Alternative Dispute Resolution Committee Newsletter Vol. 11, No. 1 LETTER FROM THE ADR COMMITTEE CO-CHAIRS Pamela Esterman and Joseph Siegel It is with great pleasure that we welcome you to the 2014–2015 ABA year. We are honored to be serving as co-chairs of the Alternative Dispute Resolution (ADR) Committee. As incoming chairs, we are energized about the work of the ADR Committee and the outstanding team of vice chairs who have volunteered their time and expertise. We would also like to thank the outgoing committee vice chairs for their service, and in particular express our appreciation to David Batson and Dan Dozier, who served as chairs of the committee for the past two years. We are pleased to present this first ADR Committee Newsletter of the new ABA year and express our gratitude to our newsletter vice chairs, Michele Straube and Shawn Grindstaff, who have reinvigorated our committee newsletter by both producing this issue and making plans for subsequent issues. We also would like to express our appreciation to the authors whose work appears in this issue.
December 2014 and resolution techniques in the environmental, energy, and resource fields. In addition to the newsletter, our committee also has a webpage, committee listserv, and LinkedIn page. Through these resources, the committee hopes to deliver timely and useful information to our members. Lastly, we want to remind our committee members that the 44th Annual Conference on Environmental Law will take place in San Francisco, California, on March 26–28, 2015. The ADR Committee is collaborating with the Superfund Committee to put on a panel at that conference. The next issue of the newsletter will be devoted to dispute resolution issues in the Superfund context. If you would like to contribute to the next newsletter, please contact our newsletter vice chairs, Michele or Shawn. If you would like more information about the committee, please don’t hesitate to contact us or any of the committee vice chairs. Pamela Esterman and Joseph Siegel Committee Co-Chairs Visit the committee webpage: www.ambar.org/EnvironCommittees
The ADR Committee involves itself with all aspects of alternative dispute resolution, conflict prevention and resolution, and collaboration as the field affects environmental, energy, and resource issues. Our primary goal is the development and dissemination of information on practical applications for ADR and conflict prevention Alternative Dispute Resolution Committee, December 2014
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Alternative Dispute Resolution Committee Newsletter Vol. 11, No. 1, December 2014 Michele Straube and Shawn Grindstaff, Editors In this Issue: Letter from the ADR Committee Co-Chairs Pamela Esterman and Joseph Siegel..........................................1 Recent Successes in Environmental Mediation Lester J. Levy ...........................................3 Resolving Land Use Disputes Courtney A. Kaylor .................................5 Resolving Increased Climate Change Impacts—Mediating Storm Water Runoff Disputes Chris Kane ...............................................8 What’s Different About Facilitating Collaborative Efforts to Build Resilience to Climate Change? Joseph Siegel and Elissa Tonkin ..........11 Suggestions for Expanding the Use of Environmental Dispute Resolution In Utah and Beyond Michele Straube ...................................14
AMERICAN BAR ASSOCIATION
SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES CALENDAR OF SECTION EVENTS December 17, 2014 Anatomy of a Suspension/Debarment Case in Federal Contracting: Strategies and Practice for Effective Resolution Primary Sponsor: Section of Public Contract Law January 23-25, 2015 Winter Council Meeting Dana Point, CA March 4, 2015 Key Environmental Issues in U.S. Environmental Protection Agency Region 4 Georgia State Bar Conference Center Atlanta, GA March 26-28, 2015 44th Spring Conference: The ABA Superconference on Environmental Law The Palace Hotel San Francisco, CA April 15-17, 2015 Section of Litigation’s Annual Conference New Orleans, LA Primary Sponsor: Section of Litigation April 16-17, 2015 ABA Petroleum Marketing Attorneys’ Meeting The Loews Madison Hotel Washington, DC
Copyright © 2014. American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Send requests to Manager, Copyrights and Licensing, at the ABA, by way of www.americanbar.org/reprint. Any opinions expressed are those of the contributors and shall not be construed to represent the policies of the American Bar Association or the Section of Environment, Energy, and Resources.
Alternative Dispute Resolution Committee, December 2014
June 3, 2015 33rd Water Law Conference Denver, CO
For full details, please visit www.ambar.org/EnvironCalendar 2
RECENT SUCCESSES IN ENVIRONMENTAL MEDIATION Lester J. Levy In environmental cleanup and mass tort cases, mediation has proven its effectiveness in meeting the parties’ tactical and substantive goals. Lawyers, clients, and regulators extract themselves from often rigid and time-consuming litigation procedures and turn to alternative dispute resolution (ADR) to allocate costs, risks, and benefits among all parties. The results of these efforts can be dramatically superior to those that would have been produced through standard litigation means because each case can resolve on a more adaptive, sagacious, and equitable basis. This article will explore the advantages of using mediation and other ADR allocation procedures in environmental cases, both pre- and post-settlement, and will discuss some innovative approaches that have been used to date. Pre-settlement environmental mediation is commonly utilized as an alternative or adjunct to traditional federal or state court litigation. Mediation outcomes are not limited to any one statutory scheme. Mediation has fewer technical and tactical delays than traditional litigation because its progress is driven entirely by the parties themselves. The Environmental Protection Agency, the Department of Justice, and their state counterpart agencies can join in the mediated discussions, at the discretion of the parties, even if they are not formally made parties to the case. Since most environmental cases cannot fully settle without approval from one or more regulatory agency, direct input from such governmental agencies can inform the mediating parties about which aspects of the settlement will or will not be approved, thereby avoiding delays in obtaining regulatory approval and in implementing the settlement itself. In appropriate cases, potential penalties can be mitigated through promises to implement projects with positive environmental impacts. Further, mediation does not normally generate the same disproportionate transaction 3
costs that are incurred in traditional litigation. Indeed, in large-scale environmental litigation, transaction costs can often equal or exceed the expenditures for site study and remediation. The mediation process is inherently flexible such that it can address efficiently all case-specific areas of concern. For example, in one recent Superfund case, the mediation was structured to address sequentially multiple overlapping plumes of groundwater contamination. Mediation sessions were further structured to resolve party-specific insurance issues, thereby facilitating insurer contributions to negotiated solutions. Where helpful, intra-insurer sessions were also held to allocate contributions from multiple policies and carriers. Moreover, agencies with regulatory oversight were invited into the mediation at key points to share their views about contemplated cleanup methodologies. With this “real-time” regulatory input in hand, the parties were confident that their agreements would likely receive regulatory approval. The parties also utilized a scientific professional in a neutral capacity to assess and help mediate the scientific issues presented. In many cases, the interpretation of scientific data is critical to the allocation of responsibility for investigation and cleanup costs. These data are used to ascertain the type and extent of the contamination at issue, to assess relative fault among the parties, and can provide a basis for allocating responsibility for cleaning up the site. An environmental consultant or scientist—with no ties to any of the parties— was retained to supplement the legal expertise of the mediator. Such a neutral consultant can take on a number of different roles depending on the needs of the case. In this case, the scientific neutral was retained jointly by the parties to assist the “legal” neutral in assessing the parties’ competing scientific models for apportioning fault and allocating costs and then advise the parties and the “legal” neutral on each model’s strengths and weaknesses. The neutral consultant added significant value by joining the “legal” neutral in meetings with the parties’ technical experts.
