Environmental conflict resolution The promise of cooperative decision making
John Busterud RESOLVE Center for Conflict Resolution Palo Alto, Cali$ 94301 Environmental conflicts seem to be escalating in number, scope, and cost, thereby reinforcing a public lack of confidence in an uncertain and difficult future. At great cost to society, our courts are faced with the burden of judiciously threading their way through the newest and most technically complex area of legal specialization. At the same time, experiments with alternative means of conflict management continue to multiply and to provide us with examples of a broadened range of possible responses to our environmental dilemmas. We are faced with a challenge: How can we achieve sound environmental policies which have broad public support and which take into account the range of values in our society? Feature articles in ES&T h a w by-lines, reprerent thc views o f t h e authors, and are edited h,, the Washington staJJ If you are interested in c,ontrihuting an article, contact the managing iditor. 150
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As decision makers on both national and local levels and advocates for differing interest groups wrestle with difficult environmental issues, they should give increasing attention to the process by which decisions are reached. The established judicial and administrative mechanisms have all too often polarized disputants and promoted a win-or-lose approach in deciding environmental issues. RESOLVE and a growing number of other organizations and individuals believe that the social costs inherent in these adversarial processes are unnecessarily high, and that strategies for neutral third-party intervention may help society achieve better results, at lower cost, with greater planning certainty. The potential for conflict exists in all human activities and interactions. Conflict is not in itself bad; it can, in fact, be a healthy and educative element in the society’s dialogues regarding controversial issues. However, when conflict escalates to the point of potential violence, or threatens to exact undesirable economic and social costs, the conflict must be intelligently managed so that its energy can be channeled constructively. The tensions that build up between
the parties to a conflict often make it impossible for disputants to resolve their own differences; thus, over time, all sorts of third parties have evolved as agents of conciliation or settlement. Solomon’s conflict management tactics may have been a little crude for most of us today, but even that early mediator recognized the importance of forcing the warring parties to consider the ultimate outcome of continued conflict, Hammurabi and Moses tried a different tactic, with considerable success: the reduction of conflict through the codification of codes and conduct. From these early experiments seeking “justice,” laws and courts have arisen to adjudicate disputes in society. Sovereign edicts, legislative acts, judicial rulings, and international conventions are all forms of third-party intervention. Yet these all rely on concepts of jurisdiction, force, or political power. And as society moves from one stable plateau of relationships to another, such concepts frequently do not lead to better solutions to problems and conflict, but merely sow the seeds of future unmanageable conflict. This has caused social scientists and others to direct their attention to new ways of
0013-936X/81/0915-0150$01.00/0 @ 1981 American Chemical Society
How can we achieve sound environmental policies which have broad public support and which take into account the range of values in our society?
building a consensus. Instead of relying exclusively upon win-or-lose decisions and majority rule, society incrgasingly seeks a consensus that commands the support of far more than a mere majority (or, in complex issues, a plurality). This is not easy, particularly in dealing with the multifaceted issues that confront the world today. As the public’s desire to participate in decision making has grown, we have seen the unique evolution of “people’s democracy” in this country. But this development has often sent out confusing signals to public leaders-particularly in the realm of energy policy. The growing number of interest groups that wield political clout have often been unable to channel their influence effectively, or with any common voice. This may be due in part to the growing role of technology and science in policy making and the complexity of modern-day political issues. The credibility of public officials and scientists has suffered as decisions have been made on inadequate data, incoherent scientific assumptions, or unsatisfactory citizen participation. Scientists have been additionally to blame for confusing scientific fact with personal opinion. Enter the mediator
