Volume 39 Article 6 October 2018 Collaboration Through NEPA: Achieving a Social License to Operate On Federal Public Lands Haub School of Environment and Natural Resources, jessica.wes
I NTRODUCTION
In 2013, a study was conducted in Routt and Moffat Counties, northern Colorado, at the request of Shell Exploration and Production Company to explore local stakeholder perceptions of oil and gas development The research involved interviews with representatives from various stakeholder groups, gathering both quantitative and qualitative data to analyze community discourse around energy production The study identified five key themes that reflected a spectrum from high trust to high distrust of oil and gas companies and regulators Importantly, participants articulated specific environmental, economic, and social conditions under which they would support expanded oil and gas development in the region, providing valuable insights into community attitudes toward energy expansion.
This study highlighted the place-based aspirations and concerns that stakeholders would have raised if Shell had expanded its oil and gas operations in the area, emphasizing the importance of understanding local community perspectives It also found that most conditions articulated by stakeholders were negotiable, with many willing to engage in dialogue with Shell to find mutually acceptable solutions Had Shell proceeded with its proposed development, implementing place-based collaborative approaches could have optimized profits while fostering a social license to operate—a key factor representing society’s or local communities’ acceptance of a company's activities.
Jessica M Clement and Elizabeth Spaulding's 2013 study explores the prevailing themes in the oil and gas development discourse among local residents in Moffat and Routt Counties, Colorado Their research highlights community perceptions, concerns about environmental impacts, and economic benefits associated with oil and gas activities The study provides valuable insights into how local residents interpret and respond to energy development, emphasizing the importance of understanding community narratives in shaping sustainable energy policies This comprehensive analysis, on file with the Ruckelshaus Institute at the University of Wyoming, underscores the significance of local stakeholder engagement in the evolving landscape of oil and gas development.
7 Brian F Yates & Celesa L Horvath, Social License to Operate: How to Get it, and How to Keep it 1, Pacific Energy Summit (Summit Working Papers,
2013), available at: http://www.nbr.org/downloads/pdfs/eta/PES_2013_summitpaper _Yates_Horvath.pdf
This article examines the use of collaborative approaches in oil and gas development, with a focus on the United States, especially after Shell sold its interests in the area Key discussions included engagements with Shell executives and the International Petroleum Industry Environmental Conservation Association (IPIECA) on collaboration and securing a social license to operate An Energy and Collaboration Summit brought together current and former energy leaders in Jackson, Wyoming, to discuss challenges and best practices in collaborative decision-making The discussions highlighted opportunities for innovative strategies to enhance the social license to operate in the Western U.S., particularly on public lands.
The Shell study, discussions with Shell and IPIECA, and the Energy and Collaboration Summit highlight the key incentives and disincentives that influence companies' willingness to engage and collaborate with stakeholders and communities These insights emphasize the importance of building strong relationships to secure a social license to operate, ultimately fostering sustainable and mutually beneficial partnerships.
The federal regulatory process, particularly the National Environmental Policy Act (NEPA), shapes incentives and disincentives for public land use NEPA environmental reviews, such as oil and gas project EISs, typically take around 4.4 years to complete, leading to frustration over delays and costs Calls for NEPA reform emphasize streamlining the process, but if streamlining triggers litigation and results in a judicial order for a supplemental EIS, an additional 2.3 years can be added, further increasing expenses To effectively implement a streamlined NEPA process, adopting collaborative approaches is essential to minimize litigation risks and prevent delays.
While the previous literature on the emergence of a social license to operate in the United States has focused on private oil and gas
8 Energy & Collaboration Summit, Jackson, Wyoming, (Mar 6,
2014) (unpublished conference report; on file with the author)
10 John Ruple & Mark Capone, NEPA - Substantive Effectiveness Under a Procedural Mandate: Assessment of Oil and Gas EISs in the Mountain West,
This article highlights the potential of NEPA to foster greater collaboration in federal public land oil and gas projects, helping to reduce conflicts and enhance value for all stakeholders Unlike private land development, NEPA compliance offers a structured framework that enables companies to engage communities and stakeholders effectively, facilitating a social license to operate The discussion begins with an overview of the social license concept, including its emerging role in the U.S oil and gas sector through two illustrative case studies Subsequently, the article emphasizes that collaborative processes are essential ingredients for achieving and maintaining social license, promoting sustainable and cooperative development practices.
IV we discuss NEPA and how greater collaborative efforts can be incorporated into the NEPA process to achieve a social license In Section
This article addresses strategies to overcome barriers to collaboration within the NEPA process, focusing on overcoming challenges posed by the Federal Advisory Committee Act Enhancing collaboration among federal land agency personnel can significantly improve the NEPA process, enabling project proponents—such as those involved in coal, renewable energy, and timber—to leverage the legal licensing framework Ultimately, fostering increased collaboration helps these stakeholders achieve a social license to operate, ensuring more successful and community-supported federal land projects.
S OCIAL L ICENSE B ACKGROUND
A social license to operate is a voluntary and often informal approval granted by the community, reflecting their acceptance of a company's operations It represents the community’s expectations and demands, which come from neighborhoods, environmental groups, and other civil society members Essentially, it signifies community approval and trust, crucial for sustainable business practices.
13 Neil Gunningham, et al., Social License and Environmental Protection: Why Businesses go Beyond Compliance, 29 L AW & S OC I NQUIRY 307,
308 (2004), http://scholarship.law.berkeley.edu/facpubs/675/
The term "social license" was first introduced at a 1997 World Bank meeting by Jim Cooney, a Canadian mining executive, who highlighted the community's ability to oppose mining projects It gained further significance following the 2006 United Nations Declaration on the Rights of Indigenous Peoples, which mandates extractive industries operating on indigenous lands to obtain free, prior, and informed consent (FPIC) from local communities.
A social license to operate, originally used in the mining sector, has increasingly been applied to other energy industries as a strategic tool to manage environmental advocacy pressures It serves as a powerful leverage point against watchdog groups that act as de facto regulators, influencing company decisions and public perception Notable incidents, such as Shell’s miscalculation in the 1990s regarding the sinking of the Brent Spar oil platform, have prompted a broader corporate reevaluation of engaging with social license principles These examples highlight the importance of maintaining social acceptance and environmental responsibility to ensure sustainable operations in the energy sector.
UK government had been obtained 18 Much to Shell’s surprise, public opposition was significant, and protests against Shell were waged across Europe 19 Shell’s international reputation was substantially damaged and
The term "social license to operate" gained widespread adoption within the mining industry around 2002; however, it is not a new concept, as it has long been recognized as playing a vital societal role where social norms can precede and even override legal regulations (Gehman, Lefsrud, & Fast, 2017) Jim Cooney reflects on the 20th anniversary of the term, highlighting its significance in shaping industry practices and community relationships (Cooney, 2017).
