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Lessons Learned from Decades of Community Benefits Negotiation

The “Lessons Learned from Decades of Community Benefits Negotiation” session of the workshop was conducted in a “fishbowl” format, which invites all audience members to engage in an interactive dialogue with invited speakers. The room was set up in concentric circles, with the moderator and panelists seated at the center. To encourage audience participation, an empty chair was available in the fishbowl. Any audience member could occupy the empty chair, prompting an existing member of the fishbowl to free up a chair. As the discussion continued, willing audience members could actively listen to and participate in the conversation. The discussion was moderated by Natasha Udu-gama, director of Community Science Advancement and Sustainability with the American Geophysical Union’s (AGU’s) Thriving Earth Exchange. The panelists who initially occupied chairs in the fishbowl included the following: Bonnie Ram, Ram Consultancy; Meghan Wilson, assistant professor of American politics and public policy, Michigan State University; Romany Webb, deputy director, Sabin Center for Climate Change Law, Columbia Law School; and Jackson Rose, Montana State University.

INCLUDING UNDERREPRESENTED COMMUNITIES

Udu-gama started the discussion by asking the panel to share examples of past projects where minority participation was successfully achieved, and lessons learned in the process. Wilson shared that as a Detroit, Michigan, resident, she has seen the local government include a community benefits agreement (CBA) in every major project. This has helped the city redevelop schools, deliver capital improvement bonds for schools, and set aside money to redesign curricula focused on understanding education for Black and Brown residents in urban cities like Detroit. One of the successes of the $500 million bond for schools included a new vocational technology school for high school students. This new school included an apprenticeship program and an afterschool program that helped students with state licensure.

A workshop participant from Bridgeport, Connecticut, joined the fishbowl and shared the example of successfully negotiating a CBA in her community. The developer was initially focused on increasing tree canopy in the area. However, the community needed an investment of $5 million for workforce development and green businesses. The community advisory council met with the developer for months to negotiate. One such session lasted 11 hours over the phone to bring the needed benefits to the community. The successful negotiations led to a CBA that also set aside funds for environmental justice groups.

Trust, Accountability, and Enforcement

Building on Wilson’s response, a participant was curious about examples of stakeholders who had been non-compliant with CBA requirements. Webb responded that in cases of non-compliance, many bad actors can get out of the CBA requirements by paying in lieu of specific performance. She also highlighted that even though government organizations like the Department of Energy (DOE) were thinking about durability, legal enforcement, and accountability, the costs associated with litigation and arbitration are monumental. Additionally, communities will face practical barriers and have limited capacity to challenge bad actors legally.

CONFRONTING GREENWASHING

Udu-gama continued the conversation by asking the fishbowl about how CBAs could better confront the reality of greenwashing by industrial stakeholders and what protections could be negotiated for communities. A participant from the Ohio River Valley commented that the lack of transparency frustrates all stakeholders, ranging from those in larger urban cities to those in small rural communities. The current opportunity can produce a shift in the system such that companies that have a history of permit violations do not get award funding. Wilson agreed and emphasized that this is the time to be proactive and to be able to do something different.

A participant from DOE’s Office of Energy Efficiency and Renewable Energy (EERE) added that the federal government was also thinking of ways of confronting greenwashing and building more trust by strengthening the efforts of subnational entities, like local governments and community agencies, within their communities. He discussed the Renewable Energy Siting through Technical Engagement and Planning Program (R-STEP), which is focused on awarding trusted state-based coalitions. His office found that many of these trusted partnerships were led by university extensions. In addition to enjoying the trust of community members, these university-led coalitions have the ability to convene a diverse group of stakeholders. DOE’s objective for the program is to enable

state-level coalitions led by these groups that eventually develop into technical assistance hubs. As stated on the agency’s website, the program expands the decision-making capacity and expertise of state and local governments around large-scale renewable energy planning, siting, and permitting.

