Student Publications
Perry Lev-On and Miriam Lev-On
Title: Facilitated Processes for Avoiding and Resolving Environmental Conflicts: U.S. Experiences
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International Conference of the ISEEQS
Weitzman Institute of Science, Rehovot, Israel
May 30 June 1, 2005
Facilitated Processes for Avoiding and Resolving
Environmental Conflicts: U.S. Experiences
Perry Lev-On and Miriam Lev-On
The LEVON Group, LLC, California, USA
ABSTRACT
Processes that aim to help avoid
and/or resolve environmental
conflicts employ various
instruments that are designed to
provide an opportunity for all
affected parties to share their
comments, ask questions and exchange
information. For almost two decades
many formats of
consultative/facilitated processes
have emerged in the U.S. in an
attempt to lessen litigations and
reach consensus or consensus
recommendations. These processes are
aimed at facilitating
communication among diverse interest
groups and allow each interest group
to hear the
perspectives and concerns of other
interests and formulate ways to
alleviate these concerns and
resolve conflicts.
This paper will discuss the
emergence of such approaches that
endeavor to engage all major
stakeholders and their role in
environmental management practices
in the U.S. It will discuss the
legal framework for such instruments
and will provide some case study
examples discussing the
advantages, disadvantages and
lessons learned in each case. The
examples discussed will range
from the use of Consensus Building,
to facilitation of conflicts among
different departments of
the government, to legally binding
Regulatory Negotiations.
INTRODUCTION
"Lets go to Court" has been and too
often still is, a "battle cry" heard
coming out of corporate
boardrooms and the mouths of
concerned interest groups and
community representatives in the
U.S., particularly when the issues
of contention involve disputed
government environmental
regulations.
The complexity of the US government
regulatory process has increased
greatly over the past 35
years. The increased formalization
and complexity of the rulemaking
process has been
particularly notable in
environmental regulations where a
vast amount of new laws, under the
Clean Air Act, the Clean Water Act
and related statutes and regulations
have emerged since the
establishment of the US
Environmental Protection Agency
(EPA) in 1970. These developments
have promoted environmental
protection but have also had adverse
consequences, not the least of
which is heavy reliance on
litigation.
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International Conference of the
ISEEQS
Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
In centralized or closed systems
regulations are imposed while in
more open systems, businesses,
groups and concerned citizen groups
and individuals may comment on the
proposals in public
hearings, yet with little
possibility of making major
structural and functional
modifications to the
regulations. This process, while
well intentioned, often leaves
stakeholders feeling
disempowered and frustrated. They
may feel that they have a minimal
voice in designing the
regulations, standards and
provisions that must be obeyed, and,
as a result, compliance of these
regulations may be low, pushing
enforcement and punitive costs
higher, presenting a double-
edged sword.
Stakeholder reactions to top-down
regulatory developments can, and
many times do, have
negative implications. If penalties
are increased to discourage
noncompliance, businesses may
migrate into a "shadow economy,"
thereby fueling corruption, reducing
tax revenues and evading
the regulatory regime altogether. In
some instances civil society groups
aiming to modify or
eliminate imposed regulations pursue
lengthy and costly litigation in the
courts. Antagonistic and
adversarial relations between
regulatory agencies and the
regulated parties, as well as among
stakeholders with varying agendas,
may ensue, resulting in delays or
outright disregard for the
regulations intents. The lack of
effective and frank negotiations
between the regulators and the
regulated and between the various
stakeholders is usually blamed for
the emergence of
adversarial relationships that in
turn prevent participants from
focusing on creative solutions to
problems.
Several processes that aim to help
avoid and/or resolve environmental
conflicts exist. They
include Consensus Building;
facilitated processes such as
regulatory negotiations between
Government and Industry and between
different government departments;
Policy Dialogues;
Open-Ended Round Table discussions;
and Community Outreach (i.e.
Community Action Panels
or CAPs). Other processes available
are Mediation and Litigation.
The preferred way to resolve
environmental conflicts is through
negotiated settlements. In the
negotiation world stakeholders, may
they be corporations, industry
associations, private
businesses, interest groups or
government, should evaluate their
BATNA their "best alternative
to a negotiated agreement"1 and
assess it vs. a "walk-away" option.
When a "negotiation route"
has been decided upon, a Mutual
Gains Approach to negotiation should
be selected, preferably
utilizing a neutral Facilitator to
move matters along.