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Together, the mediators and the experts reached important consensuses, supported by the scientific evidence presented, which formed the bases for the settlement and the allocation of proposed remedial costs and actions. The allocation of post-settlement proceeds in environmental mass tort cases, particularly those in which the settlement provides for an aggregate sum to be distributed among multiple plaintiffs, is also well suited to ADR. Settlements of this kind can involve thousands of individual claimants, all seeking their fair share of the settlement proceeds. A properly designed and implemented ADR process can determine (1) who will receive the benefits of the comprehensive settlement, (2) how much each of these individuals will receive, and (3) what criteria will be used to make these determinations. All this can be achieved in a supervised process that ensures consistency in review, determination, and payment. An oil refinery case illustrates this point. An accident caused a 16-day airborne release of an allegedly toxic chemical used in the refinery process. Changes in the prevailing wind direction over the release period caused the chemicals to impact several different towns surrounding the refinery before the leak was repaired. More than 10,000 thousand people who lived or worked in the impacted area filed claims in mass tort and class action lawsuits. A mediated settlement was negotiated that created an $80 million fund for those affected. In order to find a process to fairly and efficiently distribute that fund among the clients with different degrees of exposure and symptoms of injury, the parties again turned to ADR. The mediator, attorneys, and parties worked together to create a process that broadly included three payment options: (1) automatic payment, (2) payment to those that were seriously injured, and (3) payment to those with mid-level injuries. For the first category—automatic payment—the plume of contamination was superimposed onto a street map of the impacted area. The settlement
master then dispersed uniform payments to eligible claimants based on their locations within the “geocoded” area. Those individuals needed only to complete an election form with simple verification of their location during the period of release to receive payment. Claimants who filed for the second category of relief—serious injury claims—were required to submit medical records and a short memorandum outlining the injuries allegedly caused by the release. Serious injury claimants individually attended abbreviated hearings before a small group of designated hearing officers. The awards to these claimants were case-specific, based on the evidence presented. This process provided a forum for the more seriously injured class members to present their case and to be heard. For the third category—mid-level claims— individuals were required to submit their medical records along with a short briefing. Determinations were made for these claimants on the papers without hearings. Their compensation was also awarded on a case-by-case basis. The awards of these claimants were lower than the awards for the seriously injured claimants, but higher than the awards for claimants who filed automatic payments claims. Thus, the process was designed to correspond to the severity of injury alleged, the degree of proof required for each tier of recovery, and the share of settlement proceeds that each category of claimant could seek. In this way, claimants and their lawyers could choose the recovery category appropriate for that client. As a result of this process, 95 percent of the funds were awarded and disbursed to the claimants within three to twelve months. More than 1200 serious injury hearings were held in this time frame, and $6 million in invalid claims were eliminated. This tiered approach to allocation was successful for a variety of reasons. First, claimants were part of the process; they were able to self-select
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into the damages category that they believed best fit their situation. As a result, few claimants challenged their allocated share of the aggregate award because they believed they were entitled to more of the proceeds or because they believed that the allocation formula impermissibly disfavored them. Second, because the allocation process was transparent, and because it provided a forum for injured claimants to be heard, claimants viewed the process as equitable, just, and fair, which avoided the myriad of conflict-of-interest issues that mass tort settlements frequently raise. Finally, under this approach, funds were dispensed to claimants both quickly and cost-effectively. Claimants, therefore, were able to swiftly appreciate the benefit of their compensation. Claimants also knew that the fund for distribution was not being drained by excessive costs and transaction fees. The benefit of this process to defendants was also apparent. Defendants were able to create the fund and then remove themselves from the process of allocation, leaving it to the mediator to design an approach that would fairly compensate the full spectrum of injured claimants with the $80 million fund that they had created. None of this likely would have happened through traditional litigation procedures. Mediation, unlike formal litigation, allows parties and counsel in environmental suits to thoughtfully and equitably design precise, cost-effective, and efficient allocation schemes that assign the benefits and burdens to claimants and defendants, respectively. Each process can be tailored for each unique situation, and none is exactly the same. This type of flexible, creative approach is what makes ADR especially suitable to these kinds of cases. Lester Levy is a founding member of JAMS, a national and international provider of ADR services. He is the former managing director of JAMS’s Environmental Dispute Resolution Practice and its Class Action and Mass Tort Adjudication Program. Mr. Levy is often called upon to design and implement coordinated processes to mediate complex environmental disputes.
