Today’s divisive politics portends the proliferation of environmental disputes. It is reasonable to expect a growing number of clashes among businesses, government, and grassroots environmental and neighborhood groups. Despite this harbinger of conflict, environmental mediation can play a critical role in resolving at least a portion of these impending disputes.
Environmental mediation offers promise to resolve many environmental disputes. An impartial environmental mediator can assist the parties to find common ground and to identify mutually acceptable settlement conditions. While the environmental mediator does not impose a settlement, he/she can provide an impartial assessment of the merits of each party’s case. The mediator’s role is to encourage cooperation to resolve disputes. In addition, since environmental mediation discussions are confidential and generally cannot be used in subsequent litigation, there is little downside to parties at least making an effort to use mediation to resolve disputes.
Traditional environmental litigation is often lengthy, costly and poses significant risks. Litigation is commonly a zero sum game – one party wins, one party loses. The losing party typically walks away with nothing besides frustration and aggravation. The prevailing party gets the result it seeks, but usually at the cost of considerable litigation expenses and delayed projects. Environmental mediation, however, offers an alternative means for reaching a resolution acceptable to all parties at a fraction of the cost and time needed to litigate the same dispute.
Environmental disputes are varied and parties typically are driven by diverse motivations. Most commonly, environmental disputes are related to efforts by businesses to expand by siting new facilities or infrastructure, real estate developers seeking to pursue development opportunities, or local governments siting new municipal facilities or improving existing infrastructure. Such efforts can be met with strident opposition from impacted neighbors or competing businesses. Litigating such disputes often becomes a war of attrition, with one side hoping to outspend their opposition into submission, while the other party believes it can kill a project by imposing interminable delays.
Several words of caution are necessary. Not every environmental dispute is a good candidate for mediation. Considering that compromise is typically a defining feature of environmental mediation, the process cannot be successful if one or more of the parties adopts uncompromising positions. Disputes that are fueled by strongly held political and philosophical beliefs cannot typically be mediated successfully. For example, it would be antithetical for an anti-nuclear group to compromise its core values to agree to a mediated settlement that involved construction of a nuclear power plant, in any shape or form.
For environmental mediation to be successful, both parties must be willing to accept some compromise of their positions. Many experienced environmental mediators can recall situations where one party hoped to enlist a mediator to affirm their position and to explain to their opposition why their sincerely held positions were totally meritless. These types of environmental mediations are normally doomed to failure. Nonetheless, assuming an openness to compromise, a neutral mediator can be instrumental in aiding the parties to reach a settlement at less cost and aggravation than pursuing litigation.
A second category of environmental disputes that may not be susceptible to mediation is those involving direct conflicts between a governmental entity and a private party. While, in theory, such disputes should be amenable to environmental mediation, it is generally unlikely that government agencies would agree to enter mediation. Typically, the balance of power between an enforcement agency and a member of the regulated community is heavily tilted to the government, making mediation difficult. In addition, many government agencies simply lack a feasible administrative mechanism to facilitate the use of mediation.
With those limitations in mind, there remains a significant universe of environmental disputes that can be mediated. Such disputes actually include those where a government enforcement agency, such as the Pennsylvania Department of Environment Protection (“DEP”), issues a permit or some other approval. Individuals or groups can appeal such DEP approvals. In such cases, the real dispute typically is between the proponent of a permitted facility and neighbors attempting to block it. Ideally, these sort of disputes can be identified and referred to environmental mediation even before they get to the permitting stage.
Efforts to site disfavored uses, such as landfills, sewage treatment plants, large residential developments, pipelines, polluting industrial facilities, mines, and waste processing facilities, are frequently met with vocal neighborhood opposition. This opposition often is not politically motivated, but driven by a “Not In My Backyard” (“NIMBY”) syndrome. For example, while local residents might generally support the abstract use fossil fuels, they simply are not willing to accept the potential health and economic risks associated with an oil pipeline running through their neighborhood.
Using pipeline development as an example, those opposing such a project might realize that the pipeline company might ultimately have a legal right to construct the pipeline, but recognize they can employ delaying tactics to block the project. Most proposed projects of this type afford numerous opportunities for delay, especially those requiring approvals from multiple governmental agencies at the local, state and federal levels. While delay might benefit the opposition, it can be the poison that kills a project.
On the other hand, a well-funded project proponent, confident of the legal merits of their case, can frequently out-spend their opponents into submission. Individuals and communities of limited means find it difficult to sustain their efforts under such circumstances, even though they might ultimately prevail on the legal merits of their challenge.
Under these circumstances, environmental mediation could benefit all parties. Community members can exchange their blanket opposition to a project for commitments that would limit the impacts of a project (e.g. downsizing of a project, implementation of safeguards, limiting operating hours, adjustment to a project’s location within a property). They could also negotiate financial payments to ameliorate a project’s financial impact, such as a diminution of property values. In exchange, project proponents avoid delays and reduce or eliminate risks and litigation costs. Mediated settlements can also help project proponents avoid negative publicity inherent in environmental conflicts.
Environmental mediation offers the potential for a global, rather than a piecemeal, resolution of all pending or actual challenges. A distinguishing factor of many environmental disputes is the multiplicity of forums in which opponents can oppose a project. For example, any given project might require zoning approval from a local municipality, permits from a state environmental agency, and approvals from multiple federal entities. Needless to say, the more approvals required, the more likely the opportunities for delaying a project.
Environmental Mediation can also be a valuable tool for addressing disputes in environmental justice communities. DEP defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies. Environmental justice communities, with a high population of low income and minority residents, have often been the unwelcome home of projects that pose elevated risks to residents’ health and quality of life. Many regulatory agencies, including DEP, now factor environmental justice considerations into their decision-making on approvals necessary for a project to proceed.
By definition, residents in environmental justice communities typically lack sufficient financial resources to mount full-fledged challenges to many proposed projects. This does not, however, mean that such communities are powerless. Well-organized citizen groups, through skillful use of the media and political process, can still place significant obstacles in the path of proposed projects. While residents in environmental justice communities might be resource-starved and face numerous legal obstacles, they do not lack power to block or delay proposed projects. Project proponents can wage a financial war of attrition but might be powerless to avoid economic hits associated with delay. Mediation could be used to both to protect community interests and to facilitate the implementation of responsible projects.
Often overlooked is environmental mediation’s value in facilitating positive relationships between parties that must continue to interact and co-exist long after a dispute is resolved. While it is unlikely that the parties to an environmental dispute will see eye to eye on many issues over the long term, a successful mediation can create a foundation of trust and cooperation.
Environmental mediators should possess necessary mediation and interpersonal skills as well as substantive legal knowledge. Because of the legal and factual complexity of many environmental disputes, a knowledge of the underlying environmental law is vital to enable a mediator to impartially evaluate the merits of the parties’ legal positions and to guide them through the mediation process.
It is essential that attorneys representing parties in disputes recognize when environmental mediation might be in their clients’ best interests. While environmental mediation might not be a panacea, it can be a valuable tool when used judiciously to resolve environmental disputes.
Reprinted with permission from the “January 17,2017 edition of the “Legal Intelligencer Alternative Dispute Resolution Supplement”© 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.