Some years ago, when I was a member of the Council on Environmental Quality, CEQ was visited by two dedicated and enthusiastic proponents of environmental mediation, Jane McCarthy and Gerald Cormick. At that time, their pioneer project on mediation was just getting under way, and 1 recall rather vividly that we a t CEQ displayed a healthy, perhaps excessive, degree of skepticism about the future potential for nonadversarial approaches to environmental decision making-particularly in view of the overriding role that the National Environmental Policy Act (NEPA) had played in project planning and development, and the polarization that had occurred in many environmental issues. Now, some seven years later, the considerable growth of activity and interest in the field seems to belie that
early skepticism, although there are still questions to be answered. Centers for conflict management now exist in many different regions of the United States, and there have been a number of successes. Earlier articles in ES&T (1, 2) have described some of these activities. New, imaginative, and workable approaches to resolving environmental disputes do exist today and are being implemented with considerable success in a number of site-specific cases. Through the anticipation of disputes early in the decision-making process and negotiation of issues using nonadversarial processes, a growing number of environmental disputes are being managed more effectivelv than in t h i past. Both federal and state’ decision making involve a public review phase, and developers must frame their plans with this review in mind. Malcolm Rivkin, one of the more successful project mediators, comments that:
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Adoption by local and state government of the environmental impact statement (EIS) as a tool for reviewing projects has done much to facilitate accommodation and compromise.The EIS can set the stage for negotiation in project design and management and, most important, can remove some powerful constraints to governmental and citizen participation in the negotiation process (3). But EIS disputes are frequently litigated on procedural questions, thus obscuring the economic and environmental issues. Alternative processes, on the other hand, focus on the identification of issues and on consensual agreement; these include conflict anticipation, fact finding, consensus building, and mediation. All of these are known generically as nonadversarial forms of environmental conflict management, although each involves participation by groups and persons who are adversaries. ROMCOE, Center for Environmental Problem Solving in Boulder, Colo., effectively used conflict anticipation in dealing with potential environmental disputes in Delta County, Colo. In that instance, citizens foresaw
the development of mining in a rural, agricultural area and were wary of a bitter conflict between competing business interests and between public and private concerns as rapid growth took place. Interestingly enough, many local, elected officials were indifferent to the problems which loomed ahead, and several actively opposed a conflict anticipation project. The Delta County effort began with a workshop in early 1978, attended by 270 participants who identified and ranked local concerns and developed a series of recommendations for improving the county’s environment. As the project proceeded, participants began to realize they were speaking as a community for the first time. Susan Carpenter and John Kennedy of ROMCOE described this process as follows: They learned that their basic goals are the same. In addition, communication and cooperation were created at various levels of government and among differing interests: consistent, factual information was provided at one time to all parties: and specific plans for action were developed by the citizens themselves, not by corporate or governmental outsiders ( 4 ) . The lessons, according to ROMCOE, were that: Participants must be fully involved in all aspects of the project; legitimacy must be maximized by seeking endorsement of key leaders and groups; all major views must be represented; advisory groups can be useful, both to guide the process and to evaluate the work: and time is an important element-participants need an adequate opportunity to work out their differences. As a result of the Delta County project, efforts are now being made to preserve the agricultural economy base of the county and to plan for rapid growth on a countywide basis. Citizen forces are monitoring the environmental impacts of development while the orderly management of mining is being encouraged ( 4 ) . A closely related process, jointfact finding, aims at narrowing the issues of the dispute. A neutral third party identifies the disputants’ positions and Volume 15, Number 2. February 1981 151
assists in reaching agreement on data and on premises. Generally, the antagonists are asked to articulate their positions. A document is then drafted identifying original positions, changes in positions, and differences which remain.