(offering his personal account of how his use of ‘social license” occurred at the 1997 World Bank meeting)
15 Kathleen M Wilburn & Ralph Wilburn, Achieving Social License to Operate Using Stakeholder Theory, 4 J OF I NT ’ L B US E THICS , 3, 4 (2011)
19 Jesper Grolin, Corporate Legitimacy in Risk Society: The Case of
Shell's decision to dismantle and recycle the Brent Spar platform on land was influenced by the significant impact on its sales Had Shell conducted more extensive community outreach and obtained a social license alongside governmental approval, it might have mitigated the negative consequences Effective stakeholder engagement and public support are crucial for ensuring smoother operational decisions and maintaining corporate reputation.
In his book, The Social License: How to Keep your Organization
John Morrison explains that, fifty years ago, the resource extraction sector operated under government-issued legal licenses and permits, which they upheld consistently However, in today's globalized world with heightened scrutiny and increased local community engagement, securing broad-based local support is essential; without it, obtaining and maintaining legal licenses becomes difficult.
Major oil and gas extraction companies and their investors are increasingly acknowledging that securing a social license to operate is essential for sustainable development Negative community impacts can harm a company's reputation, lead to operational delays, reduce profits, and jeopardize future investment opportunities Therefore, understanding and managing community relations is crucial to maintaining a company’s viability and reputation in the industry.
Securing a social license to operate requires continuous engagement with communities through transparent communication and active participation in decision-making processes Establishing effective conflict resolution mechanisms is essential to build mutual trust and maintain community support Ultimately, a social license hinges on fostering strong relationships and maintaining open dialogue with stakeholders to ensure sustainable and responsible operations.
22 J OHN M ORRISON , T HE S OCIAL L ICENSE : H OW TO K EEP Y OUR
23 Emma Wilson, What is the Social License to Operate? Local Perceptions of Oil and Gas Projects in Russia’s Komi Republic and Sakhalin Island,
3 T HE E XTRACTIVE I NDUS AND S OC ’ Y , 73, 73 (2016)
24 Don C Smith, Jessica Richards, & R.J Colwell, Where “Shale”
Effective communication and transparency are essential for obtaining a social license to operate in shale plays outside the United States Providing complete and accurate public disclosure of relevant information enables communities to understand the risks and benefits of energy development projects Engaging in meaningful dialogue involves discussing known facts and uncertainties, supported by credible, science-based information, so that all stakeholders can participate in fact-based discussions rather than opinions This approach fosters trust and shared understanding between companies and communities in the planning and operation of industrial activities.
A social license to operate is a dynamic and impermanent approval that can be revoked if public perceptions and opinions shift As gold investor Pierre Lassonde highlighted in 2003, trust—fundamental to maintaining this license—is built over years but can be lost in seconds The revocation of a social license often occurs when communities or stakeholders lose confidence in a company's practices or impact.
“perceived risk or lack of benefits to stakeholders.” 29
A Social License to Operate vs a Legal License to Operate 210 B The Emergence of Social License Application in the United
A social license to operate is not a legal license to operate, as it is not based on legal requirements, but rather on the degree to which a
& D Scott Slocombe, Exploring the Origins of “Social License to Operate” in the Mining Sector: Perspectives from Governance and Sustainability Theories, 37 R ES
25 Evan House, Fractured Fairytales: The Failed Social License for
Unconventional Oil and Gas, 13 W YO L R EV 5, 54 (2013)
28 Pierre Lassonde, What Shade of Green are You?, Melbourne
Mining Club, 5 (Aug 8, 2003) available at: http://www.melbourneminingclub.com/ wp-content/uploads/2014/03/ Pierre-Lassonde-8-August-2003.pdf
29 Elizabeth Holly & Clark Mitcham, The Pebble Mine Dialogue: A
Case Study in Public Engagement and the Social License to Operate, 47 R ES P OL ’ Y ,
A social license to operate is achieved when a company’s activities align with the expectations of local communities, society, and various stakeholder groups (R.G Boutilier, 2014) Unlike a legal license, which is issued by a government and grants permission to operate while ensuring ongoing compliance with laws and regulations, a social license is a voluntary endorsement that reflects community trust and acceptance These licenses are interdependent; a legal license must typically be in place before a social license can be considered, as the latter extends the legitimacy of regulatory approval by fostering positive community relationships (Impact Assess Proj Apprais., 2016) Together, legal and social licenses reinforce a company's legitimacy and sustainable operation.
In the oil and gas industry, a legal license provides the formal framework for energy companies to access land and extract natural resources while adhering to environmental regulations However, when exploration and production activities are controversial or contested, companies also need to secure a social license to operate, which reflects society’s approval and trust beyond legal compliance A social license grants companies the perceived freedom to use land and resources without interference, embodying societal expectations that go beyond mere legal obligations.
Traditionally, corporations have viewed compliance with government legislation as fulfilling both legal requirements and social obligations, reflecting societal expectations While adherence to laws was essential, companies were often encouraged to go beyond mere compliance only when it provided financial benefits This perspective highlights the evolving understanding of corporate responsibility, where legal compliance serves as a baseline, and proactive social engagement can create added value Emphasizing this approach aligns with the growing demand for businesses to contribute positively to society while ensuring legal adherence.
31 Smith, Richards, & Colwell, supra note 24, at 14-3
34 Brian J Preston, The Adequacy of the Law in Satisfying Society’s
Expectations for Major Projects, I NTERNATIONAL B AR A SSOCIATION A NNUAL
Historically, corporations' motivation for proactive health and safety management was limited, but perspectives have evolved significantly Today, companies recognize that social obligations are distinct from legal requirements, emphasizing their responsibility beyond mere compliance They understand that hazards and harms, even if not currently illegal, could become so in the future, exposing them to both social criticism and legal liabilities This shift underscores the growing importance of proactive safety practices to manage future risks and uphold corporate responsibility.
Social licensors often impose requirements that are even more stringent than traditional legal license regulators, emphasizing the importance of social acceptance Many companies fear enforcement actions not solely due to penalties but because such actions can damage reputation and threaten their social license Failure to address social concerns or secure social approval can lead to increased regulatory restrictions, highlighting the critical role of maintaining a positive social license for business sustainability.
Companies face inherent limits in how far they will go beyond legal licensing to fulfill their social license to operate Key constraints include economic considerations, the reasonableness of social licensors’ demands, and the responsiveness of legal and political actors in enforcing these demands Ultimately, a company’s willingness to exceed legal compliance is primarily driven by the potential impact on its economic bottom line.
Gunningham highlights that while corporations often find it cost-effective to reduce waste for environmental protection, ongoing environmental degradation indicates that financial incentives alone are insufficient As a result, there is a growing political demand for increased government regulation and legal coercion to compel corporations to adopt more effective environmental measures.
40 Smith, Richards, & Colwell, supra note 24, at 14-3 to 14-4
B The Emergence of Social License Application in the United States Oil and Natural Gas Sector; Two Case Studies
The concept of social license to operate was first used in the oil and gas industry in the developing world during the 20th century, but it only gained prominence in the developed world in the 2010s with the rise of unconventional oil and gas development Advances in drilling technology, often referred to as the shale gas revolution, have significantly increased natural gas production in the United States These new technologies now allow drilling in sensitive locations such as urban areas and high-conservation-value public lands, leading to public and community opposition As a result, natural gas companies are increasingly required to reconsider their public engagement strategies Industry expert Alex Hohmann emphasizes that successful project development depends more on earning and maintaining a social license than just obtaining legal approval, highlighting the importance of public trust in the energy sector.