This presentation will address some
of the processes mentioned above,
their legal framework,
their advantages and disadvantages
and will introduce several
illustrative case studies.
LEGAL FRAMEWORK AND POLICY TOOLS
This section will briefly cover the
legal framework and policy tools of
different approaches that
are currently being used in the US.
They range from the formal creation
of a US Institute for
Environmental Conflict Resolution,
to the practice of Regulatory
Negotiations (Reg-Neg), to the
policy framework adopted by the US
EPA, known as the "Enlibra
Principles".
1 Fisher, Ury and Patton, Getting
to Yes: Negotiating Agreement
without Giving In, Penguin
Books, New York, 1998
2
International Conference of the
ISEEQS
Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
The Administrative Dispute
Resolution Acts
The federal government has enacted
ADR acts2 mandating federal agencies
to ensure that public
disputes in which they are involved
are settled as quickly and
effectively as possible, utilizing a
negotiated approach.
As a result of these legislations,
several federal agencies have
changed the ways in which they
deal with administrative and legal
challenges to their activities3 and
quite a number of states have
or are considering enacting parallel
legislation4.
In the past two decades many
Community Dispute Resolution Centers
have been established
throughout the US assisting local
officials, interest groups and
individual citizens to settle their
disputes through mediation and
negotiation.
Regulatory Negotiations
In the United States, negotiated
rulemaking became an officially
recommended approach to
develop new regulations by federal
government agencies in 1990 when
Congress passed the
Negotiated Rulemaking Act5. An
Executive Order issued by the White
House in September 1993
requires all federal agencies to
consider applying negotiated
rulemaking strategies in future
regulatory actions, thus reinforcing
the approach that has been used
informally by government
agencies since the 1970s. The
Department of Labor, the EPA, and
the Department of the Interior,
are its principal proponents, with
EPA being the most frequent user of
negotiated rulemaking by
far. Just between 1982 and 1995
there have been over 50 documented
cases of federally
negotiated rulemaking with many more
applications having been conducted
at the state level.
The alternative approach to the
traditional process of regulatory
formulation and implementation
is the negotiated rulemaking or
regulatory negotiation (Reg-Neg).
Negotiated rulemaking brings
together affected stakeholder groups
-- businesses, organizations, and
citizens -- with the relevant
government agency and a neutral
mediator or facilitator to build a
consensus on the features of a
new regulation before it is proposed
officially by the agency. Regulatory
provisions are
developed as a bottom-up
participatory process of
negotiation.
US Institute for Environmental
Conflict Resolution
The 1998 Environmental Policy and
Conflict Resolution Act6 created the
U.S. Institute for
Environmental Conflict Resolution
(ECR) to assist parties in resolving
environmental conflicts
around the country that involve
federal agencies or interests. The
Institute provides a neutral
2 P.L. 101-552 of 1990; P.L 102-354
of 1991 and P.L. 104-320 of 1996
3 Suskind, Babbit, and Segal, "When
ADR Becomes the Law: A Review of
Federal Practice", Negotiation
Journal 9
(1), 1993
4 Suskind, Levy, and Thomas-Larmer,
Negotiating Environmental
Agreements, Island Press,
Washington DC, 2000
5 U.S.Code, Title 5; sections
561-570
6 U.S.Code, Title 20; Chapter 66,
Sec. 5605 and 5607 (P.L. 105-156)
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Rehovot, Israel
May 30 June 1, 2005
place inside the federal government
(but outside of Washington DC) where
public and private
interests can reach common ground.
Its primary objectives are to:
Resolve federal environmental,
natural resources, and public lands
disputes in a timely and
constructive manner through assisted
negotiation and mediation;
Increase the appropriate use of
environmental conflict resolution
(ECR) in general and
improve the ability of federal
agencies and other interested
parties to engage in ECR
effectively;
Engage in and promote collaborative
problem solving and consensus
building during the
design and implementation of federal
environmental policies to prevent
and reduce the
incidence of future environmental
disputes.
The Institute is located in Tucson,
Arizona, and operates under the
aegis of the Morris K. Udall
Foundation. The institutes primary
mission is to assist the Federal
Government in providing
assessment, mediation, and other
related services to resolve
environmental disputes involving
agencies and instrumentalities of
the United States. It receives
direct congressional funding as
well as fees paid by public and
private sector clients. The
Institute offers expertise,
guidance, and
training in environmental conflict
assessment, facilitation, and
mediation. It maintains a network
of programs and practitioners around
the country who can be called upon
to assist in specific
projects.
