Auditing Environmental Documents:

Auditing Environmental Documents:

Why Some Environmental Assessments
Can Be As Flawed As Corporate Financial Statements

By Pete Holloran, Jim Bishop, Jen Kalt,
David Magney, and Barbara Sattler

For more than three decades, the general public and decision-makers alike have relied on environmental review documents to inform them about the impact of proposed projects on the environment. Like investors in the stock market who rely on the accuracy of corporate financial statements, the public and its representatives depend on accurate and complete information in environmental planning documents. As in the world of corporate accounting, however, there are strong forces impeding full disclosure in environmental documents. Environmental consulting firms, cast in the role of auditors providing objective assessments of environmental impacts, are just as prone to the types of pressures that led Arthur Andersen to sign off on flawed financial statements at Enron. Someone needs to audit the auditors.

In the three decades since landmark environmental planning acts like NEPA and CEQA were signed, it’s become clear that auditing environmental assessments can be just as difficult as auditing financial documents.[1] The quantity of information can be overwhelming. In 2002, for example, California entered more than 13,000 documents into its CEQAnet database. Reviewing more than a fraction of these for consistency—much less accuracy and completeness—is well beyond the limited resources of state agencies. Maintaining standards falls instead upon a combination of parties.

The Role of Government, Industry, and the Public in Enforcing Standards

State, county, and local governments collectively review every single CEQA document, but their reviews are often cursory or plagued by conflicts of interest. To some extent, the environmental consulting industry regulates itself through professional norms and practices, although these are much less clearly articulated and enforced than in the accounting industry.[2] Given these constraints, the citizens of California must play an absolutely central role in ensuring that CEQA documents meet minimum standards. The importance of citizen watchdogs was recognized in the Act itself: “Every citizen has a responsibility to contribute to the preservation and enhancement of the environment.” Most legal challenges to CEQA documents are the direct result of citizen action and concern.

In theory, these three actors—government, industry, and the public—exert a strong influence on the quality of documents, resulting in environmental assessments whose accuracy and completeness reflect the best collective wisdom and knowledge currently available. In practice, however, assessments can exhibit a wide range of flaws. A flawed analysis in one section can lead to serious problems in other sections. If the assessment badly underestimates the impacts of the project on air quality, then the potential impacts on botanical resources will probably be underestimated as well.

In this white paper, we have chosen to illustrate the problem by focusing our attention on the role of botanical surveys in environmental planning documents. Botanical surveys are conducted as a first step in the evaluation of potential impacts to botanical resources. If a survey is flawed, then any analysis of the potential impacts will be flawed as well. Common flaws include visiting sites only once (perhaps even in the off-season); identifying difficult taxa to genus only (e.g., Carex sp.); or neglecting to document when field surveys took place and who did them. More egregious errors include the use of “pre-surveys” by project applicants who hire consulting botanists prior to the formal surveys triggered by CEQA and insist that they sign a nondisclosure agreement. Project applicants then take measures to eradicate rare plant populations discovered during the pre-survey. This seems to be the fate of several San Fernando Valley Spineflower populations on the Newhall Ranch.

What can be done to strengthen the critical role of government, industry, and the public in auditing environmental documents? Answering this question depends on understanding the range of problems that can be found in environmental documents as well as how extensive those problems are. In addition, it is important to know whether such flaws are being addressed by existing efforts or whether innovative approaches might be necessary.

A Critical Role for the California Native Plant Society

The ten thousand or so members of the California Native Plant Society include the vast majority of those who evaluate potential impacts on botanical resources as well as those who review such planning documents critically as members of the public or agency employees. There is increasing concern among CNPS members of all stripes about the quality of environmental documents.

The CNPS Chapter Council responded to this concern by charging its Plant Science Policy Committee to investigate the matter and report back with a position paper that summarized the problem. This white paper is the outcome of that effort. We have chosen to focus here on botanical surveys rather than on other products of botanical consultants, that is, mitigation requirements, restoration and management plans, and monitoring protocols. We did so in order to complete our assignment in a timely manner and because we feel that the problems with botanical surveys are representative of the wider problem.

It is important to note the distinction between a flawed botanical survey and a flawed environmental assessment.[3] Some errors in botanical surveys may have little actual impact on the findings of environmental impacts; other errors can lead to major flaws in an environmental assessment. An environmental assessment based on improper or incomplete botanical surveys can result in major adverse impacts on the diverse native flora of California.[4]

During the last nine months, participants in the Society’s online “Botany Standards Forum” helped compile a fairly comprehensive list of problems encountered in botanical surveys (see Table 1). Participants offered anecdotal evidence for most problems, some of which are clearly more widespread than others. It is probably safe to say, for example, that the vast majority of botanical surveys fail to document taxa with voucher specimens despite the recommendations to do so found in CDFG and CNPS survey guidelines. The true extent of other problems—the use of pre-surveys by project proponents, for example—is less well known.