The adoption of social license practices in the natural gas industry has been slow to gain traction, leading to a limited number of examples, especially within the federal public land context Despite the increasing importance of community engagement and environmental responsibility, widespread implementation remains challenging This slow uptake highlights the need for greater awareness and integration of social license principles to promote sustainable development in natural gas extraction on federal lands.
We have selected two case studies to highlight the emerging application of a social license to operate in the U.S oil and gas sector The first case
46 Don C Smith & Jessica M Richards, Social License to Operate:
Hydraulic Fracturing-Related Challenges Facing the Oil & Gas Industry, 1 O IL &
47 Monika Ehrman, The Next Great Compromise: A Comprehensive
Response to Opposition Against Shale Gas Development Using Hydraulic Fracturing in the United States, 46 T EX T ECH L R EV 423, 425 (2014)
48 See Aldo Svaldi, Drilling and Development are on a Collision Course in Northeastern Colorado, The Denver Post, Aug 7, 2017; Brittany Patterson, Can Zinke Squeeze More Oil From Public Lands?, E&E News, July, 7 2017
49 Smith & Richards, supra note 46, at 84
50 Id at 117 (citing interview by Stephanie Joyce with Alex
Hohmann, Stakeholder Relations Manager for Anadarko Petroleum, In Relationships
101: Oil and Gas Looks for a Social License to Operate, WYOMING PUBLIC
RADIO (Dec 5, 2014), available at https://insideenergy.org/2014/12/05/ relationships-101-oil-and-gas-look-for-a-social-license-to-operate/.)
This study highlights the use of Memorandums of Understanding (MOUs) to secure a social license for expanding shale development on private land near Colorado's suburban areas, effectively addressing local tensions Additionally, it examines how formal and private bilateral negotiations can facilitate obtaining a social license to develop a natural gas field on sensitive federal lands in Utah's Nine Mile Canyon-West Tavaputs Plateau region These approaches demonstrate strategic methods to balance resource development with community and environmental concerns.
Case studies reveal two key insights: first, obtaining a social license to operate creates opportunities to add value for all stakeholders; second, employing a deliberate, principled collaborative process can further strengthen the social license, even when there is existing cooperation among parties.
Urban Private Land Case Study–Shale Gas Development on
Oil and gas development along Colorado’s Front Range dates back to the early 20th century, with even Boulder hosting active oil fields The fracking boom of the 2000s expanded oil and gas activities into growing suburban and urban areas, bringing these operations into communities’ backyards As a result, Colorado has become a focal point in the national debate over hydraulic fracturing regulation.
52 Patty Limerick, The Fractured Terrain of Oil and Gas Opposition, High Country News, Feb 22, 2016); See also Lucas Satterlee, Clearing the Fog: A
Historical Analysis of Environmental and Energy Law in Colorado, 28 V ILL E NVTL L.J 1, 11 (2017) (describing the early energy production efforts in Colorado including a coal mine that began operations near Boulder, CO in 1859)
53 Austin Shaffer, Skylar Zillox, & Jessica Smith, Memorandum of
Understanding And the Social License to Operate in Colorado’s Unconventional Energy Industry: A Study of Citizen Complaints, 35 J E NERGY N AT R ES L., 69, 69-
West, captured the sentiment of the conflict with this insightful comment:
“the boom of activity in the planet's underworld has brought to the surface not only an abundance of hydrocarbons, but a deep reservoir of buried political and social tension.” 55
The rapid pace and extensive reach of the Front Range hydraulic fracturing boom caused concern among local communities, leading to bans, moratoria, and ballot measures aimed at restricting fracking statewide However, the Colorado Supreme Court ultimately invalidated these local bans and moratoria as unenforceable Efforts to place statewide restrictions on the ballot included proposals to limit oil and gas operations within 2,500 feet of occupied buildings and to empower local governments to restrict fracking, but both failed due to insufficient signatures Despite these setbacks, the debate over hydraulic fracturing continues to influence policy discussions across Colorado.
Patty Limerick, in her article "The Fractured Terrain of Oil and Gas Opposition," emphasizes that the division into two rigid and opposed groups oversimplifies the complex nature of the Front Range hydraulic fracturing debate She highlights that this complexity arises from multiple sources, including the often unheard middle population, as well as the influences of class, race, and ethnicity.
“converge in second concealed layer”, (3) a recognition that companies come in all different sizes and include principal players and subcontractors, (4) and that the term
“opponents” can include everyone from a neighboring resident to an oil and gas wellsite to national environmental activists Id
56 See Shaffer et al., supra note 53, at 70 (hereinafter Shaffer)
In the 2016 Colorado Supreme Court case of City of Fort Collins v Colorado Oil, the court determined that Fort Collins’ five-year moratorium on fracking and the storage of fracking waste within city limits was preempted by state law, rendering it invalid and unenforceable This decision reaffirmed that local municipalities cannot impose bans on fracking when state regulations govern oil and gas activities Similarly, in City of Longmont v Colorado Oil and Gas, the court reinforced that state law takes precedence over local bans on hydraulic fracturing, underscoring the importance of statewide regulation over local restrictions on oil and gas development.
The Colorado Supreme Court ruled in 2016 that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within city limits was preempted by state law As a result, the ban was declared invalid and unenforceable This decision highlights the dominance of state regulation over local government restrictions on hydraulic fracturing and waste management The ruling emphasizes the importance of understanding state preemption issues when considering local bans on fracking activities in Colorado.
58 Mark K Matthew & Joey Bunch, Colorado Anti-Fracking Measures Fail to Make Ballot; Possible Forgery Alleged, Denv Post, Aug 29, 2016
Front Range communities have continued to pass short-term moratoriums while they consider new regulations 61
Amid ongoing conflicts, oil and gas operators continue drilling near expanding Front Range communities, facing social and political tensions To address these challenges, many companies are proactively seeking a social license by engaging with local communities One key strategy is developing Memoranda of Understanding (MOUs) with impacted residents, fostering trust and cooperation in the region.
Erie, Colorado, initially implemented a drilling moratorium to suspend oil and gas development until air quality studies and collaborative protocols were established During this suspension, the town negotiated and signed a Memorandum of Understanding (MOU) with two oil and gas companies, which required these companies to include a list of best practices with their drilling permits submitted to the Colorado Oil and Gas Conservation Commission Following the signing of the MOU, Erie lifted its moratorium, allowing oil and gas activities to resume with enhanced safety and environmental measures.
Two oil and gas companies successfully gained a social license by negotiating and implementing a memorandum of understanding (MOU) that incorporated community-negotiated best practices Securing this social license from the community led to the lifting of a drilling moratorium, enabling the companies to proceed with their operations.