Examples of environmental
regulations developed using
negotiated rulemaking in the United
States include:
Penalties for businesses for
noncompliance with the Clean Air
Act;
Exceptions for licensing pesticides
Performance standards for wood
burning stoves
Controls on volatile organic
chemical equipment leaks
Standards for transporting hazardous
wastes
Standards for chemicals used in
manufacturing wood furniture.
EPA's `Enlibra Principles'
The ,,Enlibra doctrine is an
approach to environmental
stewardship that was co-authored by
former Utah Governor and later EPA
Administrator Mike Leavitt and
former Governor John
Kitzhaber of Oregon7. The term
Enlibra comes from Latin and it
means, "move toward balance."
The ,,Enlibra approach is based on
the dual concepts of balance and
stewardship, and is built
upon principles of flexibility,
innovation, partnership and
collaboration. The philosophy
emphasizes collaboration instead of
polarization, national standards
with local solutions,
economic incentives instead of
mandates, solutions that transcend
political boundaries, and other
common sense ideas that can
contribute to acceleration of
environmental progress.
7
http://www.epa.gov/adminweb/administrator/enlibra.htm
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
These principles and a brief
description of their aims and
recommended approaches are provided
below:
National Standards, Neighborhood
Solutions - Assign
responsibilities at the right level
States and local governments have
the flexibility of developing their
own plans to achieve
national standards, and to provide
accountability, in addition to
federal mandates. Local plans
that consider ecological, economic,
social and political factors often
enjoy more public
support and involvement and
therefore can reach national
standards more efficiently and
effectively.
Collaboration, Not Polarization -
Use collaborative processes to break
down barriers and
find solutions
Environmental issues tend to be
highly polarizing, leading to
destructive battles that do not
further environmental goals. Goals
are best accomplished through
balanced, open,
transparent and inclusive approaches
at the ground level, where
stakeholders work together
to formulate critical issue
statements and develop solutions.
Reward Results, Not Programs -
Move to a performance-based, instead
of a process-based,
system
A clean and safe environment will
best be achieved when government
actions are focused on
outcomes, not programs and
processes, and when innovative
approaches to achieving desired
outcomes are rewarded.
Science For Facts, Process for
Priorities - Separate subjective
choices from objective data
gathering
Environmental science is complex and
uncertainties often exist. Competing
interests usually
point to data supporting their view
and ignore or attack conflicting or
insufficient
information. This results in
polarized positions, interferes with
reconciling the problems, and
may leave stakeholders in denial. A
much better approach is to reach
agreement on the
underlying facts as well as the
range of uncertainty surrounding the
issues before framing the
choices. A public, balanced and
inclusive collaborative process
needs to use respected
scientists and peer-reviewed
science. If agreement on scientific
facts cannot be reached,
decision-makers must evaluate the
differing information and make the
difficult policy
choices.
Markets Before Mandates - Pursue
economic incentives whenever
appropriate
Most individuals, businesses, and
institutions want to achieve desired
environmental
outcomes at the lowest cost to
themselves and society. Conversely;
many environmental
programs include mandates and threat
of legal action, fines and other
penalties that may not
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
always be efficient or cost-
effective. By contrast, market-based
approaches and economic
incentives often result in more
efficiency at less cost, and may
lead to less resistance and
more rapid compliance. These win-win
approaches reward environmental
performance,
promote economic health, encourage
innovation and increase trust among
all stakeholders.
Change a Heart, Change a Nation -
Environmental education and
understanding are crucial
Beginning with the nation's youth,
people need to understand the
importance of sustaining
and enhancing the natural world for
themselves and future generations.
Environmental
progress depends on citizens
understanding that a healthy
environment is critical to their
social and economic health.
Government needs to raise awareness
and educate people about
stewardship of natural resources.
Recognition of Benefits and Costs -
Make sure all decisions affecting
infrastructure,
development and environment are
fully informed
Environmental decisions should be
guided by an assessment of the true
costs and true
benefits of different options,
including life-cycle costs. These
assessments can illustrate
advantages of various methods of
achieving common public goals.
However, not all benefits
and costs are measured in dollars.
Non-economic factors, such as equity
within and across
generations need to include social,
legal, economic and political
factors.
