Chilling Collaboration: The Federal Advisory Committee Act and Stakeholder Involvement in Environmental Decisionmaking

Thomas C. Beierle and Rebecca J. Long

Editors' Summary: The Federal Advisory Committee Act (FACA) was designed to control the undue influence of special interests on advisory committees by balancing committee membership, opening committee meetings and minutes to the public, and controlling the number of committees formed. In this Dialogue, the authors evaluate whether FACA has achieved its objective. They begin with a description of advisory committees and the applicability of FACA. Next, they discuss three chilling effects that FACA has had on stakeholder involvement, including procedural barriers, administrative barriers, and "FACA-phobia." The authors then examine FACA's effects on site-specific advisory committees at DOE, the DOD, EPA, and the U.S. Forest Service. Ultimately, the authors conclude that FACA has been successful in doing what it set out to do, but it has failed to change with an evolving environmental regulatory system that includes a greater role for stakeholder collaboration. At the end of the Dialogue, the authors recommend three ways to improve FACA by expanding opportunities for stakeholder involvement: lift the administrative ceiling on advisory committees, clarify applicable regulations and possibly the Act itself, and streamline procedural requirements for forming and operating an advisory committee.

Thomas C. Beierle is a Research Associate in the Center for Risk Management. Resources for the Future. Rebecca Jane Long is a Fiscal and Policy Analyst at the state of California Legislative Analyst's Office and a former intern at Resources for the Future.

[29 ELR 10399]

In a recent article in the Environmental Forum, J. Charles Fox, the U.S. Environmental Protection Agency's (EPA's) Assistant Administrator for Water and formerly the head of the Agency's reinvention efforts, summed up EPA's commitment to stakeholder involvement:

Involving citizens—and doing so starting in the early stages, when their suggestions can substantially influence how decisions take shape—is the way we believe environmental decisionmaking works best …. Collaborative processes offer significant and far reaching benefits. Shared decisionmaking enables people to bridge their differences, find common ground, and identify creative new solutions. Moreover, involving citizens enhances democratic decisionmaking by keeping public values at the forefront.¹

EPA's reinvention programs, such as the Common Sense Initiative and Project XL, have brought together stakeholders to seek consensus on difficult regulatory issues and have helped chart the course for collaborative decisionmaking at EPA. EPA is not alone in such stakeholder efforts. Other federal agencies with environmental responsibilities—such as the Departments of Energy (DOE) and Defense (DOD), the Bureau of Land Management, and the Forest Service—have expanded opportunities for stakeholder involvement in environmental decisionmaking in recent years. The trend toward more open decisionmaking has been supported by the National Research Council, the Presidential/Congressional Commission on Risk Assessment and Risk Management, and former EPA Administrator William Ruckelshaus, to name just a few.²

If this expansion in stakeholder decisionmaking signals a real shift in how federal agencies go about the business of making and implementing environmental policy it will require significant changes to the organizational culture of federal agencies. It will also create new tensions between agencies and laws that govern how the federal bureaucracy functions. This Dialogue focuses on one such law—the Federal Advisory Committee Act (FACA)³—and the barriers it [29 ELR 10400] creates for collaborative decisionmaking on environmental issues at the federal level.

Congress passed FACA in 1972 as one of the "openness in government" laws (along with the Government in the Sunshine Act, the Freedom of Information Act, and the Administrative Procedure Act). It was designed to help control the undue influence of special interests on advisory committees by balancing committee membership, opening committee meetings and minutes to the public, and controlling the number of committees formed. At the time of FACA's passage, Congress believed that there were too many "inactive, meaningless, obsolete and redundant committees" but that many were "so powerful that they, in effect, constituted a 'fifth arm of the government' on top of the legislative, executive, judicial and regulatory or administrative branches."⁴ Since 1977, FACA has been administered by the General Services Administration (GSA), which first promulgated implementing regulations in 1987.⁵ GSA regulations, as interpreted by judicial review and individual agency regulations and guidance, have guided how the Executive Branch uses advisory committees. FACA and its regulations have had a profound impact on who participates in government decisions, when they participate, how they participate, and what influence participation has on decisionmaking.

The Dialogue begins with a general background on advisory committees and describes the applicability of FACA. It goes on to examine how FACA has directly and indirectly created barriers to involving the public in collaborative decisionmaking on environmental issues, highlighting three types of chilling effects that FACA has had on stakeholder involvement: (1) procedural requirements that prevent outside groups from forming advisory committees, (2) administrative limits on advisory committee formation, and (3) a fear of litigation that can prevent agency personnel from constructively engaging the public outside of FACA. With this foundation established, the Dialogue then describes how these barriers have affected site- and region-specific committees at four agencies with environmental responsibilities—DOE, the DOD, EPA, and the Forest Service. It concludes that FACA, and the advisory committee system it governs, has achieved what the Act's authors set out to do—provide government with relatively cheap and broadbased outside advice bolstered by public accountability. It also concludes, however, that FACA has hindered collaborative forms of stakeholder involvement in a number of ways and that it will become an increasing hindrance as agencies strive to expand opportunities for stakeholder collaboration.⁶ In short, FACA has failed to change in step with evolving notions of how to combine democratic values and environmental decisionmaking. Finally, the Dialogue ends with three recommendations for improving FACA.

Advisory Committees and the Federal Advisory Committee Act

Advisory committees play a number of important roles in federal environmental policymaking. In general, there are three types of committees: expert, policy-level, and site- or region-specific. Expert committees provide outside technical advice and peer review on issues relevant to the function of agencies. At EPA, for example, the primary expert committee is the 20-year-old Science Advisory Board, which "provides such scientific advice as may be requested by the [EPA] Administrator" or relevant congressional committees.⁷ While there are a number of interesting questions about what type of access the public should have to expert committees, these committees are not generally the fora for the kind of collaborative decisionmaking discussed in this Dialogue and are not considered further here.⁸

Policy-level committees advise on the more value-laden, social dimensions of policy, typically on topics of national concern. In general, they provide substantive input from the point of view of a variety of stakeholders, act as a sounding board for the acceptability of policies, and provide some amount of democratic legitimacy to decisions. Policy-level committees come in a number of varieties. In regulatory negotiations, stakeholders negotiate the actual content of regulations. EPA, for example, has used regulatory negotiations to complete 20 rules over the lifetime of the Agency.⁹ More common recently are policy dialogues, which bring stakeholders together to seek consensus on policy issues. The various subcommittees of EPA's Common Sense Initiative Council, which have sought new ways to improve environmental performance and regulation in a number of industrial sectors, are examples. While regulatory negotiations and policy dialogues are called together for discrete periods of time, standing advisory committees, which are often written into legislation by Congress, can be called on for policy advice over an indefinite period of time. The Clean Air Act Advisory Committee, for example, advises EPA on the "potential health, environmental, and economic effects of programs" and their "potential impacts on the public, state and local governments, and the regulated community" from the point of view of a variety of stakeholders.¹⁰

While expert and policy-level advisory committees typically deal with national issues, site- or region-specific advisory committees (referred to throughout the rest of the Dialogue as "site-specific" committees) deal with a defined geographic area and set of stakeholders. Many agencies with environmental responsibilities have moved toward these more locally based advisory committees in recent years. DOE has established 12 site-specific advisory boards (SSABs) at its major cleanup sites. The DOD has established [29 ELR 10401] over 200 restoration advisory boards at its bases around the country. EPA has encouraged the formation of community advisory groups (CAGs) at Superfund sites with environmental justice concerns.¹¹ The Forest Service also utilizes a number of locally based committees, to help implement, among other things, its Northwest Forest Management Plan. These committees are part of a larger trend toward collaborative, locally based decisionmaking that has spawned what some have estimated to be over 200 grassroots (i.e., nongovernmental) community-based efforts to solve local environmental problems across the country.¹²