61 The Associated Press, Lafayette Warned Against Oil, Gas Drilling
Moratorium, The Denv Post, Sept 30, 2017
63 See Univ of Colorado, Database of MOUs, Oilandgasbmps.org, http://www.oilandgasbmps.org/resources/MOU-databases.php (last visited (April 18,
2018) This database allows users to access the MOUs and to compare the best management practices contained within them
This case study highlights how avoiding public comment and criticism can streamline litigation processes, as seen in Front Range communities that implemented drilling moratoriums and bans The collaborative nature of the MOU negotiations remains uncertain, particularly whether City of Erie officials engaged directly with community members to develop best practices However, it is likely that Erie officials established sufficient legitimacy, credibility, and trust with residents, which not only granted the city a social license to negotiate but also authorized oil and gas companies to operate responsibly.
Researchers from the Colorado School of Mines’ Center for a Sustainable West have published studies indicating that MOUs can influence community participation in oil and gas governance by directing citizen complaints towards specific issues, likely due to perceived improvements in environmental performance They found that drilling encroachment, particularly the proximity of wells to residential areas rather than the drilling rate, is the primary factor driving public complaints against oil and gas development.
71 See Skylar Zilliox & Jessica M Smith, Supraregulatory Agreements and Unconventional Energy Development: Learning from Citizen Concerns, Enforceability and Participation in Colorado, 4 T HE E XTRACTIVE I NDUS
AND S OC ’ Y 69 (2017); Shaffer, supra note 53, at 69
Researchers at the Colorado School of Mines identified noise as the primary cause of complaints among residents affected by suburban oil and gas development They found that suburbanites are generally willing to coexist with industrial activities, favoring noise reduction but remaining agreeable to other aspects of ongoing oil and gas operations.
Id This is in contrast to rural populations who have more strongly opposed oil and gas activity on the grounds that it changes people’s relationship with the land Id
Memorandums of Understanding (MOUs) offer a vital platform for energy companies and communities to align their expectations and foster mutual understanding They facilitate a learning process within the energy industry and enable companies to listen to communities near their operations According to the researcher, MOUs strengthen the relationship between energy companies and local communities, allowing oil and gas operations to proceed more smoothly by addressing concerns that might otherwise go unresolved.
Engaging in MOU negotiations enabled both oil and gas companies and local communities to achieve greater value than through other means The companies benefited from the removal of the community drilling moratorium, facilitating continued development, while the communities gained from the implementation of negotiated best practices that minimized environmental and social impacts This case study demonstrates that the MOU negotiation process is essential for creating mutual value and fostering sustainable industry-community relationships.
Federal Land Case Study: Nine Mile Canyon Case Study
T HE P URSUIT OF S OCIAL L ICENSE IS E SSENTIALLY A
There is no uniform approach to obtaining a social license because circumstances vary among development projects, geography, community characteristics and industry dependence, and stakeholder values and
Federal land managers should view the development of NEPA alternatives as a strategic tool to foster stakeholder dialogue, facilitate effective negotiations, and promote timely decision-making by minimizing the risk of delays caused by extended NEPA review processes.
Researchers and trade associations have identified key ingredients and guidelines necessary for obtaining a social license, which are characterized by common elements and processes Notably, Denver University Law Professor Don Smith and Western State Colorado University co-author Jessica Richards have summarized these trade association guidelines, highlighting the essential factors or "ingredients" required to earn social acceptance and legitimacy.
Building trust is a fundamental component of earning a social license, as it fosters meaningful dialogue around controversial issues Trust is defined as the shared belief that organizations will act in good faith, adhere to commitments, maintain honesty in negotiations, and avoid exploiting opportunities for advantage Achieving trust relies heavily on open communication and active community engagement, which involves a reciprocal exchange of information through various channels, including one-on-one conversations with community members These elements—trust, open communication, transparency, and accountability—are essential for supporting constructive discussions on divisive topics and maintaining a strong social license.
115 Smith, Richards, & Colwell, supra note 24, at 14-8
116 See IPIECA, Oil and Gas Industry Guidance on Voluntary
Sustainability reporting is an essential practice for the oil and gas industry to demonstrate transparency and commitment to sustainable development, as highlighted in the 2010 update by IPIECA According to IPIECA.org, comprehensive sustainability reports help organizations disclose their environmental, social, and governance (ESG) performance effectively Additionally, the concept of the “Social License to Operate” is critical in sectors like mining and oil and gas, where community acceptance is vital for ongoing operations, supported by insights from Prno and Slocombe’s research on governance and sustainability theories Implementing robust sustainability reporting practices not only enhances corporate accountability but also fosters stakeholder trust and aligns business goals with broader sustainable development objectives.
117 Smith & Richards, supra note 46 at 111-133
120 Ann Thomson and James Perry, Collaboration Processes: Inside the Black Box, P UB A DMIN R EV , 20, 22 (Dec 2016) (citing L.L Cummings and Philip Bromiley, THE ORGANIZATIONAL TRUST INVENTORY 303 (Roderick
M Kramer and Tom R Ryler (1996)) stakeholders to public meetings and forums 121 Transparency on the part of an industry seeking social license requires full disclosure of steps being taken to minimize risks, acknowledgment of challenges and failures, and disclosure of clearly defined steps to continually improve operations 122 A company is accountable if it provides a clear signal to affected communities that attainment and maintenance of a social license is a top priority, such as ensuring adherence to social license principles through its compensation of executives, managers, employees, and subcontractors 123
Researchers like Gehman et al highlight that social license is closely connected to trust and legitimacy According to pioneering scholars Susan Joyce and Ian Thompson, social license to operate includes three normative components: legitimacy, credibility, and trust Legitimacy is defined as conforming to established legal, social, and cultural norms, both formal and informal, while credibility refers to the capacity to elicit belief Trust functions as the foundational element that underpins these components, fostering acceptance and support for organizational practices Incorporating these core concepts enhances understanding of how social license is granted and maintained within communities and stakeholders.
Willingness to be vulnerable to risk or loss through the actions of another highlights the importance of trust and credibility in interpersonal and organizational relationships Joyce and Thompson distinguish between project acceptance and approval, emphasizing that legitimacy is essential for acceptance, while credibility and trust are critical for gaining approval These elements collectively contribute to the foundation of effective collaboration and decision-making processes.
121 Am Petroleum Inst., Community Engagement Guidelines, ANSI/ API 1003 First Edition, (July 2014), http://www.api.org/~/media/files/policy/explora tion/100-3_e1.pdf (last viewed January 17, 2018)
122 Smith & Richards “Social License to Operate," supra note 46, at
118 (citing Extracting the Facts: An Investor Guide to Disclosing Risks from Hydraulic Fracturing Operations, Interfaith Center on Corporate Responsibility and
Investor Environmental Health Network 3, http://iehn.org/documents/frackguidance. pdf (2011))
124 J OEL G EHMAN , L IANNE M L EFSRUD , AND S TEWART F AST , SOCIAL
LICENSE TO OPERATE : LEGITIMACY BY ANOTHER NAME ?, 60(2) Canadian Public Administration, 293, 295 (2017)
The social license to operate is a critical concept that encompasses the community’s ongoing approval and acceptance of a company’s activities According to Ian Thomson and Susan Joyce, obtaining this license is often challenging due to the complex expectations and concerns of local stakeholders They emphasize that successful engagement and transparent communication are essential for building trust and securing social acceptance Their presentation highlights the importance of understanding community perspectives to navigate social challenges and ensure sustainable operations in the resource development sector.