RESOLVING LAND USE DISPUTES Courtney A. Kaylor Should the city you live in build a new sports stadium? Where should a county locate its sewage treatment plant? Can the developer of the vacant property in your neighborhood cut down those beautiful old trees? Can your neighbor rent out his house as a vacation home? Large and small, land use disputes permeate our lives. They affect us personally and individually. They may also have city- or statewide economic implications. Some of us value private property rights and believe an owner should be able to do what he wants on his own land. Others of us believe land use should be heavily regulated for the common good. Most of us fall somewhere in between these two extremes. When we disagree about how land should be used, our first instinct is usually to stake out our positions and defend them. We call the city to complain about the neighbor’s illicit “in law” unit that adds noisy tenants and reduces parking in our neighborhood. We hire lawyers to argue in court about whether major projects have been properly reviewed and approved. We lobby our elected officials to adopt more—or less—restrictive regulations. Ultimately, after lengthy proceedings—often lasting years—and significant cost, a judge decides what development can occur. This decision is based on the constraints imposed by the law and the facts presented to the court, not necessarily on what is best for any of the parties or the community. This article suggests a different approach instead: try mediation. Mediation is a valuable, but often overlooked, “tool in the toolbox” of land use and environmental attorneys, providing an avenue for clients to
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achieve their goals—or at least results they can accept—in a cost-efficient and timely way. Mediation is a voluntary process in which parties in dispute meet with a neutral third party to resolve their conflict. The mediator does not dictate a result but facilitates the negotiations of the parties to assist them to achieve their own mutually agreeable solution. A hallmark of mediation is that it is a confidential process. Confidentiality allows the parties to consider and discuss potential compromises in a safe forum without undermining their publicly stated positions. State laws and court rules governing mediation vary but generally provide some protection for mediation communications. The Uniform Mediation Act (UMA), which has been adopted by 12 states to date, provides that mediation communications are confidential to the extent agreed by the parties or required by other state law. See http://www.uniformlaws.org. Mediation communications are also as a general rule privileged, and not subject to discovery or admissible in court, with some exceptions. Mediation provides a structured process that brings the parties together for direct, focused discussions without outside distractions. Discussions at the outset of a dispute can forestall its further development. In a surprising number of neighbor disputes, the parties do not communicate with each other before filing complaints or taking other legal action. Even after a dispute is in full swing, mediated discussion provides an opportunity for timely and cost efficient resolution. The mediator facilitates communication and agreement between the parties. The mediator is in a better position to do this than the parties’ attorneys, who act in an advocacy role. The mediator’s neutral status also differs from that of government officials. These officials may attempt to resolve differences between parties with varying interests but ultimately must take sides when they take code enforcement action or issue or deny a permit.
The mediator may also encourage settlement by helping the parties identify their best (or worst) alternative to a negotiated agreement based on the merits of the case and the time frame and cost of litigation. Educated questions by a neutral third party that draw out the relative merits of the parties’ legal positions, or cause the parties to contemplate the time, cost, and aggravation associated with litigation, often motivate parties to consider settlement. In addition to addressing the immediate conflict, the mediation process can create improved communication and better relationships between the parties, which in turn decreases the likelihood of future disputes. This can be particularly significant in land use cases involving parties who will continue to live or own property near each other in the future. There are several constraints on government action that must be taken into account in land use mediation involving a government permit or other government action. State laws on open public meetings (sometimes known as “sunshine laws”) generally require that government decision-making bodies conduct business only in public open meetings and prohibit them from discussing and making decisions on pending matters in private. The UMA recognizes this potential conflict and provides that communications are not privileged if they are made during a mediation session that is open, or is required by law to be open, to the public. In addition, under many state laws on public records, government records are subject to disclosure to the public. The UMA provides that mediation records are not privileged if they are subject to disclosure under the state’s public records law. Legal requirements relating to the impartiality of quasi-judicial decision makers may prevent government decision makers acting as judges (city or county councils or hearing examiners) from
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communicating with third parties about the matter in private. This requirement may prevent government decision makers from participating directly in mediation. Instead, a settlement agreement may be made by a government staff person contingent on later formal approval by the appropriate governmental body, which cannot be guaranteed. The land use permitting process includes numerous additional procedural and substantive requirements. These vary widely by state and by the type of permit in question but typically include procedures for public notice and appeal of land use decisions. In a number of cases, courts have held that a mediated agreement cannot circumvent these otherwise required land use approval processes. A settlement agreement that purports to do so is subject to invalidation by the court. See, e.g., League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052 (9th Cir. 2007). In light of these requirements, settlement agreements in land use matters are often contingent on future discretionary government approvals. For example, the parties may agree that the applicant will seek a permit for a development project with certain characteristics and mitigation measures. If the permit is granted and not appealed, or if an appeal is resolved favorably to the project, then the settlement has been successfully implemented.
While land use cases present some unique considerations that must be taken into account in the mediation process, their fundamental characteristics— disagreement between individuals about things that affect them significantly and personally—make them well suited to resolution through mediation. A mediator can be found to fit any dispute. Mediators range in background—some are retired judges, some lawyers, and some come from other professions. Their approaches to mediation also differ. The cost of mediation varies, with some mediators charging the same rates as experienced attorneys, and some providing services on a sliding scale or volunteer basis through nonprofit organizations. Parties can select a mediator who they believe will be best suited to their situation. Mediation is not a silver bullet. Some fights need to be fought. But in many cases it can yield a better result for all parties, at far less cost, and in far less time, resulting in satisfied clients. Courtney A. Kaylor is a partner with the Seattle firm McCullough Hill Leary PS, where she practices land use law and serves as a mediator. She is chair of the Washington State Bar Association ADR Section’s Land Use and Environmental Mediation Committee and a board member of the Washington Mediation Association.
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The 33rd Water Law Conference will examine emerging water issues that are important to the Mountain West and take a much broader look at water issues in the law, from water quality considerations to new sources of water supply to federal law issues to recent developments in all the states, East to West. The Water Law Conference has a long tradition of providing balanced examinations of contemporary developments in the law of water to lawyers in many capacities whose practice areas involve water.