Finding common ground Consensus building is another dynamic process that has been employed in reaching environmental decisions. Here, a neutral facilitator establishes communication among parties representing all important interests at stake and guides the parties towards agreement on critical facts and issues. RESOLVE’Sfirst field project, involving wilderness issues under the Roadless Area Review and Evaluation program of the Forest Service (RARE 11), involved 75 different interest groups. The parties were required to establish their own guidelines for meeting procedures and to accept responsibility for the negotiating process leading to consensus. One hundred percent consensus is an elusive target; yet in working toward it, significant substantive agreement can often be reached. The process helped to identify positions and issues, and established a network of communications between antagonists which previously did not exist. We learned several important lessons from the RARE I1 experience. These included: the difficulty in putting together project funding in time to carry out an effective program of consensus building; the importance of providing sufficient time for participants to seek agreement; the need for a set of fairly limited issues (in RARE I1 we were dealing with a complex range of issues in 234 different roadless areas); the limitations upon a completely nondirective process and the value of background papers for participants; and the difficulty of achieving consensus in the face of impending legislative battles over the same issues faced by the participants ( 5 ) . Another effort of consensus building was in the National Coal Policy Project, under the administrative guidance of the Georgetown Center for Strategic and International Studies. 152
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Two major parties, industry and environmentalists, struck a number of important bargains. A leading labor mediator, Fr. Francis X. Quinn, moderated the sessions, using somewhat more directive techniques than those employed in the RARE I1 Project. To facilitate the attempt to reach agreement, a set of negotiating principles known as the “Rule of Reason’’ was adopted. The principles included the avoidance of dogmatism, free sharing of data, agreement not to use delaying tactics, and operating with integrity as the first priority (6, 7). More recently, RESOLVE conceived and carried out a consensusbuilding and problem-solving exercise dealing with radioactive waste management policy. In that instance, RESOLVE directed its effort toward improving waste management decision-making processes and institutions, rather than striving for agreement on scientific and technical issues. Leaders from industry, and environmental and public interest groups were selected to represent the broad range of public and private concerns. All workshops were designed to seek consensual resolution of mutually recognized problems; RESOLVE acted as neutral convenor and process manager. The forum participants, in spite of strong political differences, reached consensus on the following detailed statement of the objective for a successful radioactive waste management program: The objective of a radioactive waste management program is to develop, without undue delay, a politically and technically legitimatemeans of isolating existing and future radioactive wastes from military and civilian activities from the biosphere so that no significant threat is posed to public health and safety over the period of hazard. Because of the large and still growing inventory of existing wastes, we believe that this objective should be vigorously pursued regardless of whether as individuals we
believe the generation of nuclear power should be expanded or phased out. Some of us remain to be convinced that the means will be found to dispose of waste in a manner that can be deemed safe enough, and politically acceptable enough, to sup-
port a large and continuing nuclear power industry; some of us are fully convinced that such means are already at hand and merely wait to be demonstrated. Regardless of the diversity of our views, and recognizing the uncertainties in calculated and perceived risks associated with geologic disposal of military and commercial wastes even at carefully selected sites, we agree that developing such disposal will be much preferable to continuing indefinitely with temporary solutions. Therefore, we believe that every effort should be made to develop permanent means of waste disposal as expeditiouslyas possible, consistent with good science and engineering and democratic procedure (8).
The group then adopted the following criteria for evaluating proposals for waste management and guiding decision making: 1. Federal and state officials, accountable to the public via the elective process, must exert active leadership in waste management decision making. 2. The federal government, particularly the executive branch, must have a formal, coordinated, and coherent program with clearly defined roles and responsibilities. 3. The extent of state authority in the decision-making process and the procedures for its exercise must be formalized at an early stage. 4. Information about the process, programs, findings, and decisions concerning radioactive waste management must be actively provided to the public in a way that is understandable and complete. 5. The public must have an early and continuing opportunity to present its views to decision makers, and must have reasonable assurance through a documented response that its views are carefully considered before decisions are reached. 6. Scientific and technical programs and findings must be fully reviewed within the informed scientific and technical community. 7. The integrity of the decision-making process must be evident. 8. There must be mechanisms for the resolution of disputes. 9. There must be a reasonable time frame for carrying out each element of the process ( 8 ) . As this article is written, plans are being made to continue this project in view of the failure of Congress to enact
Where major interest groups have been able to reach agreement, the resulting powerful social sanctions have tended to reinforce the agreement.