Smith and Richards highlight key procedural elements that enhance social license, such as identifying stakeholders, expanding decision-making processes, and establishing agreements and grievance mechanisms A stakeholder is broadly defined as any person, group, or entity with an interest or concern in an organization, but in project contexts, it more practically refers to those affected by or strongly interested in a project Stakeholders interact with companies both as citizens and as representatives of affected or interested communities, emphasizing their dual roles in shaping social license.
Traditional oil and gas project planning often relies on a centralized decision-making process where companies propose and defend development plans without sufficient community involvement, limiting their ability to gain social license Smith and Richards advocate for expanding decision-making procedures by engaging communities early in the project’s design phase, fostering community ownership and addressing local concerns Early community involvement ensures stakeholder voices reach corporate decision-makers effectively, helping companies build trust and achieve social acceptance for their projects.
128 Smith & Richards, supra note 46, at 121–125
129 Am Petroleum Inst., supra note 121, at vi
130 U.S Environmental Protection Agency Science Advisory Board,
Improved Science-Based Environmental Stakeholder Processes, EPA-SAB-EC-
The article references COM-01-006 and provides a link to Yosemite.epa.gov for detailed information According to the report available at https://yosemite.epa.gov/sab/sabproduct.nsf/42E4E3AF4DC15AB4852578650059DE8F/$File/eecm01006_report_appna-e.pdf, the definition of stakeholders is extrapolated from a discussion on pages 6-7, emphasizing the importance of identifying relevant parties affected by environmental policies This highlights how stakeholder engagement is crucial for effective environmental decision-making and policy development.
131 P UBLIC P ARTICIPATION I N E NVIRONMENTAL A SSESSMENT A ND
D ECISION M AKING 15 (Thomas Dietz and Paul C Stern eds., 2008)
132 Smith & Richards, supra note 46, at 123
134 Id 123–124 (citing Jim Kent & Kevin Preister, Surging Industries in Global Energy: Creating a New Era in Community Engagement, R IGHT OF W AY
Community involvement in company decisions is essential, particularly through the development of community-based grievance mechanisms These grievance procedures are processes, either fully or partially managed by the company, designed to effectively address and resolve community concerns or grievances Implementing such mechanisms fosters transparency and strengthens trust between the company and the local community, promoting sustainable and responsible business practices.
The social license to operate primarily relies on meaningful, face-to-face dialogue between a company and the community during the planning and operational phases of industrial activities This ongoing interaction fosters long-term relationships, encourages collaboration, and helps resolve conflicting interests to achieve shared goals Effective stakeholder engagement involves constructively exploring differences, which builds the legitimacy, credibility, and trust essential for securing and maintaining the social license to operate.
Collaboration encompasses various concepts such as collaborative problem solving, decision-making, governance, environmental conflict resolution, alternative dispute resolution, consensus building, and co-management It involves structured, face-to-face interactions among diverse stakeholder representatives to foster early participation, develop stable and widely supported policies, and minimize future disputes or legal challenges.
137 B ARBARA G RAY , C OLLABORATING : F INDING C OMMON G ROUND FOR M ULTIPARTY P ROBLEMS 5 (1998)
138 P ROMISE AND P ERFORMANCE OF E NVIRONMENTAL C ONFLICT
R ESOLUTION 10 (Rosemary O'Leary, and Lisa Bingham eds., 2003)
Collaborative processes stand out from other forms of public involvement due to their higher interaction intensity, specific goals set by officials, and stakeholders' implicit authority According to the International Association of Public Participation (IAP2), collaboration is part of a spectrum of public participation methods that ranges from informing and consulting to involving, collaborating, and empowering While consulting aims to gather public feedback on analyses and decisions, officials retain their authority but actively seek input from stakeholders, as seen in public hearings and meetings designed to provide advice and facilitate meaningful engagement.
NEPA: A U NIQUE O PPORTUNITY TO I NCLUDE C OLLABORATION TO
COLLABORATION TO ACHIEVE A SOCIAL LICENSE ON PUBLIC
LAND OIL AND GAS PROJECTS
Many oil and gas operators on federal public lands mistakenly believe that obtaining legal licenses, such as NEPA compliance, automatically grants them social license to operate Despite opportunities to add value through community engagement and stakeholder relations, this social license has rarely been actively cultivated This misconception was highlighted during the 2015 Energy & Collaboration Summit in Jackson, Wyoming, where industry leaders acknowledged that federal land energy operators often equate legal compliance with social acceptance Recognizing the distinction between legal permission and social license is crucial for enhancing responsible development and building trust with local communities.
160 Energy & Collaboration Summit, Jackson, Wyoming (Mar 6,
2014) (unpublished conference report) (on file with the author)
The NEPA process can inhibit collaboration and prevent companies from going beyond mere compliance to actively engage with affected communities and stakeholders, thereby hindering the achievement of a social license to operate Increased opposition to federal public land oil and gas projects highlights the importance of implementing well-structured, collaborative processes, which offer greater value than simply adhering to legal licensing requirements like NEPA Engaging in meaningful collaboration can foster community trust and support, ultimately benefiting project success and social acceptance.
Contrary to some perceptions, NEPA is not a barrier to enhancing collaborative processes for achieving a social license to operate A review of NEPA regulations, agency guidance, case law, and discretionary limits reveals that the NEPA process offers a unique opportunity for federal public land oil and gas projects to incorporate stakeholder collaboration Unlike private land development, compliance with NEPA provides a structured framework for oil and gas companies to engage communities and stakeholders effectively, facilitating the achievement of a social license to operate.
The NEPA Process Explained
At the heart of NEPA is a mandate to all federal agencies to prepare a “detailed statement” for every “major Federal actions significantly affecting the quality of the human environment.” 164 This
“detailed statement” must include: the environmental impact of the
This section includes content originally published by the Rocky Mountain Mineral Law Foundation in their 2017 manual on the National Environmental Policy Act (NEPA) According to Temple Stoellinger, effectively engaging with agencies through well-crafted NEPA comments is crucial to influence final decisions, emphasizing the importance of voicing concerns to ensure your perspective is considered in the environmental review process.
Under 42 U.S.C § 4332(c) (2018), the environmental review process must include an assessment of potential adverse environmental effects that cannot be avoided, evaluation of feasible alternatives to the proposed action, and analysis of the relationship between short-term environmental uses and long-term productivity Additionally, it requires consideration of any irreversible and irretrievable commitments of resources Prior to preparing the environmental impact statement, a thorough understanding of these factors is essential for informed decision-making.