Alternative Dispute Resolution Committee, December 2014
RESOLVING INCREASED CLIMATE CHANGE IMPACTS—MEDIATING STORM WATER RUNOFF DISPUTES Chris Kane The recently published Climate Change Impacts in the United States: The Third National Climate Assessment (http://nca2014.globalchange.gov/ report/regions/northeast) reports on the climate change impacts that we are already experiencing. In the Northeast as one example, the precipitation has increased five inches in a little more than the last 100 years. In addition, the region has experienced a 70 percent increase in the intensity of precipitation falling in heavy rain events over the past 50 years. The increase in downpours is also expected to continue in this century. Other regions are experiencing similar impacts. This increasing volume and intensity in storm water runoff will create increasing conflicts between neighbors. In addition, the conflicts will grow between the Federal Emergency Management Agency, property owners, and local governments in the remapping of flood risks areas. Storm water runoff is a condition that can create serious “neighbor wars” when changes occur unexpectedly as they are today. Coupled with climate change, the conditions created by development and the resulting change in water flow and absorption patterns cause surface flows to increase, creating problems for downstream neighbors. Multiple parties are almost always involved including local governments, storm water management entities, developers, and individual land and home owners. Personal animosity grows quickly when one neighbor’s development or renovation of its property creates new or increased flow of surface water that damages another neighbor’s property. The end result of these conflicts is often litigation and undying resentments that last for years. Yet these types of disputes are perfect candidates for collaborative dispute resolution using mediation as a prime method for solving problems.
If appropriate structures are incorporated into projects, such as channels, retention basins, absorption areas, and culverts, these impacts can be mitigated or eliminated. Green building techniques are also intended to mitigate this storm water runoff problem while enhancing the environment. Proper engineering, as well as storm water management plans required by local and state governments, is intended to eliminate the problems associated with creating the built environment, but this can be a somewhat imprecise science. This article discusses the resolution of a storm water dispute using a mediation process that focused on finding a cost-effective technical solution. In an adversarial process it is not unusual for more money to be spent on litigation than it might have cost to solve the problem. Furthermore, the time it takes in litigation to determine who is responsible can increase the damage to property, as well as the cost of the solution. The Case of the Farmers versus the Subdivision— One recent experience involved farmers and an adjacent residential development in the northeastern United States. The development had an approved storm water management plan and had completed about half of the planned build-out of homes. The developer had also put in some of the temporary structures to control storm water runoff. The farmers alleged an immediate effect on their properties from increased runoff, but after years of complaints felt they were unable to get the developer or local government to listen. After years of frustration and attempts to seek help from the county government and the developer, the farmers finally sued the home owners’ association and the developer for damages caused to their farms. The development had allegedly increased the water flow onto the adjacent farms, even though the water management plan was approved by the county and showed no change in runoff. The farmers experienced erosion and increased mud patches, as well as the formation of potential new “wetlands.” One major concern was that endangered turtles would inhabit the new
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conditions, which would dramatically change the land use requirements on the farms. After the lawsuit was filed, the case proceeded through more than a year of discovery and pre-trial posturing at the expense of all parties involved. Legal counsel for the homeowners’ association and developer’s insurance companies got involved in the defense. In this case the involvement of the insurance counsel ended up helping the parties look for a resolution. When the judge in the case finally ordered all parties involved to take timeout for 60 days and try to mediate, everyone was ready to look for a solution. Even though there was some skepticism about whether the case would get resolved, there was fortunately an openness and willingness to try the mediation process. Collaboration to Find a Technical Solution—The farmers’ lawyer recognized that what the clients wanted most was a technical solution that worked. Their properties continued to experience the damage of increases in water flow. The lawsuit would take longer to get to trial while resources were being spent on the legal process rather than a solution. The lawyers sought a mediator who also had a technical understanding of the problem. Their search came up with a mediator and a lawyer, who was also a licensed engineer. Among other things, the mediator’s background included training as an officer in the U.S Army Corps of Engineers in engineering for storm water runoff and drainage structures. In order to mediate a technical solution, both sides were encouraged to use their own technical experts for advice on the nature of the problem as well as a solution. Prior to the mediation all sides’ technical experts exchanged their analysis and technical solutions. Conference calls were held with all sides, both together and also separately, to insure a clear understanding of each side’s position and interests. The Mediation Session—One approach and practice in these types of disputes is to start the mediation in a joint session with everyone in the 9
same room, which in this case lasted about two hours. This allowed each side to present its position and have a chance to rebut the other side. This sense of “being heard” is a very critical component in resolving disputes. There was an important acknowledgment by all participants in the joint session that temporary structures had not been put in final form, since all the housing units had not been completed. It was further acknowledged that this fact contributed to an increase in flow conditions. However, there was no agreement at the outset of the mediation on how to fix the problem. The developer’s expert recommended a simple solution involving completing the drainage structures that were designed for the built-out development site. In addition, they offered to add in a few upgrades. The cost of their solution was only about one-tenth of the price of the other side's design. The farmers totally lacked confidence in the as-designed plan. Their expert recommended completely rerouting the storm water by putting a ¼-mile drainage pipe under a paved road discharge directly in the creek downstream, at a cost of several hundred thousand dollars. The final phase of the mediation included caucusing with each side separately. For this case, this phase lasted about four hours, with the mediator encouraging proposals while shuttling back and forth. The two initial solutions were pretty far apart. After much back and forth, the mediator identified an intermediate solution that no one had focused on. It involved burying a drainage pipe through the farmers’ property exactly where the water was running. The concept from the mediator was presented independently to each side and tested in private by their technical experts. Neither side wanted it to be considered their idea (which it wasn’t) until they received the other side’s reaction. The proposal was shuttled back and forth and was finally accepted, thus beginning a path toward amicably settling the case. Lessons Learned—There are several reasons why this matter resulted in a settlement through the
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mediation process. First, there are many times a dispute needs a “shove” toward a different method to resolve the dispute, and the court’s directive provided that. Second, the technical experts were hired to find technical solutions. This meant they were much more open to factual agreements and creative thinking than would be the case if they were hired to testify at trial, when they necessarily become more adversarial. Finally, a mediator’s skills are often much more important than the mediator’s subject matter knowledge. However, many types of dispute are different; finding the technical solution is often the predominant interest. By sitting in a neutral corner, a mediator gets a much different view of the problem and solution, as well as the opportunity to see things the parties in conflict cannot. The storm water disputes of the future are likely to be much more complicated in terms of culpability and responsibility. The 100-year storm now seems to be occurring every couple of years. The increasing intensity of storms by itself is enough to overload mitigation strategies and structures that should have been adequate in the
44TH SPRING CONFERENCE:
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past. Furthermore, new restrictions on land use in flood risk areas are growing and creating serious insurability problems. Finally, strapped government entities are not going to be capable of footing the bill for all necessary improvements. Therefore, the first dispute resolution method to be considered in a storm water dispute should be a collaborative approach such as mediation, involving all the stakeholders, technical advisers, and any disputing parties in solving the problem and sharing in the costs. Chris Kane is an engineer, lawyer, and mediator with more than 30 years experience in the building industry. He is frequently called in for private mediation of environmental and construction disputes; he has served on the American Arbitration Association’s Panel of Arbitrators and Mediators since 1994 and is on the International Institute of Conflict Prevention and Resolution Panel of Neutrals. He is a graduate of West Point and received his law degree from George Washington University. Chris is vice president and chief counsel Alternative Delivery at AECOM, one of the largest engineering and construction companies in the United States. Portions of this article were originally published in the NJAPM Newsletter.
