Is Environmental Alternative Dispute Resolution Working in America?

Robert F. Blomquist

The author is a Professor of Law, Valparaiso University School of Law, and a Visiting Professor and Scholar. The Australian National University Law School's Centre on Environmental Law (Australian Biodiversity Law) (Spring 2000). Professor Blomquist received a B.S. from the University of Pennsylvania (Wharton School), 1973, and a J.D. from Cornell University, 1977. Professor Blomquist can be reached at Robert.Blomquist@valpo.edu or (219) 465-7857. Professor Blomquist is Co-Sponsor of the Environmental Law and Policy Concentration at Valparaiso University School of Law. Professor Blomquist has published over 50 articles, essays, and book chapters on environmental law and policy, health law, torts, jurisprudence, and constitutional law. He has also co-edited three books on various subjects of law and policy. Professor Blomquist—having taught law or done scholarly legal research on four continents—has also served on numerous state and local governmental councils, boards, and panels, and consults on a regular basis on environmental and tort law issues. For the past year, be has served, and currently serves, as an environmental law and policy coordinator for the 2000 Presidential Campaign of Governor George W. Bush. The comments and views in this Dialogue do not necessarily express the views of the Bush Campaign.

[30 ELR 10661]

Alternative dispute resolution (ADR), in general, is a hot topic. None other than Attorney General Janet Reno observed that:

[An important] component of problem-solving requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Students need to learn in negotiation courses about the obstacles to negotiated agreement and the means for overcoming them.¹

Indeed, Attorney General Reno went on to note "the power of an apology sincerely given" and to observe how ADR can help clients "find longterm solutions to their problems, often solutions that no court has jurisdiction to provide."²

In October 1999, at a national conference in Indianapolis, Indiana, the Valparaiso University School of Law's Center on Dispute Resolution launched its new educational undertaking by holding its first annual conference.³ Over 100 conference attendees joined a panel of eight nationally recognized speakers to ponder the overarching question: Is environmental ADR working in America?

The purpose of this Dialogue is to provide a brief summary and commentary on the Valparaiso Conference.⁴ Discussion proceeds in the order that each speaker addressed the conference.⁵

As conference chair and moderator, I offered some initial theoretical and pragmatic thoughts on environmental ADR in the United States.⁶ My opening comment noted that "for a variety of interesting reasons, American disputants and their advocates have, during the last quarter of the Twentieth Century, pursued a panoply of alternatives to conventional—and strictly formalistic—trial processes of resolving civil disputes"; "indeed, since the late 1970s ADR . . . mechanisms like mediation, arbitration, non-litigative negotiation, mini-trials, and other procedures have been increasingly apparent in the environmental setting (where it is often referred to as EDR)."⁷ In paraphrasing the late, famous English poet and literary critic, T.S. Elliot, I opined that "as the idea of environmental [ADR] has become older," however, "it has become stranger—its patterns more complex."⁸

[30 ELR 10662]

My introductory conference remarks suggested "that 21st Century proponents and practitioners of [EDR] . . . need to provide a more robust account of five theoretical matters if [EDR] . . . is going to live up to its full potential."⁹ The five theoretical concerns I identified were (1) "ethical soundness," (2) "economic justification," (3) "political legitimacy," (4) "jurisprudential sustainability," and (5) "systemic coherence."¹⁰

First, with regard to the theoretical concern of "ethical soundness," I pointed out that confusion about whether or not environmental disputes should be properly viewed as chiefly disputes between private actors, or primarily public questions of right and wrong created an ethical tangle that has, at times, undermined the efficacy of EDR.¹¹ Second, I observed that the economic justification of EDR was problematic because relatively little attention has been devoted to the issue of whether or not EDR increases the net value of disputants and of society: "Wehave, at best, a primitive understanding of whether or not environmental ADR is efficient, or whether particular kinds of environmental ADR are efficient, or even, whether specific disputes resolved by environmental ADR techniques are efficient."¹² Third, with regard to political legitimacy of EDR, I referenced the ongoing, unresolved debate between ADR critics who contend that ADR tends to favor the more powerful party, thereby, resulting in lower quality justice, versus the supporters of ADR who claim that there is no authoritative proof that ADR results in substantially different outcomes than litigation.¹³ Fourth, I discussed the issue of jurisprudential sustainability by noting that "the widespread use of ADR in American society has developed and evolved over the last few decades in an almost willy-nilly fashion," with little serious thought being given to how moral concerns and legal concerns intersect in an alternative dispute setting, the rule of interpretation and precedent in an ADR context, and the interplay between adjudication and ADR.¹⁴ A fifth theoretical consideration I raised in my opening remarks at the Conference was that of systematic coherence; EDR "suffers from a decided tilt toward incoherence" in its overall approach to dispute resolution and this is exacerbated by "the pre-existing incoherent and fragmented substance of environmental law in America."¹⁵