When preparing a detailed statement, the federal agency is required to consult with and obtain comments from any other federal agency with legal jurisdiction or specialized expertise concerning the environmental impact involved This coordination ensures that all relevant agencies provide input to address potential environmental concerns comprehensively.
To understand the NEPA process in detail, it is essential to refer to the CEQ NEPA regulations established under NEPA President Jimmy Carter directed the CEQ in 1977 to develop implementing regulations, which are mandatory for all federal agencies These regulations, located at 40 C.F.R §§ 1500-1508, guide agencies on how to comply with NEPA procedures by requiring them to identify and assess reasonable alternatives that avoid or minimize adverse environmental impacts Specifically, the CEQ regulations provide clear guidance on when and how to prepare the mandatory environmental impact statements needed for federal projects, ensuring comprehensive environmental review and decision-making.
Executive Order No 11,991, issued on May 24, 1977, directs the Council on Environmental Quality (CEQ) to establish regulations for federal agencies to ensure the proper implementation of the procedural requirements of the National Environmental Policy Act (NEPA) This order emphasizes the federal government’s commitment to protecting and enhancing environmental quality through clear procedural guidelines, as highlighted by Penn State University Law Professor Jamison.
Colburn highlights that NEPA does not specify the Council on Environmental Quality (CEQ) enacting rules; instead, these regulations were established under the directive of President Jimmy Carter According to Jamison E Colburn in "Administering the National Environmental Policy Act," the authority for these rules originates from presidential mandates rather than NEPA itself.
NEPA itself is not derived directly from statutory law; instead, it stems from the president’s constitutional powers that underpin NEPA regulations, as referenced in Exec Order No 11991 (April 2015) Professor Colburn emphasizes that NEPA’s ultimate goal is to transform the United States into a sustainable civilization, with CEQ regulations playing a crucial role in turning those goals into enforceable procedures He notes that if a pre-enforcement review petition challenging CEQ’s authority had been feasible, it might have revealed that CEQ lacks independent power to administer NEPA authority.
170 Id § 1500.2 statement (EIS) 171 Most oil and gas projects on federal public lands are
Federal agencies undertaking major actions that significantly impact the human environment are required to prepare an Environmental Impact Statement (EIS) The EIS process includes key stages such as scoping, drafting, finalizing the document, and recording the agency’s decision in a Record of Decision (ROD) This process ensures thorough assessment and transparency for projects with substantial environmental effects.
The initial phase of an Environmental Impact Statement (EIS) is called "scoping," which defines the range of actions, alternatives, and impacts to be considered During this process, federal agencies are required to identify and invite participation from affected agencies, Indian tribes, project proponents, and interested stakeholders While public meetings may be held, agencies are not mandated to do so The scoping process begins with the agency filing a notice of intent in the Federal Register, which must include a description of the proposed action and alternatives, details about any planned scoping meetings, and contact information for questions related to the EIS.
The next step in the NEPA process is the preparation of a draft Environmental Impact Statement (EIS), which must align with the scope established during the scoping process According to CEQ regulations, draft EISs should include all necessary analyses and information required for the final EIS They must provide a comprehensive and balanced discussion of potential environmental impacts, ensuring transparency and thorough evaluation.
175 Id (The definition of scope also includes a list of actions, alternatives and impacts an agency can consider to determine the scope Id.)
176 Id § 1501.7(a)(1) (emphasis added) (While interested persons is not defined, we can assume it means interested members of the public Id.)
179 Id § 1508.22 (definition of a notice of intent)
Federal agencies are required by 40 C.F.R § 1502.9(a) (2017) to disclose any significant environmental impacts in their Environmental Impact Statements (EIS) and to inform the public of reasonable alternatives that could minimize adverse effects or improve environmental quality Once a draft EIS is completed, agencies must actively solicit comments from state and local agencies, Indian tribes, other federal agencies, project applicants, and the public to ensure all interested or affected parties have a voice To facilitate this, agencies publish a Notice of Availability (NOA) in the Federal Register, notifying the public that the draft EIS is accessible and comments are being accepted, with a minimum period of 45 days for public comment submission.
Agencies are required to respond to comments received on the draft Environmental Impact Statement (EIS), addressing any responsible opposing views that were not adequately discussed, and clearly indicating their responses to the issues raised Once the final EIS is completed, the agency must circulate it using the same process as for the draft EIS to ensure transparency and public awareness Although agencies are not mandated to solicit comments on the final EIS, they have the option to do so to gather additional feedback and facilitate public engagement.
The final Environmental Impact Statement (EIS) is not the agency’s окончательный decision; instead, the agency's final decision is documented in a Record of Decision (ROD), which is prepared and signed after the final EIS has been issued.
In a ROD, agencies must state their decision regarding the proposed
The primary purpose of an environmental impact statement, as outlined in NEPA regulations, is to serve as an action-forcing tool that ensures federal policies and goals are integrated into ongoing government programs and activities.
186 Id § 1506.10(c) (allowing for extending and reducing the comment period Id.)
When making a decision, agencies are required to prepare a concise public record that includes all considered alternatives, clearly outlining the factors influencing their choice, such as economic, technical, and statutory considerations They must also specify whether all practical measures to avoid or minimize environmental harm were implemented, ensuring transparency and accountability in the decision-making process.
A Procedural Floor, Not a Procedural Ceiling
Procedural statutes such as NEPA set the minimum procedural requirements rather than strict limits, allowing agencies the flexibility to develop additional procedures that go beyond the statutory minimum As long as agencies do not breach NEPA's provisions, they have discretion to determine how to implement the statute, encouraging innovation and tailored approaches in environmental review processes.
CEQ regulations require public comment at key stages of the NEPA process; however, they do not restrict agencies from enhancing public involvement through collaboration The CEQ regulation § 506.6 emphasizes the importance of diligently involving the public in NEPA procedures and soliciting their input This framework provides federal agencies with the authority to expand public participation, including adopting collaborative processes to gain community trust and a social license.
When preparing NEPA documents for oil and gas projects, it is essential to consider not only the procedural requirements outlined by NEPA and CEQ regulations but also any procedural limitations set by the implementing agencies themselves The Bureau of Land Management (BLM) and the U.S Forest Service are key federal agencies responsible for such NEPA documentation, and in 2008, both agencies revised their NEPA regulations to encourage greater collaboration and streamline the environmental review process.
194 Emily S Bremer and Sharon B Jacobs, Agency Innovation in Vermont Yankee’s White Space, 32 J OF L AND U SE & E NVT ’ L L AW , 523, 535 (2017)
The BLM clarified its NEPA processes by stating that the responsible official may collaborate with interested or affected parties to modify proposed actions and alternatives before issuing a draft environmental impact statement (EIS) Similarly, the Forest Service refined its regulation to allow the responsible official to modify proposed actions and alternatives during the EIS process, promoting stakeholder engagement and adaptive decision-making.
