Managing Environmental, Health, and Safety Risks: A Comparative Assessment of the Minerals Management Service and Other Agencies

This study compares and contrasts regulatory and related practices—in particular, regulatory decisionmaking, risk assessment and planning processes, inspection and compliance, and organization structure, budgets, and training—of the Minerals Management Service (MMS, now the Bureau of Ocean Energy Management, Regulation, and Enforcement, or BOEMRE) with those of the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). Comparing MMS practices with those of other federal agencies that also manage low-probability but high-consequence environmental risks provides a basis for identifying opportunities for enhancing regulatory capacity and safety performance in managing deepwater energy exploration and production. Our research finds important differences in processes for setting standards; peer review contribution to the rulemaking process; establishment of tolerable risk thresholds; and training of key staff. The paper concludes with several recommendations for how various EPA and FAA practices might be modified and used at BOEMRE to strengthen its regulatory and risk management processes.Minerals Management Service, Federal Aviation Administration, Environmental Protection Agency, risk management

Examination of Federal Data Management Plan Guidelines

Data management plans as expectations of the grant proposal process are still fairly novel, and the expected format and content of these plans is still evolving. The objective of this research is to gain a greater understanding of the expected content for data management plans submitted as part of grant proposals to federal funding agencies. This paper examines federal funding agencies’ data management plan guidelines in relation to the broad elements of data management identified by the Interagency Working Group on Digital Data: Description, Impact, Content & Format, Protection, Preservation, Access, and Transfer of Responsibility. Specifically, statements in agencies’ guidelines were categorized into the most applicable category (or categories). The representation of each category within each agency’s guidelines was addressed, and the statements falling in each category were analyzed. Some categories, including Access and Preservation, were represented in all or nearly all of the guidelines examined. Other categories — Impact and Transfer of Responsibility — were rarely addressed. The expectations for data management plans are evolving and will likely continue to evolve as more agencies require them

Occupational Health and Safety Management Systems Assessment Training

An occupational health and safety management system (OHSMS) is required for all Federal agencies by Executive Order 12196 – Occupational safety and health programs for Federal employees. Development of the Occupational Health and Safety Management Systems Assessment Training Manual was supported jointly by the U.S. Veterans Health Administration (VHA) and the Occupational Safety and Health Administration (OSHA). The manual was designed to be used in the training of government personnel on how to assess the OHSMS of Federal establishments and agencies. The manual is organized sequentially through each step in the process of conducting an OHSMS assessment. Trainees start by learning about how to prepare for an assessment and the training concludes with a discussion on how to incorporate multiple establishments’ OHSMS assessment scores into an agency-wide assessment. Each module includes exercises designed to aid Federal personnel in learning the skills necessary to complete an OHSMS assessment

Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Land

The past decade has seen the D-4 Caterpillar bulldozer become a significant tool for those seeking to challenge federal land management agencies\u27 authority to protect resources federal lands by reducing access. The power of the bulldozer is both symbolic and pragmatic. It cuts an iconographic image of local officials standing up against federal control over vast areas of land in the rural west. But it also, in many cases, provokes litigation, allowing claims to property rights to receive judicial attention that might otherwise evade them. Underlying each of these protagonist\u27s legal positions, if not their motivations, is a right-of-way grant enacted as part of the Mining Act of 1866: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” For 110 years, from its enactment in 1866 until its repeal in 1976, this obscure statute known as R.S. 2477 granted the right-of-way across unreserved federal public lands for the construction of highways. For most of its lifetime, the terse and obscure grant caused little stir, except for the occasional claim that now private lands are subject to R.S. 2477 rights-of-way established during earlier public ownership. Since its repeal, however, R.S. 2477 has become a flashpoint in the ongoing battle for control over western public lands and the resources they harbor. Throughout the west, states, counties, and even individuals and groups pushing for unrestricted motorized access to remote public lands are using R.S. 2477 to try to frustrate environmentally protective measures imposed by federal land managers. Some of these groups are seeking to establish R.S. 2477 highway claims in order to preclude the potential future designation of public lands for protection under the Wilderness Act of 1964. An overlooked aspect of the R.S. 2477 controversy has been the allocation of responsibility among federal courts and federal land managers--specifically, the Department of the Interior (“DOI”)--for resolving disputed R.S. 2477 claims. Whether courts or federal land managers have primary authority to interpret and apply R.S. 2477 is more than a question of mere procedure or choice of forum. It is central to the ability of federal land management agencies to administer the obsolete land grant in a way that harmonizes the intent of the Congress that created it and the intent of Congresses that have since repealed the grant and mandated the management of public lands for various uses, including protecting their primitive condition. This Article argues that federal land management agencies should replace the courts as the institution with primary responsibility for resolving issues that arise from R.S. 2477 claims. In this view, DOI should be accorded the opportunity to interpret R.S. 2477 and to make an initial determination of the validity and scope of claimed R.S. 2477 rights-of-way. The judicial role, though still substantial, would be limited to that customary in administrative law cases, namely, the review of agency action for abuse of discretion and impermissible resolution of statutory ambiguities. Agency primacy would ensure the consistency and uniformity of R.S. 2477 decisions and, if the process is properly structured, ensure that the unique problems presented by this antiquated grant are, at long last, finally settled in a manner that both permits public participation and interpretation of R.S. 2477 in the proper context of the modern public land management regime

The National Security Process and a Lawyer’s Duty: Remarks to the Senior Judge Advocate Symposium

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And both of these occurrences have emphasized the importance of viewing terrorism and cyber security as problems requiring effective vertical and not just horizontal process. Where most national security problems require coordination amongst federal agencies, homeland security is equally about coordination between federal, state, and local actors down to the level of first responder and the technician who spots the first medical anomaly. This vertical process will test the manner in which information is shared, resources allocated, and perhaps the level at which decisions of life and death, heretofore made by the President, are taken. Constitutional democracy also means that all decisions are made according to law. And that means that sound Executive process must incorporate timely and competent legal advice. In some cases, legal review is dictated by statute, as in the case of the Foreign Intelligence Surveillance Act (FISA), which requires the attorney general, or his designee, to approve requests for electronic surveillance or physical search before they are submitted to the FISA court. In other cases, the President has directed a specific process to ensure legal review in areas historically prone to peril, including certain intelligence activities. However, the majority of legal advice within the national security process is not directed, but is the product of practice, custom, and personal interchange between lawyer and client. That means that good process requires personal persuasion, presence, and value added, or the lawyer will find he or she is only contributing to decisions where legal review is mandated and then only as the last stop on the bus route. Constitutional democracy does not rest on such process

Fish and Wildlife Management on Federal Lands: Debunking State Supremacy

This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It first describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the United States Constitution and federal land laws, regulations, and polices. Wildlife-specific provisions applicable within the National Park System, National Wildlife Refuge System, National Forest System, Bureau of Land Management, the special case of Alaska, and the National Wilderness Preservation System are covered, as is the Endangered Species Act. We reviewed an extensive collection of cases of conflict between federal and state agencies in wildlife management on federal land These cases show how federal land laws, regulations, and polices are frequently appeared by federal agencies in an inconsistent and sometimes even unlawful fashion. They also demonstrate how commonalities found in state wildlife governance, such as sources of funding and adherence to the North American Model of Wildlife Conservation, often exacerbate conflict over wildlife management on federal lands. Federal land management agencies have an obligation, and not just the discretion, to manage and conserve fish and wildlife on federal lands. We debunk the myth that the states manage wildlife and federal land agencies only manage wildlife habitat The myth is not only wrong from a legal standpoint, but it leads to fragmented approaches to wildlife conservation, unproductive battles over agency turf and an abdication of federal responsibility over wildlife. Another problem exposed is how the states assert wildlife ownership to challenge the constitutional powers, federal and laws, and supremacy of the United States. While the states do have a responsibility to manage wildlife as a sovereign trust for the benefit of their citizens, most states have not addressed the conservation obligations inherent in trust management; rather, states wish to use the notion of sovereign ownership as a one way ratchet-a source of unilateral power but not of public responsibility. Furthermore, the states\u27 trust responsibilities or wildlife are subordinate to the federal government\u27s statutory and trust obligations over federal lands and their integral resources The Article finishes by reviewing the ample opportunities that already exist in federal land laws for constructive intergovernmental cooperation in wildlife management. Unfortunately, many of these processes are not used to their full potential, and states sometimes use them solely as a means of challenging federal authority rather than a means of solving common problems. Intergovernmental cooperation must be a mutual and reciprocal process, meaning that state agencies need to constructively participate in existing federal processes, and federal agencies should be provided meaningful opportunities to participate in, and influence, state decision making affecting federal lands and wildlife

