state had given this principle an interpretation that suited it. The basic principle would be to harness the rivers not for the benefit of a particular state but for the maximization of agricultural, industrial, and navigational potential in the areas served by the rivers.     

Geographic pollution mapping of power plant emissions to inform ex-ante environmental justice analyses

Federal and many state agencies are required to perform environmental justice analyses of their policies prior to implementing them to prevent undue impacts on low income and minority populations. However, little academic attention has been paid to the quality of these ex-ante environmental justice analyses. This investigation evaluates the methods used to perform environmental justice analyses during siting and permitting processes. The study uses both the California Energy Commission guidelines for environmental justice analyses and a method that geographically maps air pollution to perform ex-ante environmental justice analyses of three power plants. The objective is to see if results from using these two analysis methods differ substantially. Findings indicate that the mapping technique employed represents a substantial improvement over defining the impacted population using proximity methods because it accounts for the geographical distribution of the hazard. Furthermore, using multiple comparison benchmarks to determine whether the impacted population constitutes an environmental justice population improves upon existing methods by accounting for the spatial distribution of minority and low income populations and for the possibility that there is a relatively high or relatively low percentage of low income and minority persons in both the impacted and comparison regions.     

Web-based GIS for collaborative planning and public participation: an application to the strategic planning of wind farm sites

Spatial planning typically involves multiple stakeholders. To any specific planning problem, stakeholders often bring different levels of knowledge about the components of the problem and make assumptions, reflecting their individual experiences, that yield conflicting views about desirable planning outcomes. Consequently, stakeholders need to learn about the likely outcomes that result from their stated preferences; this learning can be supported through enhanced access to information, increased public participation in spatial decision-making and support for distributed collaboration amongst planners, stakeholders and the public. This paper presents a conceptual system framework for web-based GIS that supports public participation in collaborative planning. The framework combines an information area, a Multi-Criteria Spatial Decision Support System (MC-SDSS) and an argumentation map to support distributed and asynchronous collaboration in spatial planning. After analysing the novel aspects of this framework, the paper describes its implementation, as a proof of concept, in a system for Web-based Participatory Wind Energy Planning (WePWEP). Details are provided on the specific implementation of each of WePWEP's four tiers, including technical and structural aspects. Throughout the paper, particular emphasis is placed on the need to support user learning throughout the planning process.