Policy-level and site-specific committees share the common trait of bringing together stakeholders to help determine policy outcomes. They reflect, however, quite different models of democratic environmental decisionmaking. Policy-level committees typically (although not always) are composed of professional representatives of environmental, public interest, and industry groups—what one analyst has called "the usual suspects"—acting as proxies for the general public.¹³ In many ways, these committees reflect a new approach (in their incarnations as policy dialogues and regulatory negotiations, at least) to a long-standing tradition of interest group pluralism in national policymaking, where interest groups vie for position and influence. Site-specific committees on the other hand, are composed mainly of members of local communities, and some committees specifically discourage the membership of non-local members of national groups, such as environmental advocacy nongovernmental organizations (NGOs).¹⁴ Their sitespecificity is not an accident—rather, the connection to a particular geographic place is a key element tying together community concern and interest in problem solving. More so than policy-level committees, these site-specific committees reflect an innovation in environmental management—going under the various names of community-based environmental protection, grass-roots ecosystem management, or civic environmentalism—which we refer to here as "place-based" decisionmaking.¹⁵ A place-based approach emphasizes a bottom-up, collaborative approach to solving a particular location's environmental problems that have defied resolution through a more traditional centralized, top-down, command-and-control approach.

Not all policy-level or site-specific committees are regulated under FACA. Indeed, whether the law is operative or not depends on what kind of public involvement will be undertaken. Recent guidance from EPA defines three categories of public involvement for which an advisory committee might be appropriate (see Figure 1).¹⁶ These range from a "consultative" process of exchanging information (e.g., a roundtable discussion) to the more involved "collaborative" processes of providing recommendations (e.g., a policy dialogue) and establishing agreements (e.g., a regulatory negotiation). In general terms, FACA would not apply to the consultative processes, but would apply to the collaborative processes. (The specifics of what distinguishes a FACA committee from a non-FACA committee are rather more complicated than this simple dichotomy, an issue addressed in the following section.)

Figure 1: Categories of Public Involvement for Which Advisory Committees Are Appropriate

Consultative Processes *2*Collaborative Processes

FACA does not apply *2*FACA does apply

Information Exchange Recommendations Agreements

(e.g., roundtable) (e.g., pollcy dialogue) (e.g., regulatory

negotiation)

—> —> —> Increasing effort, intensity and stakeholder influence —> —> —>

In a consultative process, where FACA is generally not operable, the government exchanges ideas and information with a group of nongovernmental stakeholders. Consultative processes are designed to increase both government and public understanding of particular issues and feed into the underlying knowledge base for agency decisionmaking. [29 ELR 10402] While they are an ingredient to informed decisionmaking, they do not involve the solicitation of group recommendations or any effort to seek group agreement on policy. EPA includes, under the category of consultative processes, workshops, roundtables, public hearings, and public meetings, as well as ad hoc meetings with nongovernmental groups or forums.¹⁷

In contrast to consultative processes, collaborative processes involve active deliberation and an emphasis on consensus among members. The intended outcomes are formal recommendations or agreements on which agencies expect to (or are expected to) act. Through ongoing dialogue, often over a period of years, collaborative processes focus on finding areas of common ground and shared understanding among stakeholders that form the foundation of outcomes to which all stakeholders can agree.

While both consultative and collaborative processes can be effective ways to educate participants, bring social values into decisionmaking, and increase the knowledge base from which to make quality decisions, the deliberative format of collaborative processes are more likely to generate a deeper and shared understanding of problems and how they should be resolved. Because collaborative processes offer more opportunities for creating cooperative working relationships, they are more likely than consultative processes to resolve conflict among stakeholders. Because they explicitly allow government to act on agreements or recommendations, they also stand more of a chance of improving trust and confidence in agency decisionmaking.¹⁸ Much of the recent literature extolling the virtues of stakeholder decisionmaking envisions collaborative, rather than consultative, efforts.¹⁹

Collaboration, rather than consultation, is also envisioned as a key element of the "place-based" decisionmaking movement guiding the use of site-specific committees. Indeed, a key element of place-based decisionmaking is some degree of shared authority between all stakeholders—governmental (at all levels) and nongovernmental. In many place-based efforts, the federal government has an important place at the table, not just because it can convene a stakeholder process, but because federal agencies manage public lands, own contaminated federal facilities, and manage federal programs.

In general, collaborative processes in which the federal government is a stakeholder require that committees be chartered under FACA. The Act requires that these committees:

* establish a written charter that explains the mission of the committee;

* give timely notice of committee meetings in the Federal Register;

* have fair and balanced membership on the committee;

* open committee meetings to the public, whenever possible;²⁰

* have the sponsoring agency prepare minutes of committee meetings;

* provide public access to the information used by the committee;

* grant to the federal government the authority to convene and adjourn meetings; and

* terminate within two years unless the committee charter is renewed or otherwise provided for by statute.²¹

FACA's requirements appear rather innocuous. However, the remainder of this Dialogue discusses FACA's role as gatekeeper between consultation and collaboration in federal environmental policymaking. Specifically, it out-lines ways in which the Act directly and indirectly discourages the use of collaborative processes, where they otherwise may be appropriate. In this way, the law that was intended to enhance public involvement in decisionmaking has become a significant barrier to stakeholder efforts.

The FACA Paradox: Chilling Participation

In a 1994 study, 54 natural resource professionals ranked FACA as the greatest legal barrier to ecosystem management, a collaborative and holistic approach to managing complex natural systems.²² How has a law intended to open up government decisionmaking to the public come to hamper such collaborative decisionmaking efforts? This section outlines three "chilling effects" FACA has on collaborative decisionmaking. First are the law's procedural barriers that deter public groups from forming FACA-chartered committees. Second are administrative requirements that discourage agencies from establishing FACA-chartered committees. Third is ambiguity about the law's requirements (and litigation arising from this ambiguity) that creates a fear among agencies of any type of collaboration, or even consultation, with entities not chartered under FACA.

Taken together, these elements mean that, on the one hand, agencies and the public are discouraged from chartering [29 ELR 10403] advisory committees under FACA, while, on the other hand, government personnel are reluctant to collaborate or meet with stakeholders unless they are chartered as a FACA committee. FACA essentially draws a sharp line between FACA "haves" and FACA "have nots"—between collaboration and consultation. While groups that become chartered under the Act enjoy access to government decisionmaking, those that cannot surmount the law's procedural barriers are kept at arm's-length because of agencies' fear of litigation.

Procedural Barriers

The first way FACA introduces a chilling effect on collaboration is by creating procedural hurdles for establishing and operating an advisory committee. These hurdles may be so high that, from the public's viewpoint, overcoming them is simply not worth the effort. As a result, FACA can squelch the kind of grass-roots or bottom-up participatory efforts integral to more responsive government in general and placebased environmental management efforts in particular.