Registration Now Open! For four decades, in the spring of each year, the leading environmental, energy, and resource lawyers, government officials, and academics gather to address the key topics of the day for prac cing lawyers. The Spring Conference is an unparalleled forum designed to keep you up-to-date on the most recent developments affec ng your prac ce so you can more effec vely serve your clients. Environmental commi ees from across the ABA have joined to plan the 44th Spring Conference, which promises to be a Super Conference with increased CLE opportuni es, covering an expanded range of topics from li ga on to transac ons.
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Hear the latest about environmental cases before the U.S. Supreme Court at the opening plenary. Learn about the most recent developments in air, water, waste, and enforcement issues at the hot topics panels. Listen to specialists in their fields, including officials from EPA Region 9, speak about such topics as risk alloca on and presen ng complex environmental evidence at trial. The Spring Conference is an opportunity for you to network with the na on's top environmental, energy, and resource lawyers.
www.shopABA.org/EnvironSpring Alternative Dispute Resolution Committee, December 2014
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Melding Diverse Operating Cultures: Calibrating the Catch-Up
WHAT’S DIFFERENT ABOUT FACILITATING COLLABORATIVE EFFORTS TO BUILD RESILIENCE TO CLIMATE CHANGE? Joseph Siegel and Elissa Tonkin Climate change is no longer a distant threat; the impacts are happening right now, right here in the United States. According to the U.S. Global Change Research Program’s 2014 National Climate Assessment, “climate change is already affecting the American people in far-reaching ways.” At the September 2014 UN climate change summit, President Obama cited to the hottest decade on record in the United States, regular flooding in Miami at high tide, Hurricane Sandy, wildfire seasons in the western United States that last most of the year, and farms in our heartland that have experienced the worst drought in generations and the wettest spring in our history. These changes have not gone unnoticed by many forward-thinking leaders from local, state, and federal government, academia, nongovernmental organizations (NGOs), and industry, who seek to build resilience to climate change impacts. Although the field of climate change adaptation is still in its infancy, a plethora of collaborative efforts have already taken place or are under way to formulate decisions that will help us adapt to our changing planet. Increasingly, these collaborative efforts are undertaken with the assistance of neutral facilitators. Environmental facilitators have long been assisting parties with complex public policy decisions. As any facilitator can attest, each decision-making process is unique given the nature of the problem, the parties involved, the personalities in the room, the geography, the history, and a host of other factors. But climate change adaptation efforts come with a common set of challenges. While one or more of these challenges are present in many types of environmental collaborations, they are especially likely to be at play during a collaborative effort on building resilience to climate change. The following is a discussion of six such challenges. 11
An exhilarating and encouraging feature of these climate collaborations is that many different types of stakeholders typically come together to take action. Ten, twenty, thirty or more stakeholders might join forces to problem solve. It is wonderful to see the collaborative spirit that arises from the many involved stakeholders. At the same time, the individuals and institutions represented in the process are confronted with the difficult task of melding the distinct ways in which each operates. They need to understand the institutional challenges and opportunities of their counterparts to successfully forge a path together. It can be timeconsuming and sometimes tedious at the outset of a collaborative process for parties to learn what all the other stakeholders are currently doing about climate change and understand the authorities and opportunities they draw from in carrying out their responsibilities. Some groups spend a great deal of time, perhaps too much time, learning about one another’s capabilities. This can produce so much information that it becomes hard to synthesize and use in any meaningful way. Conversely, some groups gloss over discussion of participants’ varying capacities and authorities, which can result in their forging ahead without an adequate foundation for good decision making. The amount of time and energy wisely spent on information sharing at the outset of a process will depend on the long-term goals of the group, the desired outcomes for the initial meeting, and the logistical constraints (e.g., available time and number of participants) of that meeting, among other factors. Sometimes the information sharing can be most effective if it is staged over time in a way that is tailored to the needs of each phase of a collaborative effort. A facilitator can help the parties harmonize the need for information about one another with the broader goals of the process.