Incorporating Collaboration Into the NEPA Process
In October 2007, the CEQ issued a comprehensive handbook for NEPA practitioners emphasizing collaboration with stakeholders throughout the environmental review process This guide highlights numerous opportunities for engaging interested parties during key phases such as defining the proposed action, scoping, developing alternatives, assessing environmental impacts, and monitoring implementation and the Record of Decision (ROD) The handbook offers practical advice on how to foster effective collaboration across all stages of NEPA, ensuring transparent and inclusive environmental planning The only NEPA-related activities not open to collaboration are limited to specific exceptions outlined within the guidelines.
197 See Forest Service National Environmental Policy Act Procedures
The Forest Service NEPA regulations were revised in 2008 to improve environmental analysis processes by aligning them with modern decision-making, collaboration, and adaptive management practices, emphasizing incremental alternative development and adaptive management strategies (73 Fed Reg 43,084, July 24, 2008) Similarly, the Department of the Interior updated its NEPA regulations in 2008 to better integrate NEPA procedures into current departmental decision-making processes, promoting collaboration and incremental decision-making for more effective environmental planning (73 Fed Reg 126, Jan 2, 2008).
199 Collaboration in NEPA: A Handbook for NEPA Practitioners,
Council on Environmental Quality (2007) http://energy.gov/sites/prod/files/
CEQ_Collaboration_in_NEPA_10-2007.pdf
200 Id the final decision-making and issuance of the ROD or Finding of No Significant Impact for which a federal agency alone is responsible 201
Federal agencies such as the Forest Service and BLM are actively working to enhance NEPA processes by adopting collaborative approaches that improve equity, effectiveness, and efficiency In 2008, both agencies revised their NEPA regulations to clarify that project alternatives can be modified incrementally through an iterative process, supporting stakeholder collaboration This approach, known as iterative NEPA (iNEPA), enables agencies to develop and refine project alternatives collaboratively, ensuring that a broad range of stakeholder interests are incorporated into Environmental Impact Statements (EIS).
The BLM and Forest Service can adopt an iNEPA approach to enhance stakeholder and community collaboration within the NEPA process This strategy fosters greater transparency and inclusivity, helping to build a social license to operate for oil and gas developments on federal public lands Implementing iNEPA promotes meaningful engagement with local communities and stakeholders, aligning project goals with public interests Ultimately, leveraging this approach can improve project approval processes while ensuring responsible resource management on federal lands.
Application of iNEPA
The traditional approach to Environmental Impact Statement (EIS) development involves informing the public and gathering feedback during the scoping and draft document stages Agencies outline potential alternative actions, including the "no action" alternative, and analyze each in detail to determine the most suitable option for decision-making Public engagement typically entails presenting the purpose and need, which are already established by the agency, followed by the review of draft proposals.
202 Jessica M Clement, Iterative NEPA and Collaboration, Proceedings of the iNEPA Workshop, 5 (Feb 10-11, 2014), (http://www uwyo.edu/haub/_files/_docs/ruckelshaus/pubs/2015-inepa-report.pdf
203 Forest Service National Environmental Policy Act Procedures Final Rule, 73 Fed Reg 43,084 (July 24, 2008); Dept of the Interior Implementation of the NEPA Environmental Policy Act (NEPA) of 1969, 73 Fed Reg 126 (Jan 2,
204 Iterative NEPA and Collaboration, supra note 202, at 7
According to 40 C.F.R § 1505.1(e) (2017), agency documents are often limited to public comment without allowing direct public engagement This restrictive process can lead to public distrust and potentially result in extended court challenges, as stakeholders may feel excluded from meaningful participation in decision-making.
Engaging the public continuously throughout the project development process allows agencies to collaboratively identify interests and develop comprehensive alternatives, rather than simply balancing input from multiple sources This collaborative approach involves stakeholders creating proposals that specify oil and gas infrastructure locations, impact mitigation measures, monitoring strategies, and other key operational details By fostering a learning process where stakeholders identify opportunities and address potential issues, agencies can develop mutually beneficial solutions that lead to a preferred, credible plan Such ongoing engagement helps build the legitimacy, trust, and social license necessary for the successful implementation of energy projects.
Agencies can involve the public in oil and gas decisions through two main approaches The first involves engaging stakeholders before publishing the Notice of Intent and starting the NEPA process, known as pre-NEPA collaboration This informal process allows the agency to discuss the project's purpose and need with stakeholders and develop alternative options that address their interests Such early engagement helps define the range of alternatives included in the draft environmental statement and can even influence the selection of the preferred alternative before the draft EIS is prepared, fostering more inclusive and transparent decision-making.
The second approach involves formally integrating collaboration into the NEPA process through iNEPA, where agencies work systematically with all stakeholders from the initial conceptualization of the proposed action to developing the final NEPA document iNEPA promotes iterative development of proposals and alternatives by engaging the public throughout the process, fostering adaptive and collaborative planning Though agencies are not mandated to incorporate collaboration within iNEPA, this approach easily lends itself to combining with an integrated, stakeholder-focused strategy Ultimately, iNEPA enables agencies to develop Environmental Impact Statements (EIS) that reflect meaningful stakeholder participation and collaboration.
iNEPA is especially effective when federal actions are complex and contentious, as a collaborative approach fosters efficiency and builds trust among agencies, project proponents, and stakeholders This method has been developed collaboratively and offers a preferred alternative that benefits all parties involved.
Efficient public engagement involves iteratively collaborating with diverse interests to develop alternatives that incorporate shared ideas, knowledge, and buy-in, streamlining decision-making and reducing unnecessary analysis While NEPA documents are often created primarily to meet legal requirements and manage agency workload, minimal public involvement can lead to perceptions of opposition and potential legal challenges The iNEPA approach enhances agency efforts by proactively integrating public deliberation into the planning process, fostering trust and social license By collaboratively developing preferred alternatives with stakeholders, agencies can save time, minimize the analysis of unused options, and build greater confidence in their actions and documentation.
Under NEPA, agencies and proponents can effectively collaborate with the public to develop inclusive and efficient solutions When decision-makers and staff are knowledgeable about iNEPA and other participatory methods, they can facilitate a transparent process that generates diverse alternatives satisfying multiple interests Utilizing iNEPA fosters social license for energy projects and encourages cooperation between energy companies and agencies to implement sustainable, community-supported solutions.
Marc J Stern et al explore the key tensions and areas of consensus in implementing the National Environmental Policy Act (NEPA) within the US Forest Service Their study highlights how NEPA influences forest management practices and underscores the challenges and opportunities for aligning environmental policies with operational objectives Published in the 2010 Journal of Environmental Management, this article provides valuable insights into the complex process of integrating environmental review procedures into federal forestry operations Understanding these dynamics is essential for policymakers and environmental professionals striving to balance ecological preservation with resource utilization.
212 Jessica Western (Clement) & Michele Straube, iNEPA, the iPhone of Environmental Impact Review, Makes NEPA more User-Friendly, 30 A.B.A S EC
OF THE E NV ’ T , E NERGY , AND R ES , 41, (2015).