One component of the barrier goes to the very heart of grass-roots participation: the cost of becoming a formal partner in decisionmaking processes is paid by trading in a bottom-up ethos for one which is decidedly top-down. In establishing and running a FACA committee, all roads lead to Washington, D.C. As two analysts of public participation in Forest Service decisionmaking have pointed out:

The fact that decisions concerning advisory committees are made in Washington removes the chartering process from the local and regional levels, where many committees originate and seek to operate. Even requests for chartering that originate at Forest Service districts, must rise within a rigid bureaucratic hierarchy, increasing the delay and the risk of disapproval.²³

Turning over control is not just a psychological barrier—it extends to every aspect of the participatory process. To be chartered under the Act, committees must be established under the authority of federal laws, by an executive agency, or by the President.²⁴ Charters, and often membership, must be approved by agency headquarters. All meetings must take place in the presence of a government official. Procedural requirements—such as publishing meeting notices in the Federal Register, coordinating with an agency on the publication of minutes, and even meeting in government buildings—also ensure a close tie with agencies. The dissolution of committees is also at the agencies' discretion.

The story of the Blue Mountains Natural Resources Institute (BMNRI) Advisory Committee is a telling example of the difficulties of forming a FACA-chartered advisory committee.²⁵ Following legal challenges to President Clinton's Northwest Forest Management Plan on the basis of FACA violations, the Forest Service required that all nongovernmental groups wishing to continue advising on Forest Service policy charter under FACA. The BMNRI chose to do so. The BMNRI Advisory Committee includes representatives of county, state, federal, and tribal governments and nongovernment institutions and interests. Its objective is to advise the Forest Service on resource issues by conducting research, demonstrating technologies, and facilitating cooperation among various interests in the Blue Mountains of Washington and Oregon. The BMNRI Advisory Committee was established under FACA after being written into the Food, Agriculture, Conservation, and Trade Act of 1990 as a result of the sponsorship of Rep. Bob Smith (R-Or.). The legislation was passed in 1990 and the charter approved in 1991 (although the BMNRI apparently did not find out about the approval until 1994). It took until 1995, however, for the Forest Service to approve the BMNRI Advisory Committee's membership, and only then—five years later—could the Committee begin giving formal advice to the Forest Service. Changes of administration, turnover at the Forest Service, and policy changes about what constituted "balance" on committees all contributed to the delays. These issues are typical of federal policymaking, but FACA was the vehicle by which they were translated, in this case, into a five-year hurdle for bottom-up participation.

To our knowledge, there has not been a study of the average amount of time it takes to charter and approve committees. If the BMNRI experience is any indication of the difficulties involved in becoming an advisory committee, it is not surprising that few groups choose to do so. The expended time and effort it takes to incorporate a committee runs the risk of creating unrealistic expectations about the kind of impact an advisory committee can have on decisionmaking. Agencies are often unwilling to, or legally restricted from, meeting these expectations. Where trust in government is already low, as is the case in many environmental contexts, delays, and the ceding of power to government inherent in committee formation may undermine the legitimacy of a federal advisory committee from the start.

Administrative Barriers

The second chilling effect also deals with committee formation. The Clinton Administration's "reinventing government" initiative included strong measures to reduce the use of advisory committees in order to lower related expenses. In particular, Exec. Order No. 12838, signed on February 10, 1993, ordered agencies to reduce the number of discretionary committees (those "authorized" by Congress or established by agencies) by one-third.²⁶ New discretionary committees that exceeded an agency's ceiling, as established by the Executive Order, were subject to review and approval by the Director of the Office of Management and Budget. In order to ensure that agencies reduced the costs, as well as the number of committees, Vice President Gore also issued a memorandum on June 28, 1994, in which he directed agencies to lower their advisory committee expenditures by at least 5 percent.²⁷

[29 ELR 10404]

At the same time that the Clinton Administration has asked agencies to reduce their use of advisory committees, it has advocated that agencies broaden collaborative efforts in regulatory decisionmaking and experiment with consensus-building techniques. Paradoxically, advisory committees are the principal mechanisms by which such collaborative efforts would take place.²⁸ Encouraged to increase collaboration on the one hand, and forced to reduce the number of advisory committees on the other, agencies are caught in a dilemma between opposing policy directives. Often their choice is to either avoid public participation altogether or utilize consultative forms of public involvement which do not trigger FACA.

Aggregate data indicate that administrative efforts to limit advisory committee costs have not had their desired affect. Although the total number of committees has gone down since the 1993 administrative controls, costs have not (see Figure 2). Moreover, the number of advisory committee members and meetings have also continued to rise (see Figure 3). At EPA and DOE, the numbers of committees have actually increased from 1993 to 1997, along with associated rises in costs, members, and meetings.²⁹

Figure 2. Total Federal Advisory Committees and Cost, 1985-1997

[SEE ILLUSTRATION IN ORIGINAL]

Source: General Services Administration, Annual Report of the President on Federal Advisory Committees, FY 1985 -FY 1997

Figure 3. Total Federal Advisory Committee Members and Meetings, 1985-1997

[SEE ILLUSTRATION IN ORIGINAL]

Source: General Services Administration, Annual Report of the President on Federal Advisory Committees, FY 1985 - FY 1997

[29 ELR 10405]

The increase in the number of committee members (even as the total number of committees has shrunk) is partly due to a proliferation of subcommittees. Rather than creating entirely new committees with their own charters, agencies often seek to avoid administrative hassle by creating subcommittees of existing committees. While the members of subcommittees are included among GSA's record of total members, the subcommittees are not counted as separate committees.

These data suggest that, at least in terms of person-hours spent on committee participation, the administrative efforts to limit the number of advisory committees have not led to much of a reduction in existing levels of participation through advisory committees. While this is good news from the perspective of public involvement, a trend should be noted. Most of the increase in cost and membership—at least at EPA and DOE—are due to major policy initiatives, such as the Common Sense Initiative at EPA and the SSABs at DOE. Both of these policy initiatives were pursued with strong and high-profile headquarters support. It is quite likely that such efforts are crowding out other efforts with less of a profile.

Unfortunately it is difficult to determine what kinds of efforts might be getting crowded out. Have the ceilings placed on advisory committees quashed lower profile participatory efforts before they began? In a recent study by the General Accounting Office (GAO), 7 out of 19 federal agencies reported that the committee ceiling had in fact deterred them from establishing new discretionary committees.³⁰ Two of those seven agencies were EPA and DOE.

"FACA-Phobia"

While procedural requirements and limits on committee formation may chill collaboration by raising barriers to committee creation, FACA's ambiguity gives rise to the third form of chilling effect. Dubbed by one observer as "FACA-phobia," the effect arises when agencies choose not to interact with interest groups in ad hoc meetings out of confusion over what FACA requires and a subsequent fear of being sued for violating the law.³¹ The fear may be well founded. In a number of lawsuits described below, the courts have found agencies in violation of FACA, mainly because they neglected to charter committees that should have been governed by the Act.

The result of FACA-phobia is a wariness, on the part of agencies and their personnel, about engaging the public in any forum not chartered under FACA, even in consultative efforts that would probably not fall under the law. A 1995 report issued by the Interagency Ecosystem Management Task Force, an interagency group of senior level federal agency officials established in 1993, recognized this phenomenon. It stated that "many federal agency personnel believe that FACA restricts virtually all contacts with nonfederal entities, and are fearful that any such contacts will subject them to legal action."³² This fear can cause government agencies to pull out of participatory processes or avoid them in the first place. The former can be particularly damaging when agencies remove themselves from a collaborative effort, disrupting what is already often a fragile process. As the sponsor of one locally based collaborative process on forest issues said, "It's been very difficult not having the representatives who manage 70 percent of our watershed at the table."³³ FACA-phobia may also be a convenient excuse: some environmentalists charge that agencies often refuse to listen or meet with them on the grounds that to do so would be in violation of FACA.