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Collaborative Workshop or Educational Conference: Resisting the Default Mode Given the large number of potential stakeholders in a resilience-building effort and their desire to share information with one another, the planners of resilience efforts can often move down a path toward a traditional panel-style conference with little opportunity for collaborative discussion. In their eagerness to educate one another, planners often structure events to maximize the opportunities for formal presentations followed by Q&A, thereby shortchanging the time allotted for collaborative-style processes. Presentations by passionate experts often run longer than expected (going beyond their agenda-allocated time), further squeezing out more interactive informationgathering and problem-solving segments. Facilitators may find themselves in the position of having to encourage the planners to build in more time for the discussions necessary to move forward with the resilience-building effort. By helping the planners to clarify their goals, a facilitator can sometimes help them resist the temptation for a traditional conference-style event. That said, the planners might have a very clear vision of a tiered process in which the kickoff meeting is largely educational, while subsequent meetings will be used to provide the opportunity for collaboration and decision making. Even so, a facilitator can challenge the planners to think about whether integrating educational panels with collaborative processes over several meetings, rather than compartmentalizing them, would be more productive. In addition, a facilitator can ask the planners to gauge the participants’ appetite for sitting through a conference-style event in light of the potential for fatigue from all the other climate change resilience efforts they might be involved in (discussed further below). Resource Constraints The resources available for climate change adaptation, while growing, still trail behind the will to take action. Parties sometimes invest a
great deal of energy and time in a collaborative process, reach consensus on their priorities, and develop an action plan, only to discover that there are insufficient financial or human resources with which to implement it. The parties might be able to agree, based on their collective capabilities and institutional needs, on the most important resilience strategy to collaborate on, but then fail to ever effectuate their plans. While resources might have been included among the factors used to select the strategies for action, parties might not discover the impossibility of a particular option until they go back to their respective offices and assess the resources actually available. Organizations tend to fund initiatives that have collaborative momentum, often evidenced by well-articulated goals, realistic action plans, and some demonstrated successes. The catch-22 is that individuals and organizations are reluctant to commit the staffing resources it takes to achieve that level of momentum without any guarantee that the funding needed for implementation will follow. Regardless, some climate adaptation planners choose to simply plunge in, Field-ofDreams-style, and have faith that the resources will come. Indeed, sometimes the funding and staffing resources later emerge, especially when the effort was initiated at the behest of decision makers in positions of authority and the planning effort is rooted in partnership building. But the bet does not always pay off; so stakeholder groups should be mindful of the possibility that their action plans will sit neglected on a shelf without an up-front commitment of resources for implementation. One way to address this problem is to survey available resources before selecting strategies, so that the potential options for taking action are narrowed at the outset by the resources available. Another approach is to first hold a meeting of leaders from government (local, state, and federal), the private sector, academia and the NGO community who have authority to devote resources to a climate change resilience effort. The resources meeting could be followed by a collaborative exploration of options among a broader group
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of stakeholders that can derive support from the resources that have been identified. Work Group Fatigue Lack of resources can be one cause of “work group fatigue,” another problem common to climate change resilience efforts. Human resources are in short supply in the resilience-building arena. There are often multiple resilience efforts going on simultaneously in a single geographic or substantive area. While each of those efforts may be laudable and have some unique goals, the meetings to support those efforts are often staffed by the same individuals. Work group attendees can become overloaded with too many resiliencebuilding processes and have limited capability to do the work back at their offices necessary to produce successful results. Facilitators can help the planners of a new multistakeholder effort clarify how their effort will differ from others that are already under way, explore ways to avoid repetition, draw on the successes of other processes, and narrow the objectives and resultant time commitment of the beleaguered participants. Doing Too Much with Too Many People Too Much of the Time A related problem to work group fatigue is caused by the collaborative spirit gone amok, more specifically, the indiscriminate impulse to turn every step into an inclusive, consensus-driven production. The nature of climate change impacts is that they tend to implicate multiple disciplines and many different kinds of organizations that can play a role in addressing the impacts. Because of the complexity of understanding the impacts and building resilience to them, it seems logical to want to include everyone who could possibly lend a hand. While this might at times lead to fruitful results, for example, in developing a database of impacts or ongoing actions to address those impacts within a 13
particular region, groups can often become stymied by trying to agree on actions that involve every stakeholder at the table. Although a collaborative workshop might involve dozens of organizations, facilitators can help the group sort out which ones are most critical for carrying forward any agreements on next steps. There will often be some benefit in circling back to the whole group at some point, but progress can be made much more swiftly if a more limited group of key stakeholders is empowered to move forward without the entire group. Getting Lost in the Weeds of Complexity Facilitators are used to keeping participants on task and managing time. These skills are of great importance to climate change resilience efforts because it is easy for participants to get lost in the complexity of issues during their discussions. There are often many layers to a particular scientific or policy question about climate change resilience and a great deal of overlap between the many issues involved in building resilience. For example, a group could spend an entire meeting discussing the relative merits of the various tools for projecting inundation in a geographic region, when the actual goal of the meeting is to formulate a modest set of next steps on a broad array of issues (e.g., educating the public on resilience, selecting a pilot on green infrastructure, organizing a communication strategy for the group, etc.). Likewise, the discussion of inundation projection tools could easily spill over into other topic areas such as strategies to address release of household hazardous waste following inundation or restoration of wetlands to prevent damage to homes. Facilitators can help the group achieve the goals for the meeting while capturing for future discussion the overlaps and need for detailed exploration of a particular topic. A related family of weeds that can ensnare stakeholders is the challenge of framing questions to guide the conversation once the scope of the meeting has been narrowed. Ideally, the questions are specific enough to focus the discussion,
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open-ended enough not to foreclose valuable contributions, and few enough to ensure that the most important issues are addressed. It is typically the case that there are multiple legitimate ways to frame the key questions necessary to advancing the participants’ goals. Facilitators can help parties find the line between thoughtfully framing issues and bogging down in search of a single “correct” approach to tackling the topic at hand. Conclusion These six items do not represent an exhaustive list of issues for facilitators to consider during collaborative efforts on climate change resilience, but they do reflect some of the most pressing challenges that groups face during this nascent phase of climate change resilience building. Facilitators can play an important role in helping groups achieve their resilience goals by being mindful of these challenges—and often by simply naming them as they arise. In doing so, facilitators can also model the principle of adaptive management by continually reassessing the effectiveness of their role as facilitator and making adjustments as warranted. The facilitator’s explicit observations about and modeling of adaptive behavior can encourage the participants to incorporate an attitude of flexibility into their ongoing interactions, as well as their action plans. Joe Siegel is a senior attorney and Environmental Collaboration and Conflict Resolution Specialist for EPA Region 2. He teaches environmental dispute resolution at Hofstra Law School, climate change law at Pace Law School, and co-chairs the ABASEER ADR Committee. Elissa Tonkin directs the New England Regional ADR Program for EPA Region 1 in Boston, where she has been helping parties convene and conduct environmental conversations for over 20 years.
