Nationwide Study Identifies Barriers to Environmental Negotiation

Andy Sachs

In August 1982, the U.S. Geological Sur- vey (USGS) and Council on Environmen- tal Quality (CEQ) completed a five year, nationwide experiment with environmen- tal negotiations. Nine on-going environ- mental disputes were selected by an in- terdepartmental advisory committee for lesting new dispute resolution procedures. Although few of the attempts to resolve disputes through mediation were success- ful, the project made three contributions useful to environmental professionals:

�9 It called attention to a long list of 'obstacles that prevent more widespread application of environmental negotia- tions and made recommendations for lowering those barriers.

�9 It ini t iated training workshops to teach federal officials the techniques and uses of environmental negotiation.

�9 It documented, in six publications, new processes and combinations of skills for applying environmental nego- tiations on the federal level.

Background of the Project The widened base of public concern in the late 1960's over pollution and natural resource management created pressures on federal agencies to increase public participation in environmental decision making. People affected by resource de- velopment or declining environmental

qual i ty demanded to be heard, to be in- volved in decisions, and to be compensat- ed for damages. By the 1970's, new and amer~ded environmental statutes placed mor~: of the power to make, as well as block, decisions in the hands of a relative-

A G E N D A ly large number of governmental bodies and community organizations. G

An overwhelming number of suits E were being brought under the new envi- ronmental laws, especially the National N Environmental Policy Act (NEPA). At D this time, the American Arbitration Asso- ciation (AAA) was besieged by peoplein A search of guidance for resolving environ- mental disputes using nonjudicial means. There was, at that time, no established neutral territory where people could con- fidently explore their differences in a way that would lead to mutual accommoda- tion. New methods of data handling, pre- sentation, and analysis were needed to permit parties having an active stake in the resolution of an issue to participate constructively in any final decision.

Donald B. Straus, former president of AAA and current director of its Re- search Institute in New York City was in- terested in field testing his theories tff en- vironmental dispute resolution. In addi- tion, he believed that environmental is- sues were an important new area for AAA activity. In 1976 he met Dr. Ethan T. Smith of the USGS who was working in that agency's (now el iminated) Re- source and Land Investigations (RALI) program. RALI was responsible for de- veloping methods for the bureaus and of- rices within the Department of the Interi- or (DOI) to work together to fulfill DOI's mandates to foster and regulate natural resource development. From this perspec- tive, Dr. Smith saw a growing need with- in the federal government for better pro- cesses for resolving environmental dis- putes. In particular, Dr. Smith saw a constructive role for RALI in developing new methods of environmental conflict management.

In 1977, AAA proposed to RALI that it conduct a research project that would:

�9 identify existing or potential dis- putes in several areas of federal activity caused by the conflict between policies

Emironmental Impact Assessment Re~ie~', V. 3, N. I 01'95-9255/82/0300-0095503.00/0 �9 1982 Plenum Publishing Corporation

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for environmental protection and eco- nomic development or energy resource expansion;

�9 select from those conflicts several cases which had the potential for test- ing new procedures under live condi- tions that might result in resolution prior to NEPA litigation;

�9 obtain agreement from parties in- volved in approximately five specific conflicts to participate in a dispute res- olution process;

�9 provide draft materials in the form of a handbook to aid in the identifica- tion, management, and resolution of environmental conflicts; and,

�9 test conflict management procedures on the disputes in which the partici- pants had agreed to negotiate their dif- ferences. The dispute management, is- sue analysis, and resolution approaches outlined in the draft handbook were to be tested and revised for continued ap- plication by federal and state environ- mental agencies.

The Council on Environmental Quality and RALI contracted for the study. AAA selected Clark-McGlennon Associates, a Boston-based environmental consulting firm, to assist on the projec I.