FACA-phobia arises in large part because of ambiguities in the Act that have not been resolved either through GSA's regulations or through judicial interpretation. Agencies and their personnel are left with considerable uncertainty about when to invoke FACA, and if they don't, whether they are violating it. The problem has been catalyzed by a number of lawsuits that allege that agencies have violated the Act. The GAO recently surveyed federal agencies about the extent to which FACA has in fact "chilled" their public participation efforts, and in what ways. Six out of the 19 agencies surveyed, reported that their agency had "decided not to receive or solicit input from public task forces, public working groups, or public forums, or other outside parties … because of the possibility of future litigation over compliance with FACA."³⁴ The GAO study also reported that 8 out of the 19 agencies responded that the possibility of FACA-related litigation "inhibited their getting input from parties outside of FACA to some, a moderate, or a very great extent."³⁵ Six agencies were able to cite specific instances between fiscal years 1995 and 1997 when they decided not to "solicit or receive outside input" because they feared FACA-related litigation.³⁶

The main culprits of FACA-phobia are FACA's scope provisions—those that deal with what type of participation falls under FACA. In fact, of the 13 lawsuits reported in the GAO survey mentioned above, 9 dealt with scope issues. FACA legislative language defines an advisory committee subject to its provisions as follows:

any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee") which is —

(A) established by statute or reorganization plan, or

(B) established or utilized by the President, or

(C) established or utilized by one or more agencies,

in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government ….³⁷

In 1987, the GSA Committee Management Secretariat issued a final rule on federal advisory committee management that sought to clarify the legislative language and provide agencies with guidance regarding what types of activities are subject to the Act.³⁸ Subsequent judicial interpretation [29 ELR 10406] has, in some cases, clarified the type of participatory activities to which FACA applies. However, judicial interpretation has also confused the issue, because courts have generally not deferred to GSA's interpretation of the Act.³⁹ Agencies are left with no clear line between which kinds of participatory efforts are subject to FACA and which are not.

Much of the debate over FACA's scope rests on the interpretation of the words "established" and "utilized" in the legislative language. While a common interpretation of the word utilized might conclude that FACA applies to any group from which the President or a federal agency receives advice concerning a particular policy, the courts have found otherwise. In Public Citizen v. U.S. Department of Justice, a case involving the President's reliance upon the American Bar Association's (ABA) Standing Committee on the Federal Judiciary—and the only U.S. Supreme Court FACA case—the Court stated:

"Utilize" is a woolly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization from which the President or an executive agency seeks advice. We are convinced that Congress did not intend that result. A nodding acquaintance with FACA's purpose … reveals that it cannot have been Congress's intention, for example, to require the filing of a charter, the presence of a controlling federal official, and detailed minutes any time the President seeks the views of the National Association for the Advancement of Colored People (NAACP) before nominating Commissioners to the Equal Employment Opportunity Commission.⁴⁰

In short, any strictly literal interpretation of FACA straightjackets even the most commonplace government dealings. The Court based its argument on the fact that applying FACA to the President's consultation with the ABA would be an infringement of the President's power to nominate federal judges, and thus a violation of the U.S. Constitution's separation of powers doctrine.

Responding to GSA regulations and subsequent court cases, agencies most consistently use four criteria—taken together—to determine whether an outside group might qualify as a FACA committee (i.e., whether they are "established" or "utilized"). These are:

* whether the agency is receiving advice and recommendations from the committee rather than simply exchanging facts and information;

* whether the agency is receiving advice and recommendations from a group (sometimes interpreted as consensus advice) or from a collection of individuals giving independent advice and recommendations;

* whether the agency is exerting strict agency management and control over a group that is giving it advice and recommendations; and

* whether the agency meets with a group repeatedly and regularly rather than occasionally and on an ad hoc basis.⁴¹

While these criteria largely draw the line between what we are calling consultation and collaboration, they still leave substantial room for interpretation. And agencies are continually forced to make these interpretations because many of the desirable features of stakeholder involvement—such as group discussion, consensus, and responsiveness to public recommendations—push agencies up against (or over) the threshold of FACA applicability. Some agency personnel may be guilty of excessive FACA-phobia when avoiding participatory efforts that don't approach this threshold. In these cases, clarity of agency policy is in order. However, in many cases agencies probably are near this threshold, and FACA-phobia is probably an appropriate response. In these cases, the underlying problem goes back to the ambiguity of the GSA regulations and even the law itself in explicitly defining that threshold. In order to avoid both types of FACA-phobia—that which is excessive and that which is warranted—the criteria for determining what types of groups are subject to FACA need to be made more clear. This issue is taken up again in the recommendations discussed in the final section of this Dialogue.

Agencies might take some solace in the fact that FACA does not prescribe remedies for violation of its scope provisions. With only one exception, federal courts have allowed agencies to make use of material developed in violation of this aspect of FACA, arguing that to order agencies to abandon fact-finding reports and/or recommendations that have already been completed would be excessive. For example, in a case in which the California Forestry Association sought to prevent the Forest Service from relying on a report that was produced by the Sierra Nevada Ecosystem Project (SNEP) in violation of FACA, the court reasoned that: "The preparation of the report has already consumed millions of dollars. If the Forest Service needs a scientific evaluation of the Sierra Nevada for its own use, an injunction prohibiting its use of the SNEP study would require it to commission another (presumably duplicative) study of the Sierra Nevada."⁴²

In Alabama-Tombigbee Rivers Coalition v. Department of the Interior, however, the judge did prevent the government from using a report prepared in violation of FACA.⁴³ This one exception provides illuminating insights into the fine line agencies must walk in deciding whether to invoke FACA when soliciting advice. The case concerned a report prepared by a scientific advisory committee that was formed [29 ELR 10407] after the U.S. Fish and Wildlife Service (FWS) published a proposed rule to list the Alabama Sturgeon as an endangered species. The advisory committee, which was charged with assessing the current status of the species, consisted of four nongovernmental scientists appointed by the FWS. Originally, the FWS had intended the scientists to provide individual evaluations and recommendations, thereby exempting the committee from FACA. However, shortly before the committee was convened, the FWS "substantially changed the structure of the 'panel.' The modified structure was for the scientists to meet and compile a single collective report."⁴⁴ A few days before the report's planned release, the Alabama-Tombigbee Rivers Coalition (a group of 34 businesses and organizations operating in Alabama and Mississippi) filed a complaint seeking a temporary restraining order and a permanent injunction against the release, use of, or reliance on the report on the grounds that the FWS had violated FACA's fair balance and openness provisions. The court ruled that the cooperation of the scientists in generating a single report (rather than individual recommendations) pushed the committee over the FACA threshold and ruled that the FWS had in fact violated the Act. Moreover, the court granted the injunction, stating that "to allow the government to use the product of a tainted procedure would circumvent the very policy that serves as the foundation of [FACA]."⁴⁵ Furthermore, it found "injunctive relief as the only vehicle that carries the sufficient remedial effect to ensure future compliance with FACA's clear requirements."⁴⁶

Conclusion

The chilling effects discussed above all revolve around FACA implementation—whether groups choose to pursue a charter, whether agency personnel choose to establish an advisory committee, or whether agency personnel choose to engage the public outside of FACA. The origins of these chilling effects are diverse. FACA's procedural requirements are largely laid out in the original legislation and could only be modified by additional legislation. The administrative requirements are not legislative, and could be overturned with an additional executive order or policy directive. FACA-phobia is perhaps the most difficult malady to diagnose. Its problems arise from the ambiguous legislation itself, from regulations and judicial interpretation that fail to clarify the Act, from interested parties who choose to litigate over FACA, and from agency personnel who fear such litigation. We return to the topic of origins and remedies in the recommendations discussed at the end of the Dialogue. But first, we examine how these various forces have affected public participation in site-specific advisory committees at a number of agencies with environmental responsibilities.

