V. Building Stakeholder Processes

Collaborative processes are fundamental to the implementation of the new framework for environmental protection and enhancement in America envisioned by the Series. The Aspen Principles specifically provide that: "Inclusive, democratic and participatory processes should be used."

Stakeholder processes (as a collaborative venture) are a new and important aspect of governance in America. Indeed, they are an important supplement to representative government and to the proper exercise of legal and regulatory authorities. Properly structured, stakeholder processes can:

• enhance public participation;
• enrich the information basis for effective decision making;
• ensure greater accountability to workers and the community;
• ensure the ownership necessary for decisions to be honored and implemented; and
• sustain the democratic principles of our society.

Stakeholder processes have value in that they can yield benefits in time, cost, and closure (compared to the adversarial nature of current regulatory processes). Moreover, they can yield important benefits in terms of improved environmental performance. In the long run, the empowerment of local interests and institutions through stakeholder processes should help to find creative solutions and to harmonize national goals with local needs in a sustainable society.

A successful stakeholder process depends on many case-specific attributes, but all must exhibit mechanisms that build understanding and trust, facilitate participation and input, operate by mutually agreed upon rules, and gain a reasonable degree of closure.

The Aspen Series offers the following Considerations to guide stakeholder processes in the new framework for environmental management. These will be refined over time and enriched by actual experiences that are underway across the country.

Considerations for Stakeholder Processes
1. Each stakeholder process is designed to be open and inclusive. Participants in a stakeholder process are recruited from a wide base, with an "open door" admission policy; but following an appropriate period during which the stakeholder group is formed and organized, admission of new participants may be limited. A stakeholder group periodically evaluates the "appropriate balance" (i.e., fair and equitable balance of power between competing and sometimes conflicting interests) and representation of all applicable and relevant interests, and may adjust the membership as needed.

2. Each stakeholder process is convened as early as possible ("from the beginning") to enable the group to form and coalesce, and to define, agree upon, and effectively contribute to establishing the goals and objectives of the process.

3. Each stakeholder process is convened to address a specific matter, a specific issue, or a specific purpose. The initial purpose may evolve or change as stakeholder and applicant needs change through project development and implementation.

4. Each stakeholder process may be designed to be decisional, consultative, or advisory. For the intended purpose of the stakeholder process, there must be clear agreements on the roles and authorities to be vested in the parties to the process, and clear agreements on the responsibilities of, and the relationships between, all parties. The design of the stakeholder process follows the concept of "proportionality," i.e., the greater the amount of regulatory flexibility that is sought, the greater the weight placed on stakeholder views.

5. Legal obligations of elected governing bodies and of regulatory authorities must be reserved under law to provide for final decision authority and/or avenue of appeal. Such legal obligations generally cannot be delegated to stakeholder groups; therefore, stakeholder processes must incorporate such limitations at the onset. Those officials who are final decision authorities may participate in stakeholder processes so long as the integrity of the administrative record is preserved.

6. Each stakeholder process is governed by a set of operating ground rules developed and agreed upon by the participants, including a mechanism to build a common language, trust, and a commitment to respect the needs of all stakeholders.

7. Consensus methods of making decisions and reaching group closure are preferred, but each group may set its decision procedures to meet its own situational needs. Opportunities are provided for preserving minority viewpoints or "positions."

8. Each stakeholder process is illuminated by full transparency of information and full transparency of process to ensure openness and accountability of all participants.

9. Each stakeholder process seeks to ensure that "unrepresented interests" can receive consideration in the proceedings. "Unrepresented interests" may be future generations, other species, transnational parties, and even natural/ecological factors.

10. Each stakeholder process has a formal convener that initiates, supports, and sustains the formal process. The convener may be an applicant, a government authority, or a third party. The convener is expected to work in a collaborative manner with the participating stakeholders to arrange support as appropriate to enable effective stakeholder participation. Potential examples include:

• helping to defray costs to participate (travel, per diem)
• providing for logistics (e.g., meeting facilities, public notices, meeting minutes)
• arranging necessary meeting facilitators
• arranging and brokering "grants" to support technical assistance, information providers, experts, etc.
• arranging for the representation of certain "unrepresented interests" in the process.

The source of funding or resources provided to support the process and any terms governing their use is transparent.

11. Each decisional stakeholder process incorporates an agreement on the means to achieve closure so that binding decisions can be reached in a timely manner. Binding decisions are necessary to ensure certainty and predictability, and therefore to contribute to the full value of a stakeholder process. Closure may require the application of methods such as:

• alternative dispute resolution;
• science panels or groups of experts;
• "incremental closure" such that interim decisions can be made upon agreements to review and revisit at a later specific time;
• "conditional closure" now, but providing for reopeners based upon anticipated new science, new information, or monitoring of actual trends;
• "side-bar" or "off-line" negotiations of certain disputes while the main process proceeds;
• mechanisms to assure parties that decisions once made will be honored, and will hold for a specified period of time (for example, to minimize investment risk and to increase market certainty).

12. Each stakeholder process is guided by a set of specific agreements to assure the integrity of the process and safeguard the interests of all parties, for example:

• agreement to prevent conflicts of interest (e.g., antitrust considerations);
• agreement to prevent unfair competitor access to proprietary information and trade secrets;
• agreement to preserve legal rights (e.g., judicial review of record, right to sue for equities).

13. Each stakeholder process provides for a periodic review of its operations and effectiveness and provides for changes and reformatting as may be necessary to ensure the process remains viable. Stakeholder groups are encouraged to continue as needed through the implementation and evaluation stages.