tion is a process often resorted to after an impasse has been reached, the issues have been narrowed, and the third party has determined that the case is mediable. A commitment to act in good faith during negotiations, and to implement any agreements made, has proved to be a prerequisite to successful mediation efforts. Two recent site-specific controversies illustrate the mediation model. The first-involving a landfill proposal by the City of Eau Claire, Wis.-was successfully mediated by the Wisconsin Center for Public Policy. The case involved three levels of government and a number of environmental and citizen groups; the issues included noise and traffic considerations as well as recycling possibilities. Opponents had brought suit and filed administrative proceedings to stop the proposed fill. Wisconsin’s Public Intervenor suggested mediation as an alternative. Mediators Howard Bellman and Ed Krinsky agreed to enter the case and, after meeting with governmental agencies, obtained an agreement to consider a number of alternative sites more carefully. Next, the mediators arranged a series of meetings to work out agreements covering construction, use, and lifetime of the landfill. This phase was preceded by meetings and telephone conferences with all of the concerned parties to explain mediation, ascertain their positions, and discover their “bottom-line” negotiation positions. The dispute was finally settled with a detailed agreement which allowed the landfill to proceed, but limited hours of operation to reduce noise; required the city to build a transfer station for compacting waste; and set Some successes forth a cooperative plan for siting fuPerhaps the best known of the con- ture landfills ( 1 1 ) . flict resolution processes is mediation, The second mediation effort inwhich has been used many times dur- volved environmental questions assoing labor relations to avoid costly ciated with the proposed conversion of strikes. Here, a third party mediator the largest power plant in New Enworks to focus discussion and suggests gland from oil to coal. Conversion was innovative alternatives that may have ordered in 1976, but was opposed by been overlooked or may not have sur- EPA and the Massachusetts Departfaced because the parties were fearful ment of Environmental Quality Engithat offering concessions would be neering on the basis of threats to the viewed as a sign of weakness. Media- air quality in the plant’s vicinity.
any comprehensive legislation to deal with high-level radioactive waste. Meanwhile, the Keystone Center in Colorado undertook a consensusbuilding project dealing largely with the radioactive waste problem. During the last three years, the center brought disputants together for a series of symposia and workshops, seeking to discover areas of consensus for possible policy recommendations. The group was able to concur on the major points of a specific technical strategy for the isolation of high-level radioactive wastes. A number of follow-up workshops discussed specific issues, and a surprising amount of agreement was reached. Both the RESOLVE and the Keystone efforts met with considerable success, demonstrating that basic value differences need not preclude working toward joint resolution of major environmental issues (9). The Conservation Foundation, too, has experimented with consensus building, particularly in the toxic substances field. A preliminary report was written by a technical panel that included representatives of industry, academic institutions, and public interest and environmental groups. The report outlined a basic framework for a testing program for potentially toxic chemical substances. Further meetings broadened the participation and allowed discussion of the elements in the report; written comments were later added to the report itself. The development of the report allowed individuals with diverse perspectives to explore areas of agreement and clarify areas of disagreement, working together on an issue of common concern (10).
Earlier, the Center for Energy Policy had studied the conversion problem and in 1976 had warned of such obstacles to conversion and suggested the need for dialogue. David OConnor of the center then held a series of meetings in 1977 and 1978 which eventually led to a series of agreements on how the conversion might he carried out without unduly jeopardizing air quality. In particular, it was agreed that: Planning would proceed toward permanent conversion rather than a test project. Control of particles would be given priority over sulfur dioxide. Scrubbers would not be required, conditional upon consideration being given to electrostatic precipitators. The plant could burn 1‘/2% sulfur coal, but limits on particles would be held to those attainable with low-sulfur oil (0.08 Ib/MBtu). The terms of the agreement would be incorporated in the state’s regulations, and a memorandum of agreement and a final report would be signed, with the conditions approved by EPA. DOE officials estimate that some $20 million in fuel costs were saved in the conversion while environmental quality remained virtually the same (12). Thus, in two very different situations, mediation proved successful. It is important to note that in each instance both the issues and the effects were localized, and the agreements reached were carefully reduced to writing. In each case, also, there were strong public policy incentives to reach agreement. In Eau Claire, there was a clearly demonstrated need for an enlarged capacity to handle the public’s waste. And a t Brayton Point, national energy policies were being translated into action by a much needed switch from oil to coal. It should be noted that none of these dispute anticipation or resolution processes are legally binding on persons who may be interested in the outcome. However, where major interest groups have been able to reach agreement and have been willing to Volume 15. Number 2. February I981
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There is likely to be growing disenchantment with litigation as our nation becomes more sophisticated in its quest for a better environment.