The Effect of FACA on Site-Specific Committees at Four Federal Departments and Agencies

A number of federal departments and agencies with environmental responsibilities have seen recent attention to siteor region-specific advisory committees. As mentioned, EPA, DOE, and the DOD have all instituted site-specific advisory committees at contaminated or potentially contaminated sites under their jurisdictions. The Forest Service (in the U.S. Department of Agriculture) has utilized regional advisory boards to assist in land and forest management decisions. All of these initiatives represent recent and mostly innovative policy approaches.

Yet site- and region-specific committees may also be those most vulnerable to FACA's chilling effects. They are numerous, threatening agencies' ceilings. Issues may not carry enough political clout for agencies to "use up" one of their committee slots or to risk the threat of lawsuits by operating without FACA's sanction. The Act's procedural requirements make it difficult for local groups to get chartered and provide timely advice. These groups may lack the capacity or connections required to get a committee authorized in the first place. Unfortunately, it is also in this arena where avoiding FACA by circumscribing participation may have the most devastating effect on trust and perceptions of agency legitimacy.

How different agencies have dealt with FACA in creating these committees helps reveal the extent to which FACA creates a barrier to participation. It also provides insights about how different agencies feel the forces of committee ceilings and FACA-phobia. FACA committees at DOE, the DOD, EPA, and the Forest Service are discussed in turn.

DOE is perhaps the most uninteresting case of the group with respect to FACA, mainly because its 12 SSABs are FACA-chartered.⁴⁷ Rather than threaten the Administration's ceiling, however, DOE made the decision to charter its SSABs, not as separate advisory committees, but under one charter. In this way, they get 12 committees, but only have to claim 1—the Environmental Management SSAB. Not incidentally, this 1 committee accounted for 95 out of 140 advisory committee meetings at DOE in 1997, and around 47 percent of its total annual advisory committee costs that year.⁴⁸

Like DOE, the DOD has formed approximately 200 Restoration Advisory Boards (RABs) to advise on environmental cleanup issues at its closing and operating bases around the country. Unlike DOE, however, the DOD has not chartered these committees under FACA. Chartering so many RABs under FACA was simply impractical—it would blow through the ceiling on advisory committees and create huge procedural commitments on the part of the DOD. The DOD's resolution has been to avoid chartering under FACA by complying with the "spirit" of the Act—in terms of requirements such as openness and balance.⁴⁹ In order [29 ELR 10408] to avoid triggering FACA, or bringing on litigation charging as much, the DOD pays close attention to the "established" and "utilized" criteria which may trigger FACA.⁵⁰ In particular, as long as the DOD seeks individual rather than consensus advice, the Department feels its actions do not violate FACA. It is a fine line: according to one employee, if everyone on a committee starts to say the same thing, the DOD can listen—the Department just can't make any effort to seek consensus among members.⁵¹

EPA has taken an approach similar to the DOD in complying with the spirit of FACA but deciding not to charter its CAGs under the law. In justifying this decision to the GSA, EPA stated: "We believe community-based groups working together to solve local environmental problems should not be subject to FACA. Requiring such groups to be chartered under FACA or burdened with FACA regulations could be a disincentive to forming such a group."⁵²

EPA avoids triggering FACA by keeping CAG formation and operation at arm's-length. They explicitly do not set up committees, fund them, or run them. Instead, the Agency simply encourages their formation and supports their work. According to EPA guidance, "EPA will not establish or control CAGs; however, the Agency will assist interested communities in CAG activities."⁵³ While less concerned about consensus than the DOD, EPA similarly avoids the kind of interactions which might trigger FACA by stressing that it is seeking "facts and information" rather than "advice and recommendations" and seeking "individual" rather than "group" views:

EPA anticipates that the CAGs will serve primarily as a means to foster interaction among interested members of an affected community, to exchange facts and information, and to express individual views of CAG participants while attempting to provide, if possible, consensus recommendations from the CAG to EPA …. Since the CAG, by definition, is intended to be representative of the affected community, the regulatory agencies will give substantial weight tothe preferences expressed by CAG members.⁵⁴

The incompatibility between "exchanging facts and information" from individuals (rather than a group) on the one hand, and hoping that this will result in consensus on the other, should be obvious. Perhaps this corroborates our sense that, of the four agencies discussed here, EPA appears to be the most comfortable operating outside of FACA (i.e., it is the least subject to FACA-phobia), while not also circumscribing the influence of these committees on decisionmaking. The tension inherent in this approach, however, is summed up by one EPA employee:

It appears that unless an advisory committee is chartered under FACA, members can't provide consensus advice to the agency. This restriction forces us to act out a charade whereby we claim that local committee members are providing "individual advice" instead of reaching consensus despite the fact that the real value of these committees' recommendations is precisely that they do represent a broad based consensus view. Citizens have no patience with this sort of sophism.⁵⁵

It is clear that even at EPA, if efforts to engage local communities are working, it is in spite of FACA, not because of it.

The effects of FACA on place-based collaboration may be most obvious at the Forest Service. Here, fear of FACA-related litigation has led the Agency to explicitly distance itself from grass-roots collaborative groups and try to replicate their activities within newly formed FACA-chartered committees. There is irony in this. Much attention to FACA's impact on participation arose from events surrounding the Clinton Administration's Northwest Forest Management Plan—an effort which, in its rhetoric at least, embraced grass-roots collaborative processes as a vision of the future for federal forest management. In 1993, Secretary of the Interior Bruce Babbitt even visited one grass-roots consensus group—the Applegate Partnership in southwestern Oregon—proclaiming, "I may be a witness today to a very important beginning. It's important to know there are a few places on this battlefield where people have put down their weapons and started talking to each other."⁵⁶

The Clinton Administration's subsequent Northwest Forest Management Plan called for similar grass-roots collaborative approaches throughout Northwest forests. But following a lawsuit charging that the plan had violated FACA (for reasons unrelated to these grass-roots groups), the Forest Service pulled out of involvement in most of these local participatory efforts.⁵⁷ Consensus groups were given the option to charter under FACA or members could participate in 12 region-specific subcommittees set up under the FACA-chartered Advisory Committee to the Provincial Interagency Executive Committee.

Most consensus groups have subsequently not chartered under FACA and many stakeholders expressed—at least initially—reluctance to participate in the Forest Service's new FACA committees.⁵⁸ As these FACA committees reach their five-year mark, they have reportedly been successful in bringing together a variety of stakeholders to work toward implementing the Northwest Forest Management Plan. At the same time, the Forest Service has shifted its collaborative activities away from nongovernmental efforts, such as the Applegate Partnership. The Forest Service is still involved with the Applegate Partnership, for example, but its role has changed from participant to guest. Forest Service personnel still maintain personal and informal relationships with Applegate Partnership participants and can attend some meetings to share information. The Forest [29 ELR 10409] Service's interpretation of FACA, however, restricts personnel from attending all of these meetings or explicitly acting on recommendations.⁵⁹ While fear of FACA-related litigation has not ended stakeholder collaboration on Northwest forest issues, it has caused the Forest Service to displace grass-roots collaborative efforts with agency-led collaborative efforts, instituting a decidedly more top-down approach to what had been community-led phenomena.

