The Federal Advisory Committee Act: barrier or boon to effective natural resource management?

• Author: Norris-York, Dover A.

1. INTRODUCTION

   As natural resource management issues continue rising to the forefront, it is important for the government not to alienate interested parties from the decision-making process. Currently, federal agencies can do more to involve representatives of interested parties at the initial planning stages, through the use of balanced advisory committees. Greater involvement in the entire resource management process will prevent ranchers, loggers, farmers, environmentalists, and citizens from feeling alienated from the process of determining what happens to the natural resources in their own backyards. Environmental legislation of the 1960s and 1970s gave the federal government more power to monitor and regulate natural resources in the name of the public.(1) Yet the public is still not always an integral part of the policy development that rests with various agencies.(2) Congress designed the Federal Advisory Committee Act (FACA)(3) to provide the public with greater access to the work of committees advising federal agencies.(4) Despite Congress's original intent, FACA is regularly interpreted and applied by both agencies and courts in a manner that limits citizen participation in agency policy and regulation development.(5)

   Under FACA, committees that include nonfederal employees and advise executive agencies(6) must follow procedural regulations, including requirements of openness. In addition, the Act requires representation of diverse viewpoints on committees subject to its provisions.(7) Enacted with noble goals, FACA now serves as a barrier to the incorporation of advice from a variety of sources.(8) Agencies dislike its numerous administrative requirements, and citizens resent how agency interpretations of the Act prevent them from working with agency officials and advisory committees.(9) The purpose of this Comment is to generate a dialogue by reviewing problems in applying the Act, analyzing the new Rangeland Reform as a model structure for promoting FACA, and providing recommendations for improving the advisory committee process.

   Part II reviews the history of FACA, explaining how it functions, and examining its potential to facilitate consensus in the management of natural resources. Part III articulates FACA's primary flaws and the effects of those problems by reviewing the leading cases interpreting FACA. Part IV details President Bill Clinton's new land management policy for rangeland reform(10) designed to fully employ FACA. If successful, its structure could serve as a model for other natural resource management projects. Finally, Part V outlines suggestions for improving the language and application of the Act in order to reach its potential as a tool for effective resource management.

2. THE BASIC WORKINGS OF THE FEDERAL ADVISORY COMMITTEE ACT

   1. FACA's Purpose

      In 1972, Congress passed the Federal Advisory Committee Act(11) despite resistance from the executive branch.(12) FACA's original intent was to diminish unnecessary committees, limit big-business influence on the regulatory process, and open meetings and reports to the public.(13) Impetus for FACA arose from dual concerns that advice from private interests overly influenced government decisions and that the unchecked use of experts and advisory groups was both costly and wasteful.(14) Today, FACA is largely viewed as a means for increasing public involvement in government action.(15)

   2. FACA's Requirements

      The creation of an advisory committee occurs through a chartering process.(16) Authorization for the creation of a committee can come from three separate sources: statutes, the President, or the agencies themselves.(17) The charter must include the objectives, scope, description of duties, costs, and estimated number and frequency of meetings.(18) Additionally, committee membership must be balanced "in terms of the points of view represented and the functions to be performed."(19) Committees comprised wholly of government employees are exempt under the Act.(20)

      Once chartered, a committee must follow several requirements, under FACA, throughout its existence.(21) Notice of all committee meetings must be published fifteen days in advance in the Federal Register(22) and must include the time, place, and agenda for the meeting. Public access to meetings is mandatory and detailed minutes must be kept.(23) However, a committee can apply to have part or all of a particular meeting closed to the public based on reasons acceptable under the Government in the Sunshine Act.(24) These requirements make advisory committees open to public scrutiny and involvement, but they also create administrative burdens.

   3. FACA's Potential to Facilitate Consensus in the Management of Natural Resources

      Congress originally enacted FACA to increase diverse sources of advice to agencies and expose committee work to public scrutiny.(25) This was in reaction to the dominance of large industries on advisory committees, leading to unchecked influence on government decisions.(26) FACA facilitates increased participation by interested citizens and organizations both through committee membership and opportunities for nonmembers to attend and speak at open meetings.(27) By involving a variety of interested, possibly adversarial, parties in advisory committees, agencies may promote the federal government's policy of using alternative methods of dispute resolution and a consensus-building style of agency rulemaking.(28) FACA, then, is an instrument for agency efforts to produce regulations that are more satisfactory and less likely to be challenged in court.(29)

      FACA has particular potential to aid government efforts to manage natural resources in a manner that satisfies the vast array of interests involved in this divisive area of modern policy making. Those who live, work, or play in an area that is the focus of federal agency management are likely to invest the most in the outcome of a plan.(30) Due to their interest, these people possess the information and motivation necessary to work toward a management plan.(31) By involving such interested parties, agencies gain cost-effective advice(32) from those most inclined to know the issues relevant to the particular project. By engaging in long-term, proactive planning efforts, natural resource users will have a clearer picture of the future and can adJust their needs accordingly. This creates a positive alternative to litigation for such users. While litigation is a reactive method of dealing with natural resources situations that generally occurs in response to a perceived crisis in the environment or product supply, a proactive approach tries to address issues before they become crises. Such a proactive approach is presented in the new Rangeland Management Plan discussed in Part IV. By explicitly integrating FACA into its framework, the Plan illustrates how FACA can be an excellent means for using the knowledge, experience, and motivation of directly affected people to effectively manage a given natural resource.

3. FACA's FAILINGS

   FACA is backfiring, creating results that directly counter its intent. A domino effect began with two major problems within the Act: the large number of requirements for creating and maintaining advisory committees, and several ambiguous terms in the Act's language. Because of these problems, many agencies failed to charter advisory committees, either in attempts to avoid FACA or from lack of awareness that the Act applied.(33) Additionally, executive pressure to cut costs by drastically reducing the number of advisory groups discouraged the routine chartering of committees.(34) Another reason for the general failure to charter committees is the lack of strong legal repercussions for not following FACA's requirements.(35)

   These factors contributed to widespread ignorance of FACA and confusion over when it applies. Recently, several lawsuits attacking unchartered committees led to increased public awareness of the Act.(36) In response, federal agencies have become overcautious in their dealings with groups of nonfederal employees to the extent that many citizen groups have lost access to federal agencies that address issues of local concern.(37)

   1. FACA's Numerous Requirements Discourage Its Use

      The many steps required to charter and maintain a committee make following FACA arduous. Much administrative work is necessary to create a committee, and the group may not convene before it is chartered.(38) These requirements create a burden for agencies trying to act on issues quickly.(39) If it takes several months to charter a committee, the number of participants may decrease as frustration with the system increases.(40)

      Once a committee is chartered and ready to begin work, there are many more requirements to follow during the course of its existence.(41) Each time a committee wants to meet it must first publish notice and an agenda for the meeting(42) in order to provide notice to members of the public who may wish to attend or follow a committee's progress.(43) This public accessibility could significantly affect committees as they work to build consensus on what action should be taken.(44) While participants' willingness to consider new alternatives and compromise are essential steps to building consensus, it is possible that open meetings work to discourage such actions. For example, open meetings can discourage individual participants from making even tentative concessions for fear of angering their constituents.(45) Further, well-qualified people may refuse to participate on a committee because the disclosure and reporting requirements preclude confidentiality.(46) Such conditions may increase agency and advisor discontent with the Act.

   2. FACA's Ambiguous Provisions

      Several of FACA's terms lack clear definition, leading to confusion and legal difficulties. One primary area of ambiguity is in deciding whether or not a committee should be chartered. FACA states that it...