Solutions Transcend Political
Boundaries - Use appropriate
geographic boundaries to
resolve problems
Many environmental challenges fall
within natural geographic locations,
but most cross
political boundaries. Focusing on
the natural boundaries of the
problem helps identify the
appropriate science, possible
markets, cross-border issues, and
the full range of affected
interests and governments that
should participate and facilitate
solutions. Voluntary interstate
strategies as well as other
partnerships are important tools as
well.
MUTUAL/JOINT GAINS APPROACH TO
NEGOTIATIONS
A high degree of skepticism prevails
among regulators and the regulated
public regarding
environmental negotiations. The
regulated do not believe that
regulators have any discretion in
enforcing the law and thus, they may
fear, any attempt on their behalf to
"negotiate" agreements
will be perceived as an attempt to
circumvent the law and might result
in adverse consequences
for them. The regulators on their
part believe too that they have very
little discretion in the matter
and therefore cannot budge and
negotiate.
The reality, however, is that well
structured negotiations can, and
often do, result in gains for all
parties concerned, may they be the
regulators, the regulated as well as
the community at large.
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
Process
The Mutual Gains Approach entails
four main stages: Preparation; Value
Creation; Value
Distribution and Follow Through.
Preparation: Each stakeholder must
estimate its BATNA, realistically,
and clarify its own
essential interests while at the
same time also assess the other
stakeholders BATNA and
interests. Each stakeholder should
formulate a mutually beneficial
proposal. Such proposal
should meet ones own interests while
also addressing the interests of the
other stakeholders.
Value Creation: During negotiations,
stakeholders should "separate
inventing from
committing"8. Each party should be
free to generate options, listen to
others, suspend
criticism, and not be held committed
to options generated until final
decisions are reached.
Value Distribution: Parties should
use objective criteria to explain
why they believe that their
recommended distribution of value is
fair to all parties involved. It
should be pointed out that
once all the "value" has been
distributed an agreement has been
reached.
Follow Through: After an agreement
has been reached, monitoring
procedures should be
established to verify compliance, a
dispute handling mechanism created,
and proper
communication channels between
stakeholders put in place to allow
for resolution of
potential conflicts in the future.
Advantages
In their book "Negotiating
Environmental Agreements", Suskind
at.al. point out the advantages
of a negotiated agreement for all
parties involved: "For the
regulator, an effective agreement
can
produce voluntary compliance that
goes beyond minimum standards
required or mandated by
law. For the regulated company, an
effective agreement can offer
flexibility in when and how
requirements must be met and the
opportunity to explain, face to
face, the financial and
commercial constraints on the
regulated industry. For the
community at large, agreements can
result in better environmental
performance and stronger commercial
enterprises, yielding
numerous benefits to the
community"9.
Disadvantages and Obstacles
Some stakeholders, particularly
environmental interest groups, feel
powerless when confronting
the government and/or powerful
corporations. They are painfully
aware that they are not capable
matching the economic resources and
the skilled personnel backing these
entities and are
therefore hesitant to enter into
negotiations. On the other end of
the scale, some corporate leaders
and public officials may be
concerned that willingness on their
part to enter into negotiations will
be perceived as a sign of weakness
and are, therefore, refusing to
negotiate.
8 Fisher, Ury, and Patton, 1998,
ibid
9 Suskind, Levy, and Thomas-Larmer,
2000, ibid
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International Conference of the
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
Another major obstacle to the Mutual
Gains Approach is opposition from
the legal field. Many
legal advisers discourage their
clients, may they be corporations or
interest groups, from
negotiating and, for obvious
reasons, advise them to take the
litigation route, contrary to the
best
interests of their clients who would
be better served by a settlement.
Overcoming Obstacles and
Making the Mutual Gains Approach
Work
The most effective means of
overcoming obstacles to the Mutual
Gains Approach and moving
the four stages of the process
forward is by utilizing the
assistance of a neutral facilitator.
A skilled facilitator, who gains the
trust of all stakeholders involved,
could play a pivotal role
and assist in all phases of the
process: The pre-negotiation phase -
meet with potential
stakeholders to assess interests,
handle logistics, draft protocols,
promote the setting of ground
rules etc.; The negotiation phase
manage and facilitate the
brainstorming process, suggest
possible trade-offs, help in
"binding" the parties to agreements
reached and more; The
implementation phase serve as the
monitor of implementation and the
convener of post-
negotiation stakeholder meetings to
handle and resolve possible post
implementation disputes.
CASE STUDIES
Case Study 1: Regulatory
Negotiations
Negotiated rulemaking is a fully
collaborative process in which all
interested groups are
convened in an "Advisory Committee."
Key issues and concerns are
identified, the interests of
all sides are compared and
contrasted, negotiations take place,
and hopefully, agreements based
on consensus are developed.
Background
The control of volatile organic
compounds and hazardous air
pollutants attributable to fugitive
equipment leaks from process
components in chemical manufacturing
facilities and refineries
has been a contentious issue in the
US throughout the 1980s. In late
1989 the US EPA convened
a Reg-Neg to address control of
these emissions. In addition to the
regulators, the US EPA, and
several trade associations, such as
the American Chemical Council (ACC)
and the American
Petroleum Institute (API), to name
just a few, represented industry.
The public sector was
represented by the Natural Resources
Defense Council (a national NGO) and
by representatives
of state and local air pollution
agencies.
Process
Negotiations aimed at developing
rules pursuant to the U.S. Clean Air
Act and addressed the
need to implement Maximum Achievable
Control Technology (MACT). The
Reg-Neg addressed
the control of emission of hazardous
air pollutants from equipment leaks
at synthetic organic
chemical plants. API was invited to
participate in this negotiations
because control of equipment
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
leaks at refineries is in many
respects similar to control of
equipment leaks at chemical plants
and API was advised that the
negotiated rule for chemical plants
(assuming the negotiations were
successful) would establish a
framework that would, subsequently,
likely be used in a similar
rule for refineries.
The equipment leaks negotiations
commenced in the fall of 1989 and
was conducted through
monthly meetings, each lasting 2-3
days, in which performance data were
exchanged, example
programs were presented and various
issues were brainstormed. The
negotiations were carried
out in plenary and in smaller
working groups. As part of the
process the facilitator also
included
"breaks" in the formal negotiations
to allow the various stakeholder
groups to caucus among
themselves and respond to various
proposals raised by the parties.
The monthly, in person, meetings
lasted for about a year and were
followed by additional
negotiations on the specific
consensus text of the agreement.
Consensus was reached and all
parties signed the agreement. The US
EPA incorporated this agreement into
a final rule on April
22, 1994, pursuant to the
stipulation of the Clean Air Act.
Also, as previously suggested, the
concepts adopted in this rule were
later included in a similar rule for
petroleum refineries.
Lessons Learned and Observations
A Reg-Neg process can be cumbersome
and resource intensive for all
involved. It is particularly
complicated when trade associations
are involved, because several
negotiations, including intra-
association negotiations, are
normally conducted, simultaneously,
during the process. For
example, at API, internal committees
are used to make decisions on
regulatory issues. These
committees are composed of
representatives from member
companies who, essentially, are
competitors. In all regulatory
matters, members need to report the
results of the negotiations to,
and have them approved by, their
respective companies before they can
agree on an API
consensus position.
While official representatives to
the negotiations are given some
latitude, there may be
significant limits placed on their
ability to negotiate because
proposals affect competitors within
the trade association differently.
Standards that one company can
easily achieve (for example,
because the company has controls
already in place as a result of more
stringent state
requirements) may be prohibitively
expensive for another company.
Also, the Reg-Neg involves intense
negotiations at which
representatives of state and federal
agencies, public interest
environmental groups, and perhaps
others, join industry
representatives.
Building enough trust among these
diverse groups to reach an agreement
is a long and a difficult
undertaking.
Potential Benefits and Pitfalls
EPA now uses a variety of rulemaking
processes and there probably is no
single best approach.
Reg-Neg can be an effective tool for
crafting creative solutions and
providing certainty. These
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Weitzman Institute of Science,
Rehovot, Israel
May 30 June 1, 2005
benefits are not always achieved,
however, and the Reg-Neg process
places considerable time
and resource demands on
participants.
A Reg-Neg is most likely to be
successful if issues are well
defined and participants are
carefully
selected. For example, issues that
are highly political are not good
Reg-Neg candidates and
should be avoided.
Case Study 2: Channel Islands
Marine Reserve Working Group
This is an example of a
"consensus-building" effort. It
required a facilitated process in
order to bring
the many federal and state
authorities to the table to reach
consensus on a common action plan.
Background
The Channel Islands National Marine
Sanctuary surrounds Channel Islands
National Park off the
coast of southern California10. The
Marine Reserve Working Group (MRWG)
was jointly sponsored
by the Channel Islands National
Marine Sanctuary and the California
Department of Fish and Game.
The sanctuary is managed by the
federal National Oceanic and
Atmospheric Administration
(NOAA). The Channel Islands National
Park in and of itself is a unit of
the National Park Service
(also a Federal entity), while the
fisheries within the state waters of
the sanctuary are managed by the
California Department of Fish and
Game. In addition to all these
agencies, stakeholders also included
the National Marine Fisheries
Service, and representatives of
environmental organizations; as well
as
consumptive and non-consumptive
recreational and commercial
interests.
Process
The groups purpose was to consider
the establishment of marine reserves
within the sanctuary.
Participants tried to balance marine
ecosystem protection values with
commercial and recreational
fishing and diving uses. The
collaborative group effort was
initiated before the start of the
environmental analysis process.
The group met for nearly two years
participating in joint fact-finding
and trying to reach a consensus
decision on marine reserves.
Facilitators were selected by the
sponsoring agency rather than by the
participants themselves. The neutral
facilitators engaged in considerable
communications in-between
meeting and engaged in "shuttle
diplomacy" between and among groups.
The U.S. Institute for
Environmental Conflict Resolution
was involved as an institutional
broker among the agencies and
with the contracted neutral
facilitators.
The group reached agreement on a
problem statement, goals and
objectives, and on implementation
strategies. They worked on
developing alternatives and
assessing their economic and
environmental
impacts. The group did not reach
full consensus on a comprehensive
recommendation regarding
marine reserves. However, they did
reach agreement on about 85% of the
proposed locations and
10 David Emerson and Jo Reyer,
Case Study Reports, U.S.
Institute for Environmental Conflict
Resolution, April
2004
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May 30 June 1, 2005
sizes of a network of marine
reserves within the sanctuary. They
also reached agreements regarding
monitoring approaches and
recommendations for implementation.
Lessons Learned and Observations
The process resulted in a more
informed and higher quality
decisions that attempted to achieve
environmental benefits while
minimizing negative economic and
social impacts. Early on, the
working group developed a problem
statement that captured the current
disharmony in the situation,
and stated a desire to restore the
integrity and resilience of impaired
ecosystems. The group
attempted to find ways to achieve
ecosystem goals without unduly
impacting any single interest
group. Proposals were generated that
responded to a multitude of
interests rather than more narrow or
limited interests.
Goals and objectives for the working
group included enhancing long-term
ecosystem productivity,
achieving sustainable fisheries, and
maintaining long-term socioeconomic
viability while minimizing
short-term socioeconomic losses to
all users and dependent parties. The
working group discussed the
historic conditions of the ecosystem
and the people who used it, and
talked about how they wanted
future generations to share the same
experiences that they had known.
A very positive outcome of the
process was that the personal
responsibility for the environment
taken
on by participants, spread to others
in the groups they represented. The
working group was very
aware of the importance of their
decisions to the Channel Islands
marine environment. They sought
to foster stewardship by providing
educational opportunities and
linking monitoring and research and
developed a better understanding of
both the substance and process of
marine resource policy
making.
There was a strong awareness of
practicality within the working
group. Along with the substance of a
decision, how it would be
implemented was a major focus, as
evidenced by the groups
recommendations that a system be
established for effective monitoring
and that an interagency
Memorandum of Understanding (MOU) be
developed to address enforcement
requirements.
It should also be noted how the use
of science enhanced the process: An
existing University of
California/Santa Barbara research
group of 12 scientists agreed to
serve as a Science Panel for this
effort at no cost to the working
group or the participating agencies.
A Socioeconomic Team was also
used, made up of NOAA economists
along with contracted local social
scientists and economists.
While both the Science Panel and the
Socioeconomic Team contributed
valuable information to the
working group, it must be emphasized
that when using scientific advisory
panels, it is important to
be clear about roles,
responsibilities and relationships
between technical experts and
stakeholder
advisory groups.
Potential Benefits and Pitfalls
The Sanctuary Advisory Council was
committed to passing on the working
groups agreements
essentially intact to the Sanctuary
management, and the decision-making
agencies were committed to
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May 30 June 1, 2005
adopting the groups consensus
recommendations. When full consensus
was not reached, items of
agreement and disagreement were
passed on to the Sanctuary Advisory
Council.
The group did improve productive
working relationships and generated
a significant knowledge base
relevant to scientists, decision
makers, resource users, interested
stakeholders, and the public.
Although the group did not reach
full consensus on a proposal for
marine reserves, the issues in
dispute were narrowed.
Due to the lack of final consensus
on all the points, some participants
returned to their original
positions on issues and litigated
the eventual decisions by the state
agency.
Case Study 3: Collaborative
Environmental and Transportation
Agreement
Streamlining
This case study provides an example
of a consensus framework that served
as the basis for
interagency deliberations and that
helped in expediting the assessment
of new transportation
projects within the context of
environmental laws and regulations.
Background
The Collaborative Environmental and
Transportation Agreement for
Streamlining (CETAS)
Group, formed in June 2000,
committed to promoting environmental
stewardship while
providing for a safe and efficient
transportation system in the State
of Oregon.
State transportation agencies
normally scope projects to determine
if they require a formal
environmental
impact assessment. Participating
agencies include the Federal and
State Departments of
Transportation, as well as a variety
of other State and Federal agencies,
including resource
agencies such as the Bureau of Land
Management, the Fish and Wildlife
Service and Oregon
Department of Environmental Quality.
At monthly meetings, agencies
receive project briefings
and concur on purpose and need,
range of alternatives, criteria for
selection, and preferred
alternative. Once concurrence is
reached, issues are not revisited
unless major project changes or
new environmental requirements
become effective.
Process
The Oregon Department of
Transportation has decided to
streamline efforts for minor
transportation projects by focusing
on broadening the use of framework
agreements with the
respective agencies in the areas of
wetlands protection and endangered
species habitat protection.
Once a programmatic agreement is in
place, it can be applied to elements
of larger projects as
well.
Transportation and resource agencies
have engaged jointly in
environmental assessments and
through regular working group
meetings have fostered relationships
built on trust. Decision-
making is by consensus. Elevation to
the next level of decision-makers
within the agencies
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International Conference of the
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Weitzman Institute of Science,
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May 30 June 1, 2005
occurs on the rare occasion when
consensus is not reached. The Oregon
Department of
Transportation (ODOT) that convened
and led the meetings facilitated the
group.
The purpose of the meetings was to
get early involvement by all
agencies and accelerate the
process by avoiding agency conflicts
and subsequent permit delays during
final design, thus
allowing projects to be completed in
budget and on time. One of the main
obstacles that had to
be overcome was the availability of
staff resources to coordinate this
activity.
Lessons Learned and Observations
The process allows agencies in
Oregon to expand the state's
environmental goals and guidelines.
As a result, Oregon transportation
agencies are mapping natural and
cultural resources, balancing
interests by implementing a habitat
mitigation program, improving
partnerships with resource
agencies, instituting an
environmental management system, and
developing a seamless
transportation development process
with local partners and contractors.
The resulting cultural changes in
the transportation agencies from
this program are expected to
last over time, benefiting future
generations environmentally and
economically. The parties have
demonstrated their commitment by
good attendance and participation in
meetings, and by
suggesting issues for working out
programmatic agreements.
Information dissemination occurs
through consultations between agency
participants and peers
within their respective agencies,
although indications are that there
is always still room for
improvement in this aspect.
Potential Benefits and Pitfalls
This process covers the range of
issues beginning with purpose and
need, continuing through
alternatives, criteria for selection
of a preferred alternative, and
identification of the preferred
alternative. Beginning with purpose
and need is a key point in the
success of the project. So far
in the process, there has been one
example of the group not being able
to reach consensus, and
this was on identification of a
preferred alternative. The group had
agreed on criteria for
selection, but thought that it would
lead to a different outcome.
Operating under a formal agreement
gives the group credibility and
helps ensure that the process
continues. Members are designated in
the agreement by position, with
changes occurring when
agency representatives move on and
are replaced by a different
employee. This results in some
"catch-up time" for the new member,
but so far new members have been
well briefed by their
outgoing counterparts.
Operating by consensus works well
for the group with the one exception
already mentioned. For
this disagreement, an elevation
process was developed whereby the
next level of decision-
makers within the agency attempts to
reach consensus, a process that will
now be used in the
future if lack of consensus will
occur again.
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May 30 June 1, 2005
SUMMARY
Advocates, policy makers, and
adjudicators are increasingly
looking for ways to improve
environmental decisions. The use of
strategies based on "Mutual/Joint
Gains" problem solving,
mediation, facilitation, and
consensus-building offer promise for
certain cases. While these
approaches should not be viewed as a
panacea, hundreds of significant
cases involving public
health, public lands, and natural
resource issues have been
successfully mediated or facilitated
to
date. These include "upstream" cases
when rules and policies are being
made and "downstream"
issues when parties are involved in
enforcement, compliance, and
litigation. Thousands more
cases could be wisely and amicably
resolved if good scientific and
technical information were
properly integrated into the search
for solutions.
In environmental disputes, high
Suggestions for Tackling
Scientific Issues in Negotiations
quality information almost always
1. Integrate science issues into the
conflict assessment
forms the foundation and backbone
for
2. Help coach the parties on the
different approaches that
good deliberations and problem
might be used to resolve
information-intensive issues.
3. Explore individual BATNAs to deal
with the way in which
solving. How such information comes
each party will deal with science
uncertainty if there is no
into the process, is used by the
parties,
agreement.
and is threaded into solutions is
4. Promote dynamic, heuristic, and
adaptive agreements that balance
critically important. Too often it
is an
reasonable stability (which is
needed for business assurance) with
afterthought to the economics and
flexibility, plasticity, and
performance-based adaptability
(which is
needed for environmental assurance).
politics of deal making. In many
cases,
5. Insure access to all information
by all participants
critical uncertainties are not well
6. Get the parties to jointly decide
what is "adequate" information.
addressed by anyone. In other cases,
7. Lead the disputants through a
process of finding and bringing to
the
millions of dollars are spent in
table the information they need.
irrelevant or un-usable research.
And
8. Get the parties to identify the
experts they need to illuminate the
state of available information.
finally, agreements that could be
9. Create (or sometimes separate the
parties into) sidebar forums that
forged often fail to be reached
because
allow the scientists to disagree in
a "safe" setting away from lawyers
and
of "warring" scientists who are
swept
clients.
into the inherent "side taking" of
10. Work carefully with the parties
to frame the questions that the
adversarial litigation. Therefore,
for
scientific and technical people will
need to answer.
11. Get agreement on the criteria
that will jointly be needed to
select impartial
"Mutual/Joint gains" strategies to
be
experts.
effective one must develop powerful
12. Use an expert to help you
facilitate discussions.
and purposeful approaches for
13. Choreograph the translation
process to help the group understand
the
gathering, sorting, and integrating
scientists and vice versa.
scientific information. A suggested
list
14. Help the technical people
translate their information and
knowledge to lay
and public audiences.
of strategies that may be used for
15. Help technical people translate
information in plain language and
tackling scientific issues during
using good visuals so that
participants can understand the
issues, the
negotiations is offered in the box
to
data, and the uncertainties
the right.11
16. Help bridge between the science
and the problem at hand by focusing
the scientific questions so the
information is germane for decision-
making.
11 Adler, Barrett, Bean, Birkhoff
and Rudin, Mana ging Scientific
and Technical Information in
Environmental
Cases, U.S. Institute for
Environmental Conflict Resolution,
June 1999
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May 30 June 1, 2005
Despite some difficulties, the
experience with negotiated
rulemaking in the United States has
produced several benefits:
While negotiated rulemaking takes
more time and effort upfront than
traditional modes of
developing regulations, all
stakeholders, including government
agencies, are more
satisfied with the results.
Participants find that with a
negotiated process, the resulting
regulations tend not to be
challenged in court. (in contrast,
about 80% of all EPA regulations
have been challenged
in court and about 30% have been
changed as a result.)
Less time, money and effort are
expended on enforcing the
regulations
Final regulations are technically
more accurate and clear to everyone
Final regulations can be implemented
earlier and with a higher compliance
rate
More cooperative relationships are
established between the agency and
the regulated
parties.
The Consensus Building process, in
most instances, proves to result in:
A more informed and higher quality
decisions.
Assumed "ownership" of the decisions
reached by all parties involved.
Focus on the implementation of the
decisions reached utilizing MOU.
For as long as different
stakeholders, each with its own
"purpose of being" and with its
particular
agenda, will exist there will be
conflicting interests. It is best
for all stakeholders, and especially
for future generations, that these
conflicts are, if possible, avoided,
or when they surface, be
effectively, fairly and amicably
dealt with and resolved. The
approaches and methods presented
above aim to do just that.
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