An examination of site- and region-specific advisory committees has underlined the comment from one EPA employee we spoke with—that FACA makes the process of stakeholder involvement constraint-driven. What is obvious from these cases, is that many of the barriers to participation arise from agency efforts to avoid FACA. In the best case, agencies become more creative about how they charter committees: DOE chose a 12-in-1 approach in order to avoid the ceiling on committees. In the more disturbing cases, agencies have intentionally limited their receptivity to the full potential of collaboration. The DOD has drawn the line at receiving consensual advice. EPA insists that it is only exchanging facts and information with individuals on its committees. And the Forest Service has distanced itself from what had only recently been claimed to be the wave of the future in forest resource management.

Conclusion

This Dialogue has examined nonexpert federal advisory committees and the law that governs them. The influences that FACA has had on public participation through advisory committees are too complex to simply say the law does or does not work. It is more accurate to say that FACA has been successful in doing what it set out to do, but it has failed to change in step with an evolving environmental regulatory system that includes a greater role for stakeholder collaboration.

We start with the accomplishments. FACA has clearly been successful in limiting the undue influence of special interests in committees that advise the government. It has also made the operations of these committees more transparent and accountable to non-members. The committees created under the Act are unique institutions that allow government to obtain a more in-depth understanding of their stakeholders' concerns and preferences than is available through other means. They have become an important vehicle for the functioning of pluralist democracy.

But, as discussed throughout this Dialogue, there are many ways in which FACA is not working. In these cases, it has come to fit poorly with trends and innovations in collaborative environmental policymaking. Although the key elements of FACA were designed to provide public access to advisory committees, the law's procedural requirements and ambiguities have had a detrimental effect on collaboration. This is not to say that collaboration is appropriate for all stakeholder efforts. In many cases, consultative public involvement is sufficient. But, with place-based decisionmaking efforts springing up around the country—many on issues in which the federal government plays a significant role—the demand for collaboration appears to be outstripping the supply. And the gatekeeper to that supply is FACA.

In many cases, FACA makes it simply too difficult to become a federal advisory committee. These procedural barriers have only been exacerbated by the administrative ceilings on advisory committee formation. While the current Administration expresses support for stakeholder involvement, its ceilings on FACA committees are in direct conflict with that goal. Encouraging agencies to increase stake-holder involvement, while ordering them to reduce their use of advisory committees, creates yet another obstacle for the formation of committees.

Ironically, these barriers feed on an inherent weakness in the Act—the ambiguity which inspires FACA-phobia among agencies. As it becomes more difficult to create committees, agencies are forced to choose between engageing public groups outside of FACA, thereby risking litigation, or not engaging these groups at all. The combination of FACA's chilling effects and the lever the law provides for trimming the number of advisory committees has had very real effects on how agencies choose to involve the public, as was seen in the discussion of four departments' and agencies' approaches to site- and region-specific committees.

It should not be surprising that FACA has had such a profound impact on public involvement. Its requirements for a formal charter, balanced membership, and open meetings were born as much out of a fear that certain "publics" had too much access and influence on policymakers as the fear that the public at large did not have enough. It was not designed to increase participation in government per se, but to manage the process in a way that limited the influence of special interests.

Unfortunately, FACA's barriers to public involvement are likely to fall disproportionately on site- and regionspecific committees. The realities of FACA-its procedural barriers to bottom-up participation, FACA-phobia, and the lever it provides for limiting the proliferation of committees—means that advisory committees are most likely to be formed, and may work best, on national decisions "inside the beltway." It is in this type of high-level decisionmaking that there is the time, resources, and political will to leap over the many hurdles FACA creates.

In short, FACA advisory committees are more likely to represent traditional pluralist decisionmaking—with interest groups vying for position—than place-based decisionmaking which emphasizes a bottom-up collaborative approach. In a sense, FACA enshrined this pluralist model in advisory committees. Scope provisions prevent undue influence. Balance provisions ensure that all interests are involved and well-defined. And transparency provisions ensure public oversight. These requirements are highly appropriate in national decisionmaking, but can run afoul of bottom-up, more popular forms of democracy, where interests are less well-defined, conflicts of interest are more likely, and ad hoc participatory efforts cannot often survive the procedural rigors of FACA. So that FACA can accommodate a shift in environmental management toward more place-based efforts, some aspects of the law need to be changed.

Recommendations

Three recommendations follow from the analysis and conclusions presented in this Dialogue. First, lift the administrative ceiling on advisory committees. The administrative ceiling makes agencies err on the side of forming too few [29 ELR 10410] committees. Not only does this limit agencies' use of this valuable resource, it exacerbates FACA's other chilling effects on participation. It adds one more hurdle for groups to surmount in order to become a sanctioned advisory committee. It strengthens FACA-phobia by forcing agencies to limit the quality of their participatory efforts (by, for example, not allowing consensus) in order to avoid triggering the law. If agencies could be encouraged to err on the side of forming too many advisory committees rather than too few, many of the problems discussed in this paper would fade in importance. Advisory committees should be recognized for what they are—a good and relatively cheap vehicle for getting outside advice and engaging the public.

Second, clarify GSA regulations, and possibly the Act itself, regarding what kind of interactions with the public are subject to FACA. The ambiguity about what kind of committee triggers FACA is the leading culprit in FACA-phobia. The problem is not where the line between a FACA and non-FACA committee is drawn, but that it is not drawn in a clear and consistent manner. Because courts have not always deferred to GSA regulations in determining where this line should be, a legislative fix clarifying the meaning of "established" and "utilized" in the Act itself may be necessary as well. Comprehensive analyses of FACA and its case law by Professors Steven P. Croley and William F. Funk are a good foundation on which these efforts to clarify the reach of FACA should be built.⁶⁰

While FACA-phobia has its origins in law, it is a behavioral phenomenon as well. Agencies appear to have been too fearful of FACA. For a number of reasons, they can be encouraged to be more bold. Principal among these is that the punishments for violating FACA have not been that bad. Only in one case has a violation of FACA been used to enjoin the results of a FACA process. Moreover, as pointed out by Professor Croley, if agencies comply with the spirit of FACA—principally by being open and fair in their processes—they are less likely to find interests willing to bring suit against them on FACA grounds and more likely to get favorable rulings by the courts if suits are brought.⁶¹ While there are obvious problems with a law if agencies are encouraged to be less concerned about violating it, absent any administrative or legal changes to how FACA is applied, a less cautious approach on the part of agencies seems warranted.

Third, streamline the procedural requirements for forming and operating an advisory committee. It should be easier to form an advisory committee under FACA than current procedures allow. There are at least three approaches: (1) streamline administrative processing of procedural requirements, such as chartering and approval, (2) reduce procedural requirements for certain types of committees, or (3) exempt certain types of committees from procedural requirements altogether.⁶² In each case, the challenge is to make FACA more flexible without losing the benefits it provides of balance, openness, and accountability. Expediting chartering and approval procedures are two ways to streamline the committee formation process without legislative changes. More dramatic changes, through legislation, could consider (1) establishing a "drop dead" date by which advisory committees are automatically chartered, (2) devolving approval and chartering authority to lower levels of agency hierarchies, or (3) introducing a "conditional" charter under which approved committees can meet prior to chartering by agency heads. Other issues to consider are eliminating the requirement that committees publish meeting notices in the Federal Register (in favor of more targeted and appropriate mediums) and giving committee members, rather than agency officials, the right to adjourn meetings and approve agendas.

As discussed throughout this Dialogue, the appropriate targets for all of these reforms are the site- and region-specific committees to which FACA seems to do the most harm. If agencies are indeed committed to stakeholder involvement, such place-based efforts can be expected to proliferate "outside the beltway" where much day-to-day policy is carried out. If current practice is any indication of how well FACA can accommodate such a change, a reassessment of FACA is in order.