enter into a contract following the consensus effort, the resulting powerful social sanctions have tended to reinforce the agreement. settlements negotiated through consensus-building efforts provide the setting for a healthier postdispute relationship between the former antagonists, and can result in the creation of a network of communications between the parties that did not previously exist. While most of what I have discussed thus far pertains primarily to meeting processes, technological advances can also be incorporated into environmental conflict management procedures. Thus, the Western Energy and Land Use Team, working out of Fort Collins, Colo., used a dynamic computer model to assess environmental scenarios and remedial measures.
Similarly, researchers at MIT have undertaken preliminary studies on the use of television to elicit public response to community and environmental conflicts (13). The American Arbitration Association has experimented with the use of computers in analyzing environmental data in Bergen Township, N.J. (14). But although computer models and communication networks for conflict management offer needed new tools, the work of individuals and their supporting organizations remains the key to the success of cooperative decision making. \
An institution? Institutions shape the planning, funding, and implementation of policy. In the area of environmental affairs,
activities in Calif Potential for media
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institutional arrangements have played a major role both in exacerbating conflict and in providing needed organizational reforms in developing intelligent policy. The institutionalization of environmental impact statements is one of the major structural innovations in the planning and development process, and is even more effective since the addition of scoping sessions to identify interests and major issue areas at an early stage. The Office of Permit Assistance in California’s Office of Planning and Review seeks to facilitate movement through California’s bureaucratic processes. The Colorado Joint Review Process has been extremely successful in coordinating federal, state, and local decisionmaking processes associated with major energy and mineral resource development in the state (15). On the other hand, California’s attempt to speed up the siting of a liquefied natural gas terminal through preemptive legislation generated intense opposition which has indefinitely postponed site selection ( 1 6 ) . How and when environmental conflict resolution techniques will be incorporated into our institutions is a matter for continued discussion and experimentation. Congress is considering a new bill, the Regulatory Negotiation Act of 1980, that would create a pilot program to encourage alternative processes for establishing regulatory policy. Voluntary negotiation commissions would be formed, with balanced representation from industry, public interest groups, labor, and state and local officials. These commissions would negotiate consensus recommendations on regulatory policy, to be reviewed by federal agencies and given to the Congress. One cannot discuss institution and structure without dealing with the question of funding. The professional credibility of conflict management is dependent on the neutrality of the process manager. Association with one of several competing interests can often undermine conflict resolution efforts, although this is not always true. Funding today for conflict reso-
lution comes largely from foundations, industry, and government, largely on an ad hoc basis. Funding sources for mediation and other related processes need to be institutionalized and accepted as legitimate by parties to environmental disputes. Another structural need in dealing with conflict resolution is the institutionalization of compensation mechanisms to address the external costs associated with the disruption of the environment. Again, innovative approaches to policy management can establish equitable remedies before disputes begin. Thus, the Outer Continental Shelf Lands Act creates a scheme of strict liability and compensation for oil spills and creates a fund from which damages can be paid. If the field of environmental conflict resolution is to become permanent and useful, those in the profession must develop a clearer understanding of what it means to be a part of the field and of what techniques and processes are available in different kinds of factual situations. I n other words, the profession must look in a mirror and learn more about itself. Recently, a t a meeting sponsored by the Ford Foundation in MI. Kisco, N.Y., many of the individuals and organizations working in environmental conflict management met to discuss problems of institutionalizing the field. It was agreed that a first step was to improve relationships and understanding within the profession. Those present requested RESOLVE to serve as a communications link to assist in this process, and to expand upon its present role in that respect. Beyond that, RESOLVE is undertaking a major three-year review of environmental decision making which will culminate in a number of specific recommendations for improving both processes and institutions through increased use of mediation, consensus building, and other tools for conflict management. Promise and problems Will the promise of cooperative decision making be fulfilled? A growing number of professionals, environ-