Selecting Disputes for Mediation An advisory committee was formed at the outset of the project to help identify con- flicts for future study. The advisory com- mittee consisted of representatives of bu- reaus and agencies within the DOI and from CEQ. The researchers from AAA and Clark-McGlennon Associates, and the contract monitors from USGS and CEQ joined the advisory committee in proposing and choosing among disputes. Seven criteria were used in assessing can- didate disputes. The advisory committee and research team hoped to select situa- tions where:

�9 a reasonable time frame existed for resolving the dispute,

�9 identifiable representatives for each party to the dispute were available,

�9 the conflict involved complex data illustrating the applicability of media- tion in resolving a dispute with highly technical problems,

�9 the responsible officials would agree to participate, and

�9 the findings about mediation tech- niques would be transferable to other c a s e s .

Nine cases were finally selected for intensive investigation. They were diverse in respect to regional location, the pro- posed action around which the dispute had arisen, the types of government activ- ity involved, the kinds of interests a t stake, and the parties involved, and the issues that were in dispute. The nine cases were:

�9 Conversion doned railroad bia, Missouri. Lead agency: and Recreation

of 8.5 miles of aban- right-of.way in Colum-

Heritage Conservation Service.

�9 Construction of the Southern "lqer E x p r e s s w a y t h r o u g h C a t t a r a u g u s County, New York. Lead agency: U.S. Depa r tmen t of Transportation.

�9 Planning of a regional wastewater treatment plant in New Milford, Con- necticut. Lead agency: U.S. Environmental Pro- tection Agency.

�9 Preparation of a multipurpose river basin management plan for the Yampa River in northwest Colorado. Lead agency: U.S. Fish and Wildlife Service.

�9 Land use planning for the Indiana Dunes Nat iona l Lakeshore on the southern shore of Lake Michigan. Lead agency: National Park Service.

�9 Leasing of phosphate mining tracts in Idaho. Lead agency: U.S. Geological Survey.

�9 Herb ic ide sp ray ing and t imber management in Oregon forests.

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Lead agency: Bureau of Land Manage- ment.

�9 ,Permitting off-the-road-vehicle use in the California Desert Conservation Area. Lead agency: Bureau of Land Manage- ment.

�9 Processing exemption petitions un- der the Fuel Use Act. Lead agency: U.S. Department of En- ergy.

Iden t i fy ing Obstacles to Conflict Management

The parties to these disputes reacted to the prospect of mediation with responses ranging from enthusiastic cooperation to polite but unmistakable unwillingness to cooperate or participate. AAA and Clark- McGlennon Associates were able to make some contributions toward conflict resolu- tion. In analyzing these cases, both suc- cesses and failures, the research team de- veloped new insights into the difficulties of applying conflict management to envi- ronmental issues.

All the government agencies touched by this project had either a direct or sec- ondary interest in the cases selected. Some were responsible for administering regulations or for establishing standards, and therefore were concerned about the effect of the process on their authority. Others were concerned with the impact on energy supply or environmental degra- dation. All were operating under formal, often mandated, procedures for carrying out their missions. RALI and C E Q in particular had to be sensitive to any im- pacts that the dispute would have on oth- er parts of DOI, on the Office of the President, and on environmental constitu- encies wi th in and outs ide the govern- ment. The research team concluded that no agency can be expected to mediate, or even under take a conflict managemen t study, because agencies are themselves partisans.

Other factors contributed to the fed-

A G E N D A eral agencies ' reluctance to allow media- tion of disputes in which they were in- volved. The team found that:

�9 Much of the information about the collaborative dispute resolution process available to federal officials is either inad- equate or false.

�9 Federal officials feel that these new techniques mean more work, loss of con- trol, legal challenges, and high risks.

�9 Federal officials are unable to compre- hend the techniques or to assess their val- ues.

�9 The techniques are new and the ad- ministrative mechanisms for mediation are not yet part of the agencies ' regular decision-making processes.

�9 Federal officials fear that mediated set- t lements might be challenged under the Admin is t ra t ive Procedures Act. Also, some attorneys feel that the use of col- laborative procedures in the early stages of a case might weaken their positions in later court action.

