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Volume 17, Issue 7 — July 1987


Standing Committee Symposium . . . : (WELCOME)

by Nicholas C. Yost

Welcome to the 15th Annual Airlie House Conference on the Environment.

Something, as they say, is going on, and we of the Standing Committee are not sure what it is. We seek, therefore, to explore the larger significance of a number of seemingly disparate events.

Standing Committee Symposium . . . : (The Special Master as Environmental Mediator)

by Lawrence Susskind

I would like to present a framework that may help to answer the question, "What is going on out there?" It may also help to gather together some of these disparate stories, like the Environmental Protection Agency's (EPA's) negotiated rulemaking, Clean Sites's coalescing efforts at Superfund1 sites, efforts to mediate land use and facility siting disputes, and statewide policy dialogues.

Imagine you were drawing a chart. Across the top put three columns: legislative, administrative and judicial. Down the side put three rows: local, state and national. What is going on, in my view, is an effort to fill in those nine boxes with experimental test results. Through various demonstrations and pilot projects we are attempting to determine whether it is possible to supplement (not replace) conventional dispute resolution procedures with more consensual approaches to dealing with differences. These experiments focus on public disputes over the allocation of fixed resources, the setting of standards, and the setting of policy priorities.

Standing Committee Symposium . . . : (Standard Setting by Consent: A Case History)

by Lawrence Susskind

The issue of standard-setting by consent is an important one. In this talk, I would like to describe a case in which I served as a facilitator or mediator in such a consensus building effort. The case involved the siting of a resource recovery—or trash-to-energy—plant in New York City. The issue of standards arose, because a number of people, especially those in Brooklyn who lived next to the proposed site, decided that this kind of facility was not safe. Barry Commoner, a respected scientist and environmental advocate, supported their view. Every time you say "resource recovery," he thinks "dioxin." For some, the first term cannot be used without mentioning the second.

In the last few years, Commoner has been effective in convincing people who already oppose the siting of such facilities that resource recovery facilities pose a dioxin threat. He took advantage of New York's effort to solve its trash problem (by building a resource recovery plant, or a series of them) to bring his dioxin concerns to the public. He did so very effectively.

Standing Committee Symposium . . . : (Negotiated Rulemaking: C. Industry—Environmentalist Negotiation: The FIFRA Experience)

by Scott Ferguson

I am not an expert at negotiation. I did participate, however, in a recent effort to amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).1 Many people feel that this effort was a significant step toward resolving some of the major differences between our industry (the agricultural chemical pesticide industry) and the environmental community. I was asked to speak about these negotiations.

Over the last two years, our industry has negotiated with a coalition of about 40 environmental and health interest organizations, including the Natural Resources Defense Council (NRDC), Sierra Club, AFL-CIO, and Ralph Nader's Congress Watch. We were able to reach an agreement with the coalition on a number of very troublesome issues, which is now in Congress being considered for legislation.

Standing Committee Symposium . . . : (Negotiated Rulemaking: D. Negotiated Rulemaking at EPA: The Examples of Wood Stove Emissions and Truck Engine Emissions)

by David D. Doniger

I have been involved in two of the experimental U.S. Environmental Protection Agency (EPA) regulatory negotiations. The first had to do with setting penalties for the truck makers who make engines that do not meet standards. The second, in which I am still participating, involves drawing up a standard for new woodstoves. I have also been involved in traditional settlement discussions in the context of lawsuits, several of which have been successful, and a couple of which are still in the works.

I would like to turn to the two regulatory negotiations in EPA's Regulatory Negotiation Pilot Project. Initially, we reacted to emergence of this project with a cry of: Oh, no. Here comes another "bubble" concept, another regulatory reform that is being pushed by an office with a bureaucratic mandate to produce a result regardless of what it runs over on the way. God forbid that it should pick up steam.

Standing Committee Symposium . . . : (Private Watchdogs: Internal Auditing and External Enforcement—Three Perspectives: A. Environmentalists' Citizen Suits)

by Bruce J. Terris

Up to now you have been hearing of the brave new world in which nice people sit down and talk together, perhaps under the leadership of charming mediators and facilitators, and when they are done, there will be a solution. For my part, I will be talking about the old world, the use of power. It is judicial power, but, essentially, one group of people imposing an outcome on others.

I am talking about situations in which people have violated federal laws, and the question is: what should be done about it? What should be done to stop them, and what should be done to penalize them for the actions that they have taken?

Standing Committee Symposium . . . : (Private Watchdogs: Internal Auditing and External Enforcement—Three Perspectives: B. Industry's Self-Policing)

by W. Samuel Tucker

When we consider the respective roles and responsibilities of government and the private sector in maintaining compliance with the laws of the land, it becomes evident that there are big stakes on all sides. This includes the public, whom the laws are intended to protect, and who must pay for this protection in the end.

Several years ago a man by the name of Charles Schultze wrote an insightful little treatise called "Public Use of Private Interest" (Brookings Institute, 1977). Schultze pointed out the great importance of maintaining the proper balance between government and the private sector in achieving desired social goals and of the adverse consequences of having this balance shift too far one way or the other.

Standing Committee Symposium . . . : (Private Watchdogs: Internal Auditing and External Enforcement—Three Perspectives: C. The Government Perspective)

by Thomas E. Hookano

I would like to discuss the respective roles of the federal government and private citizens in the enforcement of environmental laws. This is an area that raises a host of questions, some pragmatic and some more philosophical. In general terms, who should be in the driver's seat with regard to environmental enforcement? Should it be the federal government (along with its state counterparts), or should it be private persons bringing suits under the various citizen suit provisions? Did Congress really intend in enacting those provisions that citizens should stand in the place of government as the enforcer of environmental statutes or did Congress intend that there be shared responsibility between citizens and the government in the enforcement of environmental laws?

Another perplexing and hotly debated question is, should government be bound by judgments in citizen suits? Although the environmental statutes generally require that a citizen notify the government 60 days before bringing suit, most statutes do not require that a citizen-plaintiff serve the government with copies of complaints, other papers, or even consent decrees.1 To the extent that the government would be bound by the judgment in a citizen enforcement action, the government's priorities are in danger of being severely interrupted, and its attention focused on a narrower set of interests.

Standing Committee Symposium . . . : (Private Facilitating and Adjudicative Functions: A. Superfund Disputes and the Role of Clean Sites, Inc.)

by Sandra M. Rennie

The Superfund1 statute, while lacking an explicit provision on the subject, is a law that lends itself well to alternative dispute resolution (ADR). The nature of the disputes as well as the appearance of the same parties in many of these cases give rise to an interest among the parties in being able to maintain ongoing relationships. Also, there are features in the law itself that create practical problems that demand intensive resources in a short time.

I would like to review the features of Superfund, identify the circumstances that tend to inhibit settlement short of the courtroom door, and then describe how Clean Sites is delivering a service that is specifically designed to eliminate or reduce these apparent stumbling blocks.