USING NONDISCLOSURE AGREEMENTS

Building on the conversation of the previous panel (Chapter 4), an audience member asked the fishbowl to reflect on ensuring that nondisclosure agreements (NDAs) and CBAs do not become tools to silence or hamper community outreach. Several fishbowl participants contributed to the discussion that followed. The key takeaways were as follows: (1) NDAs are often necessary and legitimate tools to protect important information; however, developers must be willing to share details when the public’s ability to make an informed decision depends on the information; (2) the legal system, which includes the protections of an NDA, is not a panacea, and communities must use all the tools available to them, including Freedom of Information Act (FOIA) requests, to make an informed decision when information about a project is not easily available and accessible; and (3) communities must not think of NDAs as a resource that will protect them and preserve the community benefits that they seek from a project, but as a strategic tool that can be used by all stakeholders to protect project and organizational information as needed.

Webb added that pre-CBA agreements, like memorandums of understanding, can be useful for stakeholders. A workshop participant commented that this underscored the importance of good community and worker organizing and enshrining benefits for the community in an enforceable document. Another participant highlighted that provisions for third-party verification are another tool that builds trust with communities. It signals to them that the developer is willing to be held accountable by the community and any experts that the community may use for monitoring and verification.

EDUCATING COMMUNITIES

A participant from the Black Appalachian Coalition asked the fishbowl to reflect on effective ways to bring about community education and engagement. An audience member answered that the biggest challenges are around equity of awareness and access. In that participant’s view, many well-meaning community organizations are limited by their low levels of systemic support and organizational capacity, and their success at representing their communities is not assured. The participant noted that “being community-based, community-led, and community-centered mean different things.” The participant elaborated that organizations can be based in a community but not rooted in the people who live

there. Hence, they may be unable to truly speak for the community. Moreover, communities may not even need them. They could speak for themselves but may not have a seat at the table because of a lack of engagement. “The issue gets exacerbated when the community does not even know the table is being made until after the fact.” An ambidextrous approach that allows people to lead themselves can solve many of these challenges. The participant concluded that, “Until we begin to co-create with the people that we are solving for, we are going to waste a whole lot of national resources that could be better invested in things that are going to have greater outcomes.”

Another participant followed up on this discussion by asking the fishbowl to reflect on what could have the greatest impact along the value chain of community education and engagement. Answers included community education workshops and extra funding and grants as options for consideration. Another participant responded by adding that when there is an impactful moment for a community member to weigh in on decision-making, at most times, there is no meaningful acceptance of that opinion, and it may be ignored or overridden during the decision-making process. That participant stressed that meaningful engagement is critical and should include giving directly impacted residents the ability to make decisions. In most communities, members know and live with the impacts and do not suffer from a lack of knowledge or education. The lived experience of these community members must be central to all community benefits negotiations. Another participant added that this is a time for federal, state, and local governments to work together to use the lessons learned and develop model ordinances, CBAs, community benefits plans (CBPs), and a broader community benefits framework.

Another participant commented that logistical, economic, geographic, and infrastructure concerns often determine where a project is sited. While keeping those considerations in mind, empowering communities through education and engagement would mean that the script can be flipped. Through education and engagement, communities will know enough and have enough autonomy in decision-making to invite developers to their table. This would “fundamentally change the nature of waking up one day and finding in the newspaper that someone is going to be building X in your neighborhood, versus being excited to say we would like to invite proposals and community benefit propositions from X, Y, and Z.”

Education Through Information Sharing Between Communities

A program analyst at DOE’s Office of Fossil Energy and Carbon Management asked the fishbowl about the value of information sharing between communities and how federal, state, and local governments and other government institutions can facilitate the sharing process and reduce the associated burdens. A participant commented that DOE is enabling peer-to-peer information sharing

through the R-STEP program (see above). While the program is nascent, its objective is to ensure that once the information is established, it can be shared easily between communities.

Another workshop participant added that agencies must do more than consolidate information. They should evaluate the work that has been done and ensure that they are designing processes that are responsive to the community’s needs and empowering them. The government has provided a plethora of tools like EJScreen, wind and solar capacity maps, and information on poverty and economically distressed counties. These can be used to determine the communities that must no longer be overburdened. The participant concluded the panel by emphasizing that significant repair must happen before we ask more of these communities.

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