�9 In m a n y cases, the agency has no money for mediation.

�9 There is a general belief that if "my agency puts up money for mediation, oth- ers will be suspicious" that the process will favor the sponsoring agency's posi- tion.

�9 There i s no precedent or case history upon which to base a decision to enter mediation.

�9 Interim case reporting - - a routine pract ice in both research and agency decision-making processes - - discourages parties from participating in negotiations by revealing interim positions used dur- ing bargaining.

In i t i a t ing Mediation: Respons ib i l i ty and Risk

A federal agency is not likely to initiate requests for environmental mediation, es- pecially if this initiative - - which is likely

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D A to come from middle echelons of a federal agency hierarchy - - has not received strong and continuing support from the very top levels of the agency. Without the support of his superiors, a middle echelon government official cannot afford to take risks on programs with uncertain out- comes that do not conform to an agency's mandated procedures. It is also difficult, operating from middle levels, to commu- nicate across jurisdictional boundaries. The protocol of communications in the government or in any large organization is rigidly defined and closely observed. Departures from the established lines of communications can create shock waves throughout the organization that will jeopardize careers and certainly interfere with any innovative efforts. In general, it is far easier and more acceptable to com- municate down the organizational hierar- chy. Such communication can branch out and be directed to all those concerned.

The advisory committee served as the focal point for overcoming the bar- riers encountered during the project. Re- ports and studies were circulated to this commit tee and there were numerous meetings with individual members on specific problems. Through these events, an understanding of the alternative ap- proach being developed by the research team was disseminated throughout DOI. This consciousness-raising within the fed- eral establishment was extended through training programs and interim published reports.

Training Programs

The training program grew out of expres- sions of interest by people within agencies to learn more about dispute resolution concepts and techniques. Four workshops were developed: two for the National Park Service, one for the Heritage Con- servation and Recreation Service, and one for the Office of Surface Mining. In addi- tion, workshops for the U.S. Geological Survey were initiated under this project and continued under another contract.

Approximately 150 people participated in the program which offered a combination of case studies, selected readings on me- diation and negotiation, lectures, small group workshops, and face-to-face prac- tice sessions with professional negotiators. Evaluations of each training session by the participants provided feedback to the research team on how to teach conflict management skills more effectively. Com- ments were overwhelmingly supportive of the education effort and reflected a desire and need for even more training in the fu- ture.

Pub l i shed Reports

In the course of this project five reports were prepared which present the findings and experiences of this study from the perspective of different members of the project team. Selected Readings on Conflict Management is a bound edit ion of the notebook used during the Heritage Con- servation and Recreation Service work- shop. It introduces environmental conflict resolution through the illustration of two concrete applications: an energy facility siting controversy in New England and the Columbia, Missouri railroad right-of- way dispute. This report presents conflict management vocabulary, an approach to evaluating conflicts, and some possible obstacles to implementation.

To provide a flexible means of com- municating their field experience, the re- search team produced a basic handbook, New Tools for Resolving Environmental Dis- putes, and a set of five Environmental Con- flict Management Working Papers. The pri- mary purpose of New Tools is to introduce environmental and natural resource offi- cials to different approaches to conflict management and how they might be used within the governmental framework. It describes recent disputes where consen- sus-building approaches have simplified complex environmental decision making and explains how this experience can be used by other federal officials. The Work- ing Papers describe conflict management approaches in detail and provide guid-

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ante on how a dispute resolution process c a n be designed. The editors include a short bibliography as an overview to envi- ronmental dispute resolution. In addition, each working paper has a bibliography of sources for further information on its par- ticular topic. The titles of the papers are: Managing Complexities, Selecting an Environ- mental Conflict Management Strategy, A Proce- dure for Assessing Environmental Disputes, En- vironmental Mediation in a Federal Agency, and Designing Effective Scoping Meetings.