1. J. Charles Fox, A Real Public Role, ENVTL, F., Nov./Dec. 1998, at 19, 21.

2. Reports in the last few years by the National Research Council and the Presidential/Congressional Commission on Risk Assessment and Risk Management have identified improving public involvement as one of the principal challenges facing government agencies responsible for managing environmental risks. See NATIONAL RESEARCH COUNCIL, UNDERSTANDING RISK: INFORMING DECISIONS IN A DEMOCRATIC SOCIETY 1 (1996); PRESIDENTIAL/CONGRESSIONAL COMMISSION ON RISK ASSESSMENT AND RISK MANAGEMENT, FRAMEWORK FOR ENVIRONMENTAL HEALTH RISK MANAGEMENT, FINAL REPORT 1 (1997). More generally, researchers have called attention to the role of public involvement as a remedy for the public's declining trust in government and a drop-off in civic activity seen over the last three decades. See, e.g., Robert D. Putnam, Bowling Alone: America's Declining Social Capital, J. OF DEMOCRACY, Jan. 1995, at 65; Paul Slovic, Perceived Risk, Trust, and Democracy, 13 RISK ANALYSIS 675 (1993). Noting these downward trends, EPA Administrator William D. Ruckelshaus has warned that a lack of participation and trust is seriously undermining the government'sability to manage environmental risks effectively. See William D. Ruckelshaus, Trust in Government: A Prescription for Restoration, Webb Lecture Presented at the National Academy of Public Administration (Nov. 15, 1996).

3. 5 U.S.C. app. 2 §§ 1-15.

4. Michael H. Cardozo, The Federal Advisory Committee Act in Operation, 33 ADMIN. L. REV. 1, 10 (1981) (quoting Hearings on S. 1637, S. 1964, and S. 2064 Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Government Operations, 92d Cong. 12 (1971)).

5. 41 C.F.R. pt. 101-6 (1987). Administrative authority for FACA was originally vested in the President and the Office of Management and Budget. Exec. Order No. 12024, 42 Fed. Reg. 56101 (1977) transferred most administrative responsibility to the GSA.

6. Other reviews over the last few years have also concluded that FACA is working in some respects, but that some fundamental flaws need to be addressed. See, e.g., Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 YALE J. ON REG. 451 (1997); Steven P. Croley, Practical Guidance on the Applicability of the Federal Advisory Committee Act, 10 ADMIN. L.J. 111 (1996); U.S. GAO, FEDERAL ADVISORY COMMITTEE ACT: VIEWS OF COMMITTEE MEMBERS AND AGENCIES ON FEDERAL ADVISORY COMMITTEE ISSUES, GAO/GGD Doc. No. 98-147 (1998).

7. U.S. EPA, Science Advisory Board, About the SAB (visited Apr. 30, 1999) http://www.epa.gov/science1/about.htm.

8. There are, however, interesting issues related to the role that lay people may play in expert committees. See, e.g., SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS 1 (1990).

9. Fox, supra note 1, at 24.

10. U.S. EPA, Clean Air Act Advisory Committee (visited Apr. 30, 1999) http://134.67.104.12/html/ozpmrh/caaac.htm.

11. EPA's CAGs were developed in response to a report issued in April 1994: ENVIRONMENTAL JUSTICE TASK FORCE, DRAFT FINAL REPORT, EPA Doc. No. 540-R-94-004 (1994).

12. Edward P. Weber, A New Vanguard for the Environment: Grass-Roots Ecosystem Management as a New Environmental Movement 4 (Sept. 23, 1998) (unpublished manuscript, on file with authors).

13. John S. Applegate, Beyond the Usual Suspects: The Use of Citizens Advisory Boards in Administrative Decisionmaking, 73 IND. L.J. 903 (1998).

14. EPA's guidance on who should be a member of a CAG, for example, specifies that at least half of the members of a CAG should be residents who live near the site with a "direct, personal interest" in it. The guidance actively discourages the membership of non-local representatives of national groups, including environmental groups. U.S. EPA, Focus on the Community Advisory Group Program, SUPERFUND TODAY, May 1996, at 2; U.S. EPA, GUIDANCE FOR COMMUNITY ADVISORY GROUPS AT SUPERFUND SITES, EPA Doc. No. 540-K-96-001, at 3 (1995) [hereinafter CAG GUIDANCE].

15. A number of recent publications describe "place-based" decisionmaking under its various names. See, e.g., TED BERNARD & JORA YOUNG, THE ECOLOGY OF HOPE: COMMUNITIES COLLABORATE FOR SUSTAINABILITY 1 (1997); DEWITT JOHN, CIVIC ENVIRONMENTALISM: ALTERNATIVES TO REGULATION IN STATES AND COMMUNITIES 1 (1994); DANIEL KEMMIS, COMMUNITY AND THE POLITICS OF PLACE 1 (1990); Weber, supra note 12.

16. U.S. EPA, BETTER DECISIONS THROUGH CONSULTATION AND COLLABORATION: A MANUAL ON CONSULTATIVE PROCESSES AND STAKEHOLDER INVOLVEMENT 1 (Oct. 29, 1998) (draft report on file with authors).

17. See id. at 9.

18. For a discussion of what various participatory mechanisms might be expected to accomplish, see Thomas C. Beierle, Public Participation in Environmental Decisions: An Evaluation Framework Using Social Goals (Resources for the Future Discussion Paper No. 99-06, 1999). Of course, many advisory committees fail to meet these goals. A study of regulatory negotiations and conflict, for example, found that, "as a means of reducing litigation, negotiated rulemaking has yet to show any demonstrable success." Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE L.J. 1309 (1997). On the matter of trust, DOE found that less than half of the respondents to a survey of committee members and agency personnel felt that the Department's SSAB process had "contributed to trust and confidence in DOE." U.S. DOE, SITE-SPECIFIC ADVISORY BOARD INITIATIVE, 1997 EVALUATION SURVEY RESULTS: VOL. 1, SUMMARY REPORT 25 (Sept. 1997).

19. See, e.g., BERNARD & YOUNG, supra note 15; JOHN, supra note 15; NATIONAL. ACADEMY OF PUBLIC ADMINISTRATION, RESOLVING THE PARADOX OF ENVIRONMENTAL PROTECTION 1 (1997); LAWRENCE SUSSKIND & JEFFREY CRUIKSHANK, BREAKING THE IMPASSE: CONSENSUAL APPROACHES TO RESOLVING PUBLIC DISPUTES 1 (1987).

20. Meetings may be closed if they involve "discussions of classified information; reviews of proprietary data submitted in support of Federal grant applications; and deliberations involving consideration of information governed by the Privacy Act." GSA, ANNUAL REPORT OF THE PRESIDENT ON FEDERAL ADVISORY COMMITTEES, FISCAL YEAR 1997 4-5 (1998).

21. 5 U.S.C. app. 2 §§ 5, 10, 14.

22. Those interviewed included: "Forest Service Regional Social Science Coordinators, General Counsels, Regional and Forest-level Ecosystem Management Coordinators, Forest Supervisors, District Rangers, BLM planners, NGOs, and private industry executives." Daniel B. Schlager & Wayne A. Freimund, Institutional and Legal Barriers to Ecosystem Management, Paper Presented at the Integrating Social Science in Ecosystem Management Conference 1-3 (Dec. 12-15, 1994) (on file with authors).

23. THOMAS BRENDLER & SHIRL CROSMAN, THE FEDERAL ADVISORY COMMITTEE ACT: IMPLICATIONS FOR PUBLIC INVOLVEMENT ON THE NATIONAL FORESTS 8 (1995).