Managing the Regulatory State: The Experience of the Bush Administration

This Article traces the history of Presidential management of the regulatory state up to the administration of President George W. Bush. It focuses on the latter\u27s implementation of smarter regulation, an approach to regulation based on unfunded mandates on the private sector implemented through the Office of Management and Budget, an organization within the Executive Office of the President. It finds cost-benefit analysis an essential, yet often neglected, tool for implementing efficient and effective regulations. It concludes the policies promoted under President Bush\u27s OMB have effectively cut costs by streamlining the rule-making process and discouraging adopting new federal rules, but cautions there is still a sea of overlapping regulations and conflict over turf among agencies causing the administrative state to steadily rise in cost

Ecosystem Services and Federal Public Lands: A Quiet Revolution in Natural Resources Management

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twenty- five years ago-the language of ecosystem services. Ecosystem services are the range of benefits that ecological re- sources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services frame- work arose in the mid-1990s and quickly became a central strategy for fusing ecology and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem services in law and policy has been a more gradual, incremental process. While largely unrecognized, the federal public land management agencies have been embedding consideration of ecosystem services in their policy decision making. Looking back, it is remarkable how far this quiet revolution has come. This Article traces that policy evolution and assesses why it happened, how it happened, and what it means for the future of public land management. The Article concludes by arguing that federal land management agencies\u27 emphasis on the flow of ecosystem services from public lands to off-site human communities rebuts arguments that public lands would be better managed by privatization or by increased resource extraction

Adaptive Management and NEPA: How to Reconcile Predictive Assessment in the Face of Uncertainty with Natural Resource Management Flexibility and Success

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, acting on the basis of one-time predictive judgments is a prescription for failure. Instead, resource managers need to continuously track the consequences of their decisions, reevaluate their management approaches based on evolving evidence, and make appropriate adjustments before starting this iterative process anew.Notwithstanding the tension between the decisionmaking approaches reflected in NEPA and adaptive management, the federal land management agencies have had to figure out how to implement their NEPA responsibilities as they have increasingly resorted to adaptive management strategies. This Article analyzes the inevitable litigation that these efforts have spurred, identifying how courts have applied various aspects of NEPA’s mandates to agency resort to adaptive management. This analysis reveals that careful attention to NEPA’s requirements makes reconciliation of the tension between NEPA and adaptive management possible. The Article gleans a series of best practices that should allow agencies to benefit from the flexibility that adaptive management affords its practitioners while satisfying NEPA’s “stop and think”mandates

Think-tanking the challences in three regions: the Great Basin

The most unique characteristics of the Great Basin are the ecological fragility of the resources, scarcity of water, predominance of federal land, high degree of urbanization, independence of rural people. Factors most likely to impede EM are conflicting goals and missions of agencies, conflicting social values among stakeholders, slow recovery rates of biophysical systems, and difficulty of predicting responses to natural disturbances and management actions. Characteristics most likely to facilitate EM are new political climates promoting consensus, extensive federal lands, social diversity, and improving management technology. A critical need for successful EM is communication and promoting public understanding of the process