In Managing Conflicts Over Economic Development in the Southwest Border Region John A. S. McGlennon and Julia Won- dolleck introduce the techniques available to developers, state and local officials, residents of communities and environ- mentalists who face conflicts over the en- vironmental and socio-economic impacts of economic development activities. The authors emphasize that concerned parties can use conflict management techniques within the traditional constraints of gov- ernment decision making. Two examples where mediated negotiation led to the

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resolunon of environmental disputes are presented: the Snoqualmie River Dam dispute in Washing ton s ta te and the Brayton Point power plant conversion dispute in Massachusetts. The booklet also has a bibliography of information on environmental negotiation and a directo- ry of organizations offering environmental dispute resolution services.

The project conducted a survey of NEPA officials who were asked how they avoided or resolved conflicts through CEQ's environmental impact statement scoping process. The methods that NEPA staff used successfully are discussed in Improving EIS Scoping: Federal Agency Exper- iences and Techniques. This report also in- eludes five case studies in which scoping techniques are assessed from a conflict management perspective. For contrast, the authors present one example of how an attempt to incorporate conflict man- agement techniques into a scoping pro- cess failed.

~These publicat ions have been re-

A G E N - D printed by the Institute for Environmen- tal Negotiation. Orders and inquiries should be directed to: Institute for Envi- ronmental Negotiation, Campbell Hall, University of Virginia, Charlottesville, VA 22093.

Recommendations

In its final report, the research team sug- gested five ways in which environmental conflict management could be studied and applied in the future:

1. Environmental dispute resolution efforts should be further document- ed in order to provide case histories and records of precedents to federal officials. A proven track record would lower the risks to a middle level man- ager initiating a request for mediation. It would also give top management a basis for supporting such a request.

2. U p p e r and middle level off icials should receive training in and better information about conflict manage- ment. This would include training in conflict management skills, and educa- tion about collaborative processes and the costs and shortcomings of the tra- ditional adversarial approaches.

3. High level authorization and sup- por t for collaborat ive dispute reso- lution processes must be solicited. Any further research and applications must be initiated at the Cabinet level. There is a possibility that initiatives from the Office of the Secretary (or Administrator or Commissioner) might be insufficient. If, after further research this appears to be true, Congressional directive or Presidential backing might be appropriate prerequisites for subse- quent activities.

4. Dispute resolution centers should be established where skilled, neutral intervenors could be matched to the needs of particular parties and the issues they confront. A cooperative ef- fort by the federal government and pri- vate foundations could establish such centers, which would offer both phys-

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N D A ical facilities and personnel capable of administering cases, conducting train- ing programs, and encouraging devel- opmental research. The federal govern- ment could supply the conference fa- cilities and hardware to accommodate computer and other technologies while private foundations would provide the software, professional direction, and consultation. Among the characteris- tics which must be built into the cen- ters to make them effective are: a high level mandate supporting negotiation and mediation, neutrality, trained staff, a ready-to-use inventory of analytical and process techniques, non-threaten- ing ground rules to protect the inter- ests of all disputants, and sufficient funding.

5. Collaborative processes should be established as a routine administra- tive avenue through revised agency decislon-making procedures and en- abl ing legislation.

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pute resolution processes still remain, de- velopments in the field are promising. Environmental practitioners should con- tinue to try methods of resolving conflicts over environmental policies which utilize negotiations and, in the process, docu- ment their experiences - - successes and failures - - as lessons for others.

Laying the Groundwork I

This project represents the most compre- hensive effort yet to study environmental mediation from within the federal govern- ment. Although more resistance to medi- ation was encountered than had been an- ticipated, this study produced new in- sights into the barriers preventing wider application of collaborative methods for resolving environmental disputes. The six publications of the project team suggest innovative techniques and how they might be used within today's legislative and .administrative constraints. Increased training and the securing of high level support for future mediation experiments are two very important recommendations of the research team. Additional propos- als for neutral mediation centers outside the government and for new laws and ru- lemaking processes based on cooperation among all affected parties were made in the hope that institutions more amenable to negotiations can be created.

Although obstacles to more wide- spread applications of collaborative dis-

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