24. Advisory committees are established under FACA in one of four ways: they are (1) required by statute, (2) authorized by statute, (3) established under general agency authority, or (4) established under presidential authority (generally by Executive Order). Those required by law or established by the President are considered "nondiscretionary," while those authorized by law or created under agency authority are considered "discretionary."

25. Much of the information on the BMNRI comes from conversations with Lynn Starr of the Institute.

26. Exec. Order No. 12838, 58 Fed. Reg. 8207 (1993).

27. Memorandum From Vice President AlGore on Management of Federal Advisory Committees to the Heads of Executive Departments and Agencies (June 28, 1994).

28. Croley, supra note 6, at 114.

29. At the end of fiscal year (FY) 1997, EPA had 27 committees, a large increase from 1985 when it had 7, but only a small increase since 1993 when it had 25. The number of members serving on EPA's advisory committees nearly doubled from 823 in 1993 to 1,565 in 1997. These increases are mainly due to the Common Sense Initiative Council (CSIC) chartered in 1995 to develop "cleaner, cheaper, smarter" environmental management solutions. Including its subcommittees, CSIC met 151 times in FY 1995 (around 40 percent of EPA's total FACA meetings that year) and cost the Agency about $ 2.8 million. The number of DOE advisory committees has also grown since 1993. DOE had a total of 22 advisory committees in existence at the end of FY 1997 in comparison to 17 in 1993. Membership has grown as well. In 1997, DOE's advisory committees had a total of 808 members, a 25 percent rise over 645 members in 1993. One of DOE's committees, the Environmental Management SSAB, and its subcommittees, held the majority of the Department's meetings in 1997 (95 meetings out of a total of 140 meetings). See GSA, supra note 20; GSA, ANNUAL REPORT OF THE PRESIDENT ON FEDERAL ADVISORY COMMITTEES, FISCAL YEAR 1995 (1996); GSA, ANNUAL REPORT OF THE PRESIDENT ON FEDERAL ADVISORY COMMITTEES, FISCAL YEAR 1993 (1994).

30. U.S. GAO, supra note 6, at 43.

31. Thomas Brendler. The Federal Advisory Committee Act: What You Need to Know, CHRON. OF COMMUNITY, Autumn 1996, at 44, 46.

32. 1 INTERAGENCY ECOSYSTEM MANAGEMENT TASK FORCE, THE ECOSYSTEM APPROACH: HEALTH ECOSYSTEMS AND SUSTAINABLE ECONOMIES 34 (1995).

33. Kathie Durbin, The Progress of Freewheeling Consensus Jeopardized as Feds Pull Back, HIGH COUNTRY NEWS, Oct. 17, 1994, at 4.

34. U.S. GAO, supra note 6, at 59.

35. Id. at 4-5.

36. Id. at 16.

37. 5 U.S.C. app. 2 § 3(2).

38. 41 C.F.R. pt. 101-6 (1987).

39. The courts have not given GSA regulations much deference because of (1) a general lack of deference to regulations developed by one agency (GSA) for a statue that governs all agencies, (2) the fact that the regulations were promulgated many years after the Act was passed, and (3) the fact that the regulations were not promulgated as a result of explicit statutory authority. See Croley, supra note 6. at 124.

40. 491 U.S. 440, 452-53 (1989).

41. See, e.g., Memorandum from James L. Dean, GSA Committee Management Secretariat, on Application of the Federal Advisory Committee Act to Intergovernmental Contacts, to Committee Management Officers (Mar. 21, 1994); U.S. EPA, Summary of Significant Legal Requirements and Overview: Federal Advisory Committee Act, Distributed at the Western Community Based Environmental Protection Practioners' Workshop Session on Regional Experience With Stakeholder Involvement (July 22-24, 1997); Memorandum (and accompanying guidelines) from Jack Ward Thomas, National Forest Service, on Recent Federal Advisory Committee Act Interpretations, to All Employees (Oct. 2, 1995). A useful decision-tree for determining whether particular types of interactions trigger FACA is presented in Croley, supra note 6, at 134.

42. California Forestry Ass'n v. U.S. Forest Serv., 102 F.3d 609, 614 (D.C. Cir. 1996).

43. 26 F.3d 1103, 24 ELR 21333 (11th Cir. 1994).

44. Id. at 1105, 24 ELR 21334.

45. Id. at 1107.

46. Id. (emphasis added).

47. U.S. EPA, FEDERAL FACILITIES ENVIRONMENTAL RESTORATION DIALOGUE COMMITTEE, CONSENSUS PRINCIPLES AND RECOMMENDATIONS FOR IMPROVING FEDERAL FACILITIES CLEANUP 47 (1996) [hereinafter FEDERAL FACILITIES COMMITTEE].

48. GSA, supra note 20, at 7, 21.

49. In taking this approach, the DOD was following the guidance of the Federal Facilities Environmental Restoration Dialogue Committee (FFER). This committee was formed in 1992 by EPA to develop recommendations for increasing public involvement in environmental cleanup decisions at federal facilities. In its 1993 Interim Report, FFER recommended that agencies use citizen advisory boards in order to obtain input from stakeholders affected by contaminated sites. FFER recommended that the boards adhere to the spirit of FACA (that committees be balanced, hold open meetings, and provide public notice), but advised against chartering them under FACA in order to avoid its administrative requirements. It stated that "many of the administrative provisions in both the FACA statutory language and its implementing regulations are burdensome at best and intrusive in many cases." FEDERAL FACILITIES COMMITTEE, supra note 47, at 54.

50. These are: (1) seeking facts and information rather than advice and recommendations, (2) seeking individual advice rather than group consensus, (3) avoiding strict agency management and control, and (4) avoiding repeated meetings. See supra text accompanying note 41.

51. Conversation with Marilynn Null, U.S. Air Force (Mar. 25, 1998).

52. Letter from Suzanne Wells, Director, Community Involvement and Outreach Center, U.S. EPA, to Committee Management Secretariat, GSA, on FACA Regulations (July 14, 1997).

53. CAG GUIDANCE, supra note 14, at 2.

54. See id. at 2, 15 (emphasis added).

55. Memorandum from Sonya S. Pennock, U.S. EPA, Region VII, to Committee Management Secretariat, GSA on FACA Regulations 1 (July 10, 1997).

56. Durbin, supra note 33, at 4.

57. The lawsuit was Northwest Forest Resources Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994), in which the Forest Service was charged with violating the law by inappropriately excluding the public from access to a scientific panel engaged in research efforts supporting President Clinton's Northwest Forest Management Plan. The Forest Service responded to the lawsuit by halting any activities that might violate FACA, including collaborative decisionmaking efforts BRENDLER & CROSMAN, supra note 23, at 1.

58. Durbin, supra note 33, at 5.

59. Conversation with Shandra Smith, U.S. Forest Service (Jan. 13, 1999).

60. Croley & Funk, supra note 6; Croley, supra note 6.

61. Croley, supra note 6, at 176.

62. Exemptions from FACA are not unprecedented. For example, the original legislation exempted committees established or utilized by the Central Intelligence Agency, the Federal Reserve System, or any civic group rendering a public service as part of a federal program. FACA, 5 U.S.C. app. 2 § 4(b)-(c). More recently, the FACA Amendments of 1997, Pub. L. No. 105-153, 111 Stat. 2689 (1997) exempted committees established by the National Academy of Science and the National Academy of Public Administration from FACA. The legislation was a response to a ruling by the U.S. Court of Appeals for the District of Columbia that a committee convened by the National Academy of Sciences was subject to FACA. See Animal Legal Defense Fund, Inc. v. Shalala, 104 F.3d 424 (D.C. Cir. 1997).