Turning from theoretical concerns "that go to the heart of whether environmental [ADR] is working in America,"¹⁶ I addressed five pragmatic issues about the future prospects of environmental ADR: (1) "environmental ADR in cyberspace and beyond as a metaphor for the future of ADR; (2) training of neutrals and participants; (3) process choices and assumptions; (4) green psychotherapy, healing and psychobabble; (5) bargains, breaches and enforcement issues."¹⁷

First, substantially drawing upon the work of Professor Joel B. Eisen,¹⁸ I raised the problematic issue of technospeak (involving excessive technological optimism about how direct, written contact between disputants via the Internet can effectively resolve disputes) and identified three related concerns. First, "electronic communication is no substitute for the ability of face-to-face conversation to foster important process values of mediation."¹⁹ Second, "the predominantly written character of the on-line mediation proceeding would create communication breakdowns, particularly "ironic [since] mediator's claim disputants' inability to communication is precisely why mediation is necessary in the first instance."²⁰ Finally, the "use [of] computers for decision making raises fundamental concerns about societal ordering in the technological age . . . [since on-line] mediation could cede substantial authority for decision making to those who have familiarity with computers and their use."²¹

Second, another pragmatic issue that I emphasized at the conference, was the need to provide proper training to ADR neutrals (the mediators, arbitrators, conciliators, etc.) and participants (i.e., the environmental members of groups, local, state and federal governments, disputants, corporations, etc.), while making sure that environmental ADR neutrals have additional expertise in the complexities of environmental law.²² Third, my discussion addressed the importance of process choices and assumptions about various environmental ADR options (like mediation or arbitration), and how those process choices influence the outcome of various environmental ADR proceedings.²³ Fourth, I questioned the implicit, unproven, assumption that environmental ADR in face-to-face meetings with opposing parties is "'therapeutic' and 'cathartic,'"²⁴ pointing out that there was a lack of good empirical data on these assumptions in contradistinction to "touchy-feely psychobabble."²⁵ Finally, I completed my talk and my discussion of pragmatic issues involving environmental ADR by suggesting the need for further research about a two-pronged question: "First, whether and to what extent, ADR bargains or resolutions are complied with by the parties, and, second, what happens when there is a breach?"²⁶

In closing, I contended that "environmental ADR is no longer an infant industry phenomenon," but rather, was "entering middle age"; thus, "as with our own analogous 'midlife crisis,' environmental ADR is entering a period of necessary introspection and re-examination of basic principles."²⁷

[30 ELR 10663]

Rough Justice, Fairness, and the Process of Environmental Mediation

The next conference speaker was Attorney Diane R. Smith of Irvine, California,²⁸ who, in a fascinating multimedia presentation, talked about what she perceived to be—through her own extensive experience and reflection—the tremendous advantages of environmental mediation over environmental litigation. She commenced her conference paper by stating:

Martin Luther King said: "We must live together as rational human beings, or die together as fools". Well, with respect to environmental disputes, we are learning to live together as rational human beings, and we are doing it primarily through mediation. We are finding ways to eliminate or minimize litigation costs in what are almost invariably multi-party disputes, the costs of which have staggered involved parties for two decades. As a result of this rational behavior, we are also able to utilize our collective intelligence to minimize collective damages. The process of learning to live together as rational human beings necessarily involves reaching a consensus of how our disputes will be resolved, what a satisfactory settlement must look like, when reached, and how to assure that our agreements with respect to resolution are actually implemented.²⁹

The substance of Ms. Smith's presentation boiled down to six overarching themes. First, she explored the nature of environmental and public policy disputes, arguing that these disputes "are frequently multi-party, fact and expert-intensive and often high stakes experiences."³⁰ As a consequence of these particular dispute characteristics, Smith asserted that:

Recourse to courts or to agencies takes control out of the hands of the parties. Using a third party decision-maker leaves parties open to unpredictability and a decision which may result in unbearable harm to a party's interest, or at least a far more devastating loss than a compromise would have done. Relying on the courts or agencies for resolution of environmental disputes involves tremendous risks for the parties, and can destroy the possibility of cost effective, cooperative relationships among the most seriously affected by the underlying dispute. