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Author: 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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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

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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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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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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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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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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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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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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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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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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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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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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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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

14
 

International Conference of the ISEEQS
Weitzman Institute of Science, Rehovot, Israel
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.


15
 

 
 
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