The views expressed in this piece are solely those of the authors and do not necessarily reflect the official position of the agency or organizations with which they are affiliated.
SUGGESTIONS FOR EXPANDING THE USE OF ENVIRONMENTAL DISPUTE RESOLUTION IN UTAH AND BEYOND Michele Straube Since the Snoqualmie River dam case in 1973, the environmental dispute resolution (EDR) field has grown to encompass a wide array of processes and approaches to prevent, manage, and resolve conflicts and disputes related to environmental and energy and natural resource (E/NR) issues. Use of the term “EDR” in this article includes traditional mediation (of cases in litigation and before litigation has been filed), arbitration, negotiated regulation, collaborative development of agency policy, place-based collaboration (using an outside facilitator and un-facilitated), community-based advisory groups, and issue-specific work groups or task forces. Utah can be viewed as a particularly challenging case for implementing EDR and its promise. Politically, Utah is at the forefront of the states’ rights approach to managing public lands. Rhetoric based on ideological positions is common, and many in positions of power refuse to talk to or negotiate with those who disagree with them. The scarcity of local environmental mediators and facilitators provides a further challenge for EDR approaches in the state. As one of its first projects, the Stegner Environmental Dispute Resolution Program undertook an informal assessment of EDR in Utah. Over a period of five months in early 2012, the author conducted over 30 confidential interviews with and received over 80 responses to a written survey from a cross-section of stakeholder interests involved in E/NR conflicts in Utah. We issued a “Report Card on EDR in Utah” and offered suggestions for improvement that may be instructive for the EDR field as a whole. This article focuses on aspects of the assessment and report card most relevant to the legal profession.
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Assessment of EDR in Utah The concept of EDR in Utah was graded according to a rubric generally following a law school grading approach. Rubric 1: Stakeholders’ understanding of the EDR concept: What do Utah stakeholders know about the existence of various EDR processes and how they work, and what do they consider the benefits of EDR? We found a range of understanding about EDR in Utah—from distrust to curiosity to great sophistication. The unequal and shallow distribution of knowledge about EDR processes across stakeholders is most likely due to lack of exposure to and experience with EDR processes. A small number of lawyers resisted the concept of using alternatives to litigation such as mediation. That reluctance was motivated by self-interest (“mediation is not in a lawyer’s best [financial] interest”) or a disbelief in the value or power of interest-based negotiation (once litigation is filed, the company and/or their lawyers are “locked in” to positions). A much larger proportion of Utah lawyers were willing to consider mediation and listed some specific types of cases where it would be most applicable.
The “early and often” theme was raised frequently as an attribute of successful EDR processes. Respondents pointed to the advantages of including all perspectives early in a decision-making process, before preferred alternatives are selected (i.e., before there is much to disagree with), with the purpose of the collaborative process being to identify common goals and reach consensus solutions. Many respondents also valued the use of an unbiased facilitator who was not affiliated with any of the participants or interests, claiming that this provided legitimacy and focus to the conversation. Finally, a significant number of respondents stated that a site-specific focus (placebased collaboration) had the highest likelihood of success because the participants were motivated to reach a workable result out of love for “the place,” as well as providing a very real focus for implementing policies and ideological concepts on the ground. Rubric 3: Whether legitimate answers are provided: What is the correlation between the use of EDR and results perceived by the stakeholders as desirable?
Rubric 2: Application of the EDR concept to the facts: Is EDR being used at all in Utah? How, when, and why is EDR being used? Respondents who identified themselves as practicing attorneys were more likely to have participated in processes that are directly related to litigation and regulatory process, such as mediation (either before or after litigation had been filed), arbitration, or negotiated regulations. Those who did not identify themselves as practicing attorneys had more personal experience with collaborative development of agency policy and place-based collaboration (facilitated and unfacilitated).
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Place-based collaborations using an outside facilitator were considered most effective by the greatest number of respondents, whereas unfacilitated collaborations and mediation of a case in litigation ranked as least effective.
Many stakeholders in Utah focus on three practical outcomes from EDR processes that they find legitimate and compelling. First, project proponents value the ability to reach a workable solution that moves past roadblocks and allows projects and activities to begin or continue. Second, project opponents value the opportunity to pursue creative solutions that address the “real” issues, regardless of whether a court could issue a ruling on them. Third, many stakeholders appear to value the opportunity to build long-term relationships that carry over to future issues and help to prevent and manage future conflicts.
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Rubric 4: Quality of work: What is the quality of EDR being conducted in Utah?
advocacy positions, and politicians need to be uncompromising to be electable.
With no formal evaluation mechanisms for EDR processes in Utah, judgments about the quality of work can only come from the participants themselves. Many respondents commented about the lack of local capacity for skilled neutral services, both mediators and facilitators. Several lawyers interviewed mentioned that while mediators are listed on the state court roster as specializing in environmental matters, they generally look out-of-state to find the substantive expertise they expect in an environmental mediator (or forego mediation due to the extra cost involved in going with an out-of-state mediator).
Lawyer survey respondents in particular felt that there was sometimes or always inadequate time to let the EDR process run its course, thus discouraging the use of mediation and collaboration, but also sometimes preventing parties from reaching agreement. Over half of all survey respondents were concerned that lack of funding kept stakeholders from trying EDR processes as an alternative approach to addressing E/NR issues.