Using iNEPA to Foster Collaboration to Achieve a Social
T HE F EDERAL A DVISORY C OMMITTEE A CT , THE E LEPHANT IN THE
Despite the flexibility provided by NEPA, CEQ NEPA regulations, and the agency’s updated iNEPA regulations to incorporate public collaboration and achieve a social license, federal legal constraints such as the Federal Advisory Committee Act (FACA) significantly limit agencies' ability to engage the public effectively in NEPA processes.
The Federal Advisory Committee Act (FACA), enacted in 1972 during the “good government” movement of the 1970s, regulates how federal agencies seek policy advice from outside groups Its primary goal is to promote equitable citizen involvement in federal decision-making and prevent undue influence from any individual or group When a federal agency plans to establish, manage, or control a group that includes at least one non-governmental member—be it from federal, tribal, state, or local entities—FACA mandates strict compliance Ensuring adherence to FACA requires agencies to establish transparent processes for forming and overseeing advisory groups to uphold accountability and integrity in advisory activities.
The Federal Advisory Committee Act (FACA) was enacted to address concerns about certain interests gaining unchecked and potentially illicit access to federal executive decision-makers According to Steven P Croley and William F Funk in their 1997 article in the Yale Journal on Regulation, FACA was designed to promote good government by increasing transparency and accountability in advisory committees that influence federal policies This legislation aims to prevent undue influence and ensure that interactions with federal officials are conducted in a manner consistent with public interest and good governance principles.
237 U.S Forest Serv., Key Principles and Practical Advice for
Complying with the Federal Advisory Committee Act, (Nov 2, 2011), Fs.usda.gov, https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5203270.pdf
238 U.S BLM, Bureau of Land Management National Policy for the
The Federal Advisory Committee Act (FACA) provides essential guidelines for BLM staff when working with ADR-based collaborative community groups, emphasizing transparency, balanced representation, and public accountability Understanding FACA ensures effective management of advisory committees involved in decision-making processes, fostering stakeholder engagement and trust BLM employees must adhere to FACA requirements to facilitate unbiased participation and promote collaborative solutions that align with public interests This guide highlights best practices for working with community-based advisory groups, ensuring compliance and enhancing collaborative efforts across land management initiatives.
A federal advisory committee (FAC) is defined as any committee, board, commission, council, panel, task force, or similar group, including its subcommittees or subgroups, involved in providing expert advice to federal agencies The process of establishing and operating a FAC can be lengthy and time-consuming, reflecting the importance of thorough review and public input Understanding the criteria and procedures outlined in the Federal Advisory Committee Act (FACA) ensures transparency, accountability, and efficient functioning of these advisory bodies.
(A) established by statute or reorganization plan, or
The article describes the establishment or utilization of specific processes or resources by the President or federal agencies to obtain advice or recommendations These measures are implemented to support decision-making, ensuring that both the President and federal officers receive expert guidance Such procedures facilitate effective communication and informed choices within the federal government.
There are three apparent components to an advisory committee:
FACA (Federal Advisory Committee Act) applies exclusively to groups, not individuals To be subject to the Act, such groups must be either established by statute or utilized by the President or a federal agency Additionally, these established groups must be used for specific purposes aligned with government functions.
239 Melinda Harm Benson, Integrating Adaptive Management and Oil and Gas Development: Existing Obstacles and Opportunities for Reform, 36 E NVT L.
The approval of the federal advisory committee for the Pinedale Anticline Working Group took two years, during which the group lost its momentum and struggled to keep pace with ongoing oil and gas development This delay hindered their ability to effectively monitor operations and provide timely adaptive management recommendations, impacting the overall effectiveness of their oversight efforts.
Executive Order 12,838 mandates that federal agencies reduce their reliance on advisory committees by up to one-third and only establish new committees when "compelling considerations" justify their creation This order builds upon the requirements outlined in the Federal Advisory Committee Act (FACA), aiming to enhance efficiency and accountability in federal advisory processes Additionally, the implementing directive, Office of Management and Budget Circular A-135, further emphasizes the importance of limiting the formation and duration of federal advisory committees to prevent unnecessary administrative overhead.
The "Management of Federal Advisory Committees" directive mandates that federal agencies limit the number of advisory committees they can maintain, fostering efficiency and oversight According to U.S O.M.B Circular No A-135, issued on October 5, 1994, agencies are guided on managing these committees effectively Specifically, the Bureau of Land Management (BLM) has established regulations to govern the formation and operation of Federal Advisory Committees (FACs), ensuring compliance with federal standards and promoting transparent advisory processes.
43 C.F.R §§ 1784.0-1 to 1784.6-2 of providing “advice or recommendations” to the President or an agency Once established, FACA requires that FACs: 241
● establish a written charter that explains the mission of the committee; 242
● give timely notice of the committee meeting in the Federal Register; 243
● have fair and balanced membership on the committee; 244
● open committee meetings to the public, whenever possible; 245
● have the sponsoring agency prepare minutes of the committee meetings; 246
● provide public access to the information used by the committee; 247
● grant the federal government the authority to convene and adjourn the meetings; 248 and
● terminate within two years unless the committee is renewed or otherwise provided for by statute 249
In their article “Chilling Collaboration: the Federal Advisory Committee Act and Stakeholder Involvement in Environmental
241 This list is reproduced from one contained in the following: Thomas C Beierle & Rebecca J Long, Chilling Collaboration: The Federal Advisory
Committee Act and Stakeholder Involvement in Environmental Decisionmaking, 29
The 242 U.S General Services Administration (GSA) oversees federal advisory committees by requiring each committee to prepare and file a formal charter before conducting meetings or taking any action These official charters ensure transparency and accountability in advisory committee operations and are accessible at https://www.facadatabase.gov For detailed guidance, refer to GSA's 2017 policy on Federal Advisory Committee Charters, available at https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/advice-and-guidance/federal-advisory-committee-charters.
Thomas C Beierle and Rebecca J Long highlight that despite FACA’s seemingly neutral requirements, they often serve as significant barriers to collaborative decision-making, discouraging stakeholder engagement They identify three key "chilling effects": procedural barriers that deter public groups from forming FACA-chartered committees, administrative burdens that dissuade agencies from setting up such committees, and legal ambiguities that create fear among agencies regarding collaborations outside of FACA As a result, both agencies and the public are discouraged from establishing advisory committees, and agencies become reluctant to meet with stakeholders unless under formal FACA chartering Beierle and Long argue that this "FACA-phobia" is partly driven by legal fears but also by a behavioral tendency within agencies to avoid risk, despite the fact that penalties for FACA violations are generally minimal They suggest that if agencies embrace the spirit of FACA by conducting transparent and fair processes, they are unlikely to face legal challenges and may even receive more favorable court rulings, fostering more open and effective stakeholder collaboration.
250 Beierle & Long, supra note 241, at 10,403
256 Id referencing Steven P Croley, Practical Guidance on the Applicability of the Federal Advisory Committee Act, 10 A DMIN L R EV A M U., 111,