Mark Hyde Proposes Change to EIS Consultant Choice Methodology

This letter was written by attorney, Mark Hyde and suggests a method of taking the pro-developer bias out of the EIS methods.  Now the developer chooses and pays for the EIS consultant which leads to developer-friendly EIS preparers getting the work.   Hyde is proposing a method used in other states where the accepting body (state or county) maintains a list of qualified EIS consultants and the developers choose for the list.  Developer still pays.

Re: Inherent Bias in EIS Consultant Work-product;

Fox in the Hen House

Dear Sen. Baker, Rep. Ing, Acting Dir. Asuncion and Dir. Wooley,

The environmental impact assessment scheme in Hawaii is well intended but in many cases fails to achieve the purposes intended due to inherent bias in the way consultants hired to prepare assessments are chosen and managed. When a project proponent is allowed to select a consultant to prepare an environmental impact statement, the assessment often becomes an argument for the project, not a true evaluation of impacts, alternatives and possible mitigations. Only by changing the consultant selection process – to one that is truly independent – can the objectives of the law be realized. This will require a change in the law and/or regulations, which is why I am writing to you.

Professor Sharon Beder of the University of Wollongong, Australia, states the problem well:

Environmental Impact Statements (EISs) have lost credibility with environmental and resident groups over recent years because they are being increasingly perceived as biased public relations documents. This arises in part because the community generally expects that an EIS should be an objective scientific report whilst many consultants and project proponents view an EIS as a supporting document prepared as part of the procedure for gaining approval for a project.” (“Bias and Credibility in Environmental Impact Assessments,” Sharon Beder, Chain Reaction, No. 68, February 1993, pp. 28-30.)

She also offers a good solution:

The major factors preventing a more transparent and accessible EIS and an atmosphere conducive to free discussion of likely impacts arise from the way the Environmental Impact Assessment (EIA) process is itself structured. Those who prepare the EIS, or hire the consultants to do so, usually have much at stake, financially or politically. The consultants themselves can also have much to lose. Consultants are dependent on the judgement of clients and that judgement is based on whether they are perceived to be able to deliver what is required by the client. Consultants with overdeveloped consciences, who do not put the client’s priorities first, are less likely to be given work in future. Professional integrity and codes of ethics don’t always withstand such pressures.

Consultants could be more independent if they were not directly hired by project proponents. An independent panel with community representation could choose the consultants from tenders. Proponents would still pay the consultants. In this way a firm which compiled an EIS that led to the abandonment of a project would not be penalized for doing so by being denied EIS work in the future. Of course such a panel would have also to be independent from government because of the prevalence of government projects that would have to be assessed.

Biases would still remain since judgements would still be required but there would be a better chance that those biases would be aligned with the community interests rather than the project proponent’s interests. Also there is more likelihood that consultants under such a system would be willing to make EISs more transparent to the public and to discuss uncertainties and unknowns. Nevertheless I have found both developers and EIS consultants opposed to such a scheme because it suits them and the cozy relationship they have with each other.” (Ibid; Emphasis added.)

A change in the law (1) creating a process for vetting and qualifying environmental consultants and (2) assigning consultants to projects would go a long way to eliminating this bias. This in turn would result in better decision-making, less contention and greater public confidence in government. Additionally, the burden now borne by agencies and the public to dig beyond biased and inadequate EIS documents would be significantly reduced, saving time, money and resulting in better outcomes all around.

Senator Baker, Representative Ing, and Directors Asuncion and Wooley, will you please give this thought and consider what can be done to improve on the existing law and regulations to eliminate bias?


Mark G. Hyde

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