Environmental Dispute Resolution Methods

There are a variety of methods for groups to resolve environmental disputes without recourse to litigation.  Alternative methods of resolving environmental conflicts have become generally accepted by the legal system and new dispute resolution methods are being developed continually.

Environmental stakeholders realize that well-organized, problem-solving gatherings help advance their self-interests.  The environmental dispute resolution movement includes a multitude of cases in which a broad range of divergent groups has succeeded in entering voluntary agreements.  Many have included performance standards by which parties have agreed to be bound.  Certain federal and state laws encourage and delineate consensus building efforts in environmental negotiations.

There are a number of questions that remain unresolved.  First, the relationship between the role of ad hoc bodies in environmental disputes and the formal regulatory authorities is not well established.  Secondly, the role of experts relative to the role of concerned citizens not formally represented in negotiations is not well defined.  Thirdly, there is a division between those environmental activists who refuse to mediate and instead relying on media campaigns and traditional legal solutions and those activists who willingly participate in the mediation negotiations.

Regulatory Laws
When new environmental laws are passed and administrative agencies promulgate implementing rules, the agencies are obligated to enforce their rules and are unable to transfer authority to ad hoc groups to establish performance and enforcement standards.  The agencies often ask affected and organized stakeholders to make recommendations consistent with the laws and regulations.  Agency staff often may draw upon their recommendations that have been arrived at by consensus.

Ad hoc consultations must be transparent and take place in open meetings.  Self-imposed constraints may be placed upon members of the regulated community.  The agencies may allow flexibility in the application of the regulations.
Environmental dispute resolution typically starts with cooperative fact finding.  All stakeholders and the agency normally agree on the experts who will advise them collectively.  The knowledge and skills of the experts are shared simultaneously with all the parties.  A facilitator acts as non-titled spokesperson who explains about the role of experts to citizens.  As a result, the technical experts function collaboratively instead of adversarily which they do in the litigation forum. 

Certain citizen advocacy assemblies do not participate in the mediation of environmental disputes.  Instead, they rely on media efforts, individual action and adversarial legal challenges to pursue their objectives.  Other advocacy groups and environmental agencies negotiate on a case by case basis.  For instance, the Environmental Protection Agency in certain cases recommends mediation.

In general, many activist groups decide whether to mediate or not depending upon the facts and the nature of the case.  When a key party does not participate in the mediation, then dispute resolution is futile.  In most cases, the key parties are willing to negotiate.  Because the result of each negotiation constitutes a proposed solution and the negotiations are transparent, non-participants have the right to state their case at the end of the negotiation.  In any case, the participants to a settlement negotiation reserve their rights to mount a court challenge in the event of an alleged fraud or omission or of a fundamental legal issue or constitutional question remaining unresolved.
Evolving Role of Environmental Mediation
Environmental mediation is a well-established segment of dispute resolution.  There is a variety of case studies, mediation techniques, and processes which may be considered.   Environmental mediation is becoming institutionalized at the federal level.   However, there are concerns that require review such as issues involving assimilation of environmental and citizens groups, protection of the public interest and balance of power.

Questions arising from an analysis of environmental mediation merit consideration.  Firstly, the evolving political environment, individual ethics and global issues are impacting the adoption and role of environmental mediation.  Secondly, recent cases reveal the pros and cons of environmental mediation and its functionality in a variety of environmental disputes.  Thirdly, there remains the question of the role of environmental planners in mediation of environmental disputes.

The environmental dispute resolution process has certain unresolved issues.  Is there precedential value in mediated solutions.  Should the practice of environmental mediation be regulated?  Does fairness necessitate that proxies should represent certain interests such as future generations?

1.   Precedential Value.  
The value of solving problems on a case by case basis is to permit stakeholders to work out the most efficient way of meeting performance standards stated in laws and regulations.  Also, another goal is to stop mandating the method of receiving expert opinions and other procedural details.  In other words, differing solutions may be appropriate in a given set of environmental problems.

Our traditional system law and regulation operates on the basis that similar situations should be handled in the same fashion in order to ensure fairness and consistency.  In a mediated negotiation, the question of whether procedural guarantees (such as all stakeholders' rights to participate in a mediated negotiation) are sufficient to ensure fair treatment is unclear.  At present, mediated hearings are not recorded in the same consistent way that legal decisions are.  Mediated solutions may not be cited with the same legal authority in subsequent similar cases.  There is one school of thought that fairness dictates that the results of environmental mediation should have precedential value.

2. Regulation of the mediators.
 There is a body of experienced environmental mediators in the U.S.  Certain states and federal agencies keep rosters of qualified mediators.  However, there is no body that certifies their qualifications.  The list of mediators includes a variety of levels of mediation experience and scientific qualifications.  The majority are lawyers and many have an environmental background.  One day, it will be essential to decide whether there is a minimum level of education, training and competence that should be required of a mediator in an environmental dispute.

3. Representation.
Very often, there are fluid, amorphous citizenry and community groups who are not formally represented in an environmental dispute resolution setting.  Of course, democracy is not perfect so that ad hoc processes to resolve environmental disputes should not be held to a higher standard of democracy and equality than other ordinary legislative or administrative affairs.  On the other hand, it is arguable that a system of selecting proxy representatives can be created and that would make the new environmental conflict resolution system fairer.
The requirements of environmental dispute resolution are as follows:  (a) organizing the interested parties;  (b)  describing the roles and duties of the parties; (c)  considering, reviewing and recommending in a transparent and efficient manner;  (d)  arriving at mutually acceptable recommendations and verifying the scope of agreement;  and (e) binding the parties to the commitments. 

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