Informed consent: Getting from NIMBY to yes

By Dawn Stover | July 25, 2012

“Not in my backyard.” I don’t know whether anyone has actually uttered those words at a hearing or town-hall meeting, but I’ve heard plenty of energy developers and permit processors speak dismissively of local opponents as NIMBYs. Somehow the pejorative sticks: If you’re concerned about noise, stink, ugliness, dirty air and water, diminished property values, endangered wildlife, climate change, or threats to public health and safety, you’re a self-interested elitist and you ought to be ashamed of yourself. If you’re a corporation keen on making a profit, you’re just looking out for the public good. Go figure.

And yet we all use energy. We all consume food and water. We all generate waste. Providing for those needs in your own backyard is virtually impossible. Manny Howard turned his tiny Brooklyn yard into a farm and survived on his own food for a few weeks, but he lost 29 pounds (and nearly his marriage), and it wasn’t even winter. An Oregon couple reduced their garbage output to only three pounds in one year, but they didn’t count offsite waste generated in the production of the energy, food, and products they used at home. Even with extreme efforts like these, the engines and byproducts of modern living unavoidably end up in someone else’s backyard. But whose?

Poor, rural areas are typically where you’ll find energy plantations sprouting derricks or drilling rigs or wind turbines or solar panels, pumping the nation’s lifeblood into underground arteries and overhead umbilicals that follow clear-cut highways across the landscape. Although these sacrifice zones are ostensibly chosen for their natural resources, it’s no coincidence that the residents have little economic or political clout. That’s true not just for the tar sands of Alberta or the mountaintop removals of West Virginia, but also for the Columbia River Gorge “wind ghetto” where I live.

Power to the people. For a while there, it looked like Yucca Mountain was going to be our nation’s nuclear waste ghetto. Is it any wonder that the residents of Nevada preferred not to have an underground repository filled with highly radioactive waste in their state? Or that their elected representatives tried to prevent that from happening, even if it took decades for them to turn the political tide? Nevertheless, at least one US community did agree to host a nuclear waste facility: the Waste Isolation Pilot Plant near Carlsbad, New Mexico. And more than a few landowners all over the United States have gladly agreed to lease their property to energy developers without serious backlash from their neighbors. Why? Chalk it up to two factors: consent and compensation.

In its final report to the Energy Department, the Blue Ribbon Commission on America’s Nuclear Future identified eight key elements of a new strategy to manage the back end of the nuclear fuel cycle. At the top of the list was a consent-based approach to siting future facilities. The commission studied the experience of the United States and other nations and concluded that “any attempt to force a topdown, federally mandated solution over the objections of a state or community — far from being more efficient — will take longer, cost more, and have lower odds of ultimate success.” Instead, the commission recommended that communities be encouraged to volunteer as hosts for a nuclear waste management facility and be offered substantial incentives for doing so.

Recent experience in Finland, France, Spain, and Sweden suggests that such an approach can work. But the challenges of siting are far from unique to the nuclear waste issue, as the commission noted. If a consent-based approach is good enough for nuclear waste, why shouldn’t the same strategy apply to other types of energy facilities? Why, for example, does the federal government fixate on top-down approaches to licensing nuclear power plants, designating energy corridors, and approving projects such as the Keystone XL Pipeline? Shouldn’t these decisions also require consent from affected tribes, states, and local communities? Easier said than done, but ultimately: yes.

The fracking fracas. In Pennsylvania, seven municipalities have filed a lawsuit challenging the constitutionality of Act 13, a new state law that preempts local zoning ordinances and allows companies to drill for natural gas using the controversial process known as hydraulic fracturing, or fracking.* More recently, without any public hearings or much debate, state legislators passed a moratorium on gas drilling in two of the state’s counties. Communities shouldn’t have to sue the state or federal government in order to make their voices heard; and officials should not let fear of what those voices might say drive legislation.

In New York, on the other hand, Governor Andrew Cuomo has expressed support for “home rule” — granting local governments the power to pass ordinances governing gas drilling in the Marcellus Shale. Fracking would be allowed in communities that support it and banned in those that oppose it. Unfortunately, that’s not a panacea, either.

“Home rule would be a disaster,” according to Gasland filmmaker Josh Fox, in an online exchange with The New York Times‘ DotEarth blogger Andrew Revkin. “Drawing out this battle into hundreds of skirmishes across the state, driving people into costly legal battles against an industry that can outspend them.” Fox pointed out that the first wells are not headed for the New York City watershed, but rather for communities that don’t have much power or money. “These cruel political calculations are not based on science or fact or truth, but on cash and influence,” Fox wrote.

If home rule simply enables energy developers to target the weakest communities, then it’s not a better solution than forcing a federal or state mandate down the throats of these same communities. The Blue Ribbon Commission’s strategy nobly calls for all of the affected players to reach some sort of consensus. That’s a tall order, and, to work effectively without creating chaos, home rule will require negotiation, compensation, and real efforts at education. The commission’s consent-based approach needs to be matched by a national dialogue — and not just for nuclear waste, but for energy policy in general.

Consenting adults. This was the strategy touted in a recent Bulletin op-ed by Thomas Webler, Seth P. Tuler, and Eugene A. Rosa, who argued for taking the Blue Ribbon Commission approach a step further, observing that the countries with the most success in addressing high-level nuclear waste have all started with a national dialogue to establish consensus on the gravity of the problem and the basic processes for solving it. The siting details were then worked out later at the community level. But skipping a conversation about the gravity of the problem — whether it’s about nuclear waste storage or long-term energy needs — and moving straight to siting disputes isn’t helpful.

As it is, in the absence of a national dialogue, Americans are appallingly uninformed about how much energy they use and where it comes from. According to a 2009 report from Public Agenda, nearly four in 10 Americans cannot even name a fossil fuel, and more than half cannot correctly identify a renewable energy source. Without a basic working knowledge of energy supply and demand, it’s difficult to see how local residents can ever make informed decisions about gas wells, nuclear waste dumps, or any other energy facilities that have potentially serious impacts. Consent is meaningless unless it’s informed consent — based upon a clear understanding of the facts, implications, and consequences of a decision.

Besides, a consent-based approach doesn’t eliminate the need to scientifically evaluate sites for safety and suitability. The Blue Ribbon Commission made it clear that consent is more than just a willingness to enter into a legally binding agreement with a facility operator; it also requires that such an agreement enables a host state, tribe, or community to protect the interests of its citizens. Tom Wilber, author of Under the Surface, a new book on gas drilling in Pennsylvania and New York, recently put it this way: “Policy is where politics meets science. You can’t take science out of sound decision-making. Nor can you eliminate politics. It is, after all, how we govern ourselves.”

As it says in the Declaration of Independence, governments derive their just powers from “the consent of the governed.” It’s too bad that it took a presidential commission to point out a truth that we have held to be self-evident since 1776.

*Editor’s note: After this column was published, the Pennsylvania appellate court ruled against Act 13, citing it violated the state’s Constitution.

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