How might CNPS and its members seek to address these types of problems? It might act strategically by developing tactics that focus on all three key actors—government, industry, and the public. There are ways in which each actor can audit the auditors and help ensure that botanical surveys are reasonably accurate and complete. The following brief survey of options is meant to be suggestive rather than comprehensive. Inclusion here does not indicate a preference for one approach over another. It’s safe to say, though, that the approach that CNPS eventually adopts will probably combine actions across all three realms.

In the government realm, CNPS might support AB 406, which requires that all botanical surveys be a matter of the public record and not subject to nondisclosure agreements if they are conducted pursuant to CEQA.[5] CNPS might lobby for a requirement in the California Forest Practice Rules stating that all botanical surveys shall be floristic in nature rather than simply focused surveys for certain rare species.

In the realm of industry practice, CNPS might work with the Association of Environmental Professionals and other professional organizations to develop botanical survey guidelines that its members agree to follow as a matter of standard practice. CNPS might even lobby for the establishment of an independent non-profit organization that would certify professional botanists or choose to develop such a program within CNPS. We mention this only to suggest that these types of approaches seek to address the social norms that operate within the environmental consulting industry.

In the realm of citizen involvement, CNPS might offer regional workshops for its activist members that would offer tips and techniques for reviewing botanical surveys in CEQA documents and writing comment letters in such a way that the technical deficiencies of the botanical surveys are highlighted for agency staff and decision-makers. CNPS could even file a strategic lawsuit that aimed to establish a minimum standard for botanical surveys that emanates from scientific practice rather than administrative guidelines.[6]

Recommendations to the CNPS Chapter Council

As an organization, the decision about how to proceed resides with the CNPS Chapter Council and the Board of Directors. As members of an ad hoc subcommittee of the CNPS Chapter Council’s Plant Science Policy Committee, we recommend that the Chapter Council address several issues at its meeting in June 2003:

Ø whether it endorses the major finding of this white paper: that flawed environmental planning documents (particularly botanical surveys) represent a significant threat to the diverse native flora of California

Ø whether it recommends that CNPS consider including efforts to address this problem in the organization’s strategic plan

Ø whether it recommends that CNPS devote significant resources to documenting the extent of particular flaws and outlining the possible actions that CNPS can take as an organization to address such flaws

Several points in our recommendations are worth clarifying. We recommend that CNPS proceed to the next step—developing strategies and tactics for improving the quality of flawed botanical surveys and environmental planning documents. It’s unclear to us, though, whether the Chapter Council or the Board of Directors is responsible for making that decision. This might be an important opportunity for the Chapter Council to clarify its relationship with the Board of Directors. Who is responsible for articulating the overall strategic plan for the organization?

Regardless of how this question is resolved, we look forward to participating in future deliberations. We wish to do so, however, as volunteers working under the direction of the Executive Director rather than as an independent ad hoc committee of the Chapter Council. We believe that some level of staff support will be a key factor if we are to accomplish meaningful change. If the organization decides to pursue a legislative solution as part of its strategy, staff will help insure that the recommendations are closely integrated into the organization’s overall legislative agenda. By making this point we are not signaling our intention to disengage from the problem.

In our third recommendation, we emphasize the importance of documentation and quantification because environmental planning is highly politicized. Any claims about the nature and extent of flaws need to be carefully documented. If our only evidence is anecdotal, our initiatives will be torn apart by the forces of reaction. Documentation need not always be burdensome, however. Documenting just one case—as the Los Angeles County District Attorney did in the case of Newhall Ranch—can lead to legislative proposals like AB 406. Certain options require less of an evidentiary burden. Without any more investigation of the problem, CNPS can develop regional workshops focused on making local activists more savvy about the problems with botanical surveys and what they can do about it in their CEQA comment letters. Staff direction is important in this respect because volunteers like ourselves are limited in our ability to coordinate the documentation effort.

Draft submitted on 15 May 2003 by members of the CNPS Chapter Council ad hoc committee on Plant Science Policy: Jim Bishop, Pete Holloran (lead writer), Jen Kalt, David Magney (chair), and Barbara Sattler.