Rubric 5: Experiential learning: Are EDR processes in Utah being documented and evaluated? The “homework” to demonstrate the use of EDR in Utah has not been turned in, making it difficult to assess what works well, what does not, and why. Learning from previous experience and drawing inspiration from EDR successes are not yet occurring. Final Grade: Incomplete Using the above rubric, the author gives EDR in Utah an “Incomplete” grade, but acknowledges the progress being made and the potential for improvement. Challenges and Barriers to Expanded Use of EDR in Utah Lack of trust between participants was the highest ranked barrier to expanded use of dialogue and consensus-building in Utah, with a third of lawyers suggesting that lack of trust is always an issue and two-thirds of non-lawyers suggesting that it is often an issue. The following general mistrustful stereotypes were asserted by individual interviewees: lawyers prefer to litigate rather than settle, “environmental groups” make money (gain membership) from taking hard-line
Suggested Areas for Improvement Clarify and Communicate the Goals and Benefits of EDR There is both a lack of awareness and an inconsistent understanding among stakeholders about what EDR is or can accomplish. Academics and practitioners use many different names for the varying processes that comprise EDR. The author has found a similar definitional confusion amongst those who use or hear the term “ADR,” the umbrella concept for environmental dispute resolution. EDR (and ADR) processes might be better understood if the language we used to talk about them clearly reflected their objectives. The author suggests that, at least in the context of E/NR disputes, “ADR” is simply an acronym for “Additional Dialogue Required.” Given the complexity and highly controversial nature of the underlying issues, perhaps EDR can be thought of as “Even more Dialogue Required.” Dialogue is the ultimate purpose and benefit of most EDR processes, and creating an opportunity for dialogue is the work of EDR. Stating that objective as part of the name used to describe the field might broaden perspectives and increase willingness to participate. Build EDR Awareness and Capacity EDR is not a subject offered regularly in most law schools or other professional programs (e.g.,
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master’s of public administration, planning, natural resources management). Indeed, the core concept underlying all EDR processes—interest-based negotiation—is not an essential skill for graduation from any professional program. Based on the author’s own experience teaching separate courses in EDR and conflict management in the University of Utah law school and master’s of public administration (MPA) programs, this one class is often the law or MPA student’s first (and, if they are graduating, their only) exposure to interestbased negotiation, consensus-based decisionmaking models, collaborative problem solving, conflict prevention/management approaches, and other alternatives to litigation. Share EDR Stories A conscientious effort to spread the word about what EDR can accomplish is one approach to increasing the knowledge about collaboration and consensus building, and increasing political support for dialogue, two of the top challenges survey respondents identified for expanding the use of EDR in Utah. Creativity is needed to disseminate EDR case studies to the desired audiences (i.e., beyond “the choir”). Case studies should also be used as a means of identifying lessons learned and developing best practices, so that future EDR processes will be ever more successful. Continue to Find New Examples for the Use of EDR While there are EDR concepts that can be applied to most E/NR issues (e.g., interestbased negotiation, inclusivity of stakeholder perspectives), there is no cookie-cutter approach to fitting the process to the issue. There is no “usual” case. It is important to be creative in process design to demonstrate the effectiveness of various EDR processes including mediation, consensus-building processes, extensive public participation short of consensus, and/or a collaborative governance approach.
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Potential Role of Law Schools and Other Academic Institutions Law schools and other academic institutions should introduce the E/NR professionals who will be in positions of power and influence for decades into the future to the core values and potential benefits of mediation, collaborative problem solving, community engagement, and the many other aspects of EDR as part of their graduate education. Participants in well-designed and wellimplemented EDR processes become strong proponents of EDR. Unfortunately, the opposite can be true as well. Educational institutions and others should do what they can to document EDR processes, and tell the stories of what works well (and what doesn’t) in a way that politicians, community members, agency staff, and other potential stakeholders can “hear” and understand. Success stories can serve as regular reminders that approaches exist that exemplify something beyond “business as usual.” Academic institutions can and do serve as a neutral place where different stakeholder interests come together in dialogue on controversial issues. This is one way of building the library of case studies and creating the positive experiences with EDR and collaborative problem solving that will become the stories that persuade. Michele Straube is a lecturer at the S.J. Quinney College of Law, University of Utah, and director of the Environmental Dispute Resolution Program at the Wallace Stegner Center. The EDR Program has launched an EDR blog (www.edrblog.org) and welcomes guest bloggers to share their EDR stories and reflections on the benefits and challenges of EDR.
This article is based on “Report Card on Environmental Dispute Resolution in Utah— Grade: Incomplete But Showing Promise,” J. Envtl. L. & Litig. 28:227 (Winter 2013).
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NOMINATE 2015 Award For Distinguished Achievement In ENVIRONMENTAL LAW AND POLICY 2 015 C A L L F O R N O M I N AT I O N S
The Award for Distinguished Achievement in Environmental Law and Policy recognizes individuals or organizations who have distinguished themselves in environmental law and policy, contributing significant leadership in improving the substance, process or understanding of environmental protection and sustainable development.
NOMINEE C ATEGORIES (1) Individual lawyers who, through an environmental law practice, scholarship or other significant career involvement with programs, services, regulatory systems, legal cases, journalism, education or legislation, have exerted leadership that directly resulted in significant improvements in the substance, process or understanding of environmental law or policy;
(2) Organizations/Programs – U.S. bar associations, law school clinical programs, non-profit institutions, nonprofit legal services programs, law firms, government offices or programs, tribal programs, and law-related programs that provide representation, education or advocacy on environmental matters – that have exerted leadership that directly resulted in significant improvements in the substance, process or understanding of environmental law or policy.
www.ambar.org/EnvironAwards 2015 AWARD NOMINATIONS DUE MAY 8, 2015
PAST AWARD RECIPIENTS 2014 - William M. Tam, Deputy Director, Department of Land & Natural Resources (individual) 2014 - The George Washington University Law School Environment and Energy Law Program (organization) 2013 - Leslie Carothers, past president, Environmental Law Institute (individual) 2013 - National Environmental Law Moot Court Competition (organization) 2012 - Professor Svitlana Kravchenko (posthumous award) (individual) and the University of Maryland Environmental Law Clinic (organization)
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