mentalists, industry leaders, and government officials say it will. Professional organizations, such as the National Association of Environmental Professionals, the American Society of Public Administrators, the Society of Mining Engineers, and the American Planning Association, have featured conflict resolution in recent conference programs and publications. Environmentalists and industrialists have been increasingly willing to sit down together, learn more about each others’ views, and work out compromises. And government is showing healthy signs of supporting additional experiments in the conflict-resolution field. There is likely to be a growing disenchantment with litigation as our nation becomes more sophisticated in its quest for a better environment. This, in turn. will lead to increased reliance upon cooperative decisionmaking processes. Environmental conflict management must soon find more readily accessible funding sources on an institutionalized basis. Clearinghouse and network services must be improved to assist in pulling together professionals, funding mechanisms, and those who will be interested in using environmental conflict management techniques to solve their own difficulties. And training programs must be developed. grounded in both theory and practical experience, to provide new practitioners with the necessary skills to meet a growing demand. None of these needs will be easy to meet. Yet I am optimistic that negotiated settlements, often facilitated by neutral intervenors, will increase and that as court dockets continue to lengthen and paperwork becomes a greater burden, there will be growing acceptance of new conflict-resolution techniques. If this scenario becomes fact, environmental management will profit greatly, and more cooperative decision making will be achieved. Acknowledgment I would like to give credit to Wendy Gleason, a California Tomorrow intern with RESOLVE, for her assistance in the research and editing of this article.
References (I) McCarthy. J. E. Enuiron. Sci. Tpchnoi. 1976, IO. 40.
I21 Straus. D. B. Enuiron. Sci. Technoi. 1979.
i j . 661. ( 3 ) Rivkin. M. D.. “An Issue Report: Negatiated Devclopment: A Breakthrough in Environmental Controversies”: Conservation Foundation: Washington, D.C., 1917. (41 Carpenter. S. L.: Kennedy. W. J. D. “ROMCOE Case Studies”: ROMCOE Boulder. Colo 1979~. ( 5 ) “RARE II Methodology Report”: RESOLVE Pala Alto. Calif., 1918. (6) Wesrel. M. R.. “The Rule of Reason: A New Approach to Corporate Litigation”: Addison-Wesley: Reading. Mars., 1976. (7) Murray. F. S.. Ed. “Where We Agree”: Westview Press: Boulder. Cola.. 1918. (8) “Nuclear W a ~ t c Management Proccrs Review Forum Final Report”: RESOLVE Palo Alto. Calif.. 1980. (9) “An &.crvicw ofthe Keystone Radioactive Waste Management Prwess”: Keystone Center: Keystone. Calo.. 1980. ( I O ) “Approaches for Developing Tcsting Guidelines under the Toxic Substances Control Act”: Conservation Foundation: Washington. D.C.. 1978. ( I I ) Sampson. C. Wis. Nor. Res. 1978. Scpt. (12) OConnor. D. Emiron. Conwnsus 1979. July. (13) Susskind, L. Emiron. Conscn.sus 1979. March. (14) Straus. D. B.; Clark. P. B. “Bigger Prablems Need Better Tools: Guidelines to Identify. Manage and Resolve Environmental Disputes.” Prepared far the annual conference of thc National Association of Environmental Professionals. Washington, D.C. April 21-23, 1980. ( I S ) Fisher.G. K.“TheColoradoJoint Review Process: A Better Way“; Cola. Dept. of Natl. R 19xn ... ...~ . .~... .
( I 6) Susskind. L.: Cassella. S. R. EiA Rwicws 1980, 1 . 9 .
John Busterud is the president of R E SOLVE, Center for Enoironmental Conflict Resolution. and a special adviser on enuironmenral matrers to the Aspen Inslilulefor Humanistic Studies. He preuiously served as chairman of the President’s Council on Environmental Qualiry: before that. he practiced law in Son Francisco and.from 1957 to 1963. sewed in the Calijornia State Assembly. M r . Busrerud is a graduate of the Yale Law School. Volume 15. Number 2. February 1981
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