Table 1. Problems Associated with Botanical Surveys in Environmental Planning

Between September 2002 and April 2003, participants in the CNPS online “Botany Standards Forum” reported a wide variety of problems encountered in botanical surveys. The following list is meant to serve as a reasonably comprehensive survey of those problems. According to the testimony of the participants, some of these problems are extremely common. Others have been documented in several cases but have the potential to occur on a broader scale.

Problems with Botanical Surveys

Ø Surveys may be inadequate in geographic terms (surveyed area is only a fraction of the project area; only the perimeter is surveyed; survey is not systematic)

Ø Surveys may be inadequate in taxonomic terms (surveyed only for listed species, not species of special concern; survey narrowly focused on listed taxa rather than floristic survey that aims to document extent of plant resources that will be impacted)

Ø Surveys may be inadequate in temporal terms (surveyed during inappropriate season, which may be used to make misleading assertions of “no evidence” for the presence of particular species within the project area)

Ø CDFG plant survey guidelines may not be followed; even if followed to the letter, the guidelines may not go far enough

Ø Surveyors may be inexperienced or otherwise unqualified (they have little experience conducting floristic plant surveys)

Ø Surveyors may be paid and overseen by project proponents and hence susceptible to pressure (some counties require developers to pay for botanical surveys, but county staff retain the right to choose the botanical consultants and oversee botanical surveys)

Problems with Botanical Survey Reports

Ø Survey results may not be adequately mapped

Ø Important survey information may not be reported (who conducted the survey; what were their qualifications; when did the survey take place)

Ø Survey reports or significant sections (particularly maps) may not be made available to the public

Problems with Project Proponents Who Misuse Botanical Surveys

Ø Project proponents may shop for favorable reports (employ several botanical surveyors but choose only the least damaging report to include in CEQA document)

Ø Project proponents may offer outright bribes to suppress unfavorable botanical surveys or refuse to employ botanists who have submitted honest but damaging reports in the past

Ø Project proponents may seek “pre-surveys” prior to initiating the CEQA process (project applicants hire consulting botanists, insist that they sign a nondisclosure agreement, and then take measures to eradicate rare plant populations discovered during the pre-survey)

Problems with Agency Review of Botanical Surveys

Ø Botanists hired by project proponents may be the only source of botanical information available to agency staff

Ø Agency staff may be subjected to political pressure by project proponents or their allies to deliver favorable review of botanical surveys

Ø Academic scientists asked to review botanical surveys by agency staff may refuse to do so out of fear of damaging their reputation as objective academics when the botanical survey is associated with highly controversial projects (UC Merced, for example)

Ø Agency staff may have a weak understanding of CEQA and its associated administrative guidelines

Ø Agency staff may find it difficult to enforce use of particular survey guidelines due to lack of legal precedent or legislative authority (CDFG survey guidelines are only recommended, not compulsory)

[1] Paul J. Culhane, “Post-EIS environmental auditing: a first step to making rational environmental assessment a reality,” The Environmental Professional, vol. 15 (1993): 66-75; Paul J. Culhane et al., Forecasts and environmental decisionmaking: The content and predictive accuracy of environmental impact statements (Boulder: Westview Press, 1987).

[2] For an example of a professional code of ethics, see the National Association of Environmental Professionals’ (NAEP) Code of Ethics and Standards of Practice for Environmental Professionals [http://www.naep.org/ethics.html: accessed 8 May 2003].

[3] We use the term “environmental assessment” in a generic sense to refer to documents produced pursuant to CEQA, NEPA, or other land use planning effort.

[4] The deeply flawed environmental documents relating to Newhall Ranch stem largely from problems associated with the developer’s handling of rare plant surveys and the silence of their consultants.

[6] As scientific practices and techniques become more common in public policy, the legal system has had to develop ways of grappling with the scientific method and measures of uncertainty. There is an extensive legal literature on what constitutes standard practice in drug testing, DNA fingerprinting, and environmental monitoring (water quality, etc.), to name just three examples. There are fewer legal tests of ecological monitoring, but see two court cases testing the mitigation monitoring requirements associated with the amendment to CEQA in AB 3180 (Rio Vista Farm Bureau Center v. County of Solano, Christward Ministry v. San Diego). One author suggested that these court cases indicates that “anything goes” when it comes to standards for mitigation monitoring. If CNPS chose to file a strategic lawsuit that aimed at setting legal standards for botanical surveys based on scientific practice, it would not want its case to result in a similar outcome! Cf. Association of Environmental Professionals, “Environmental Mitigation Monitoring and Reporting Under the California Environmental Quality Act (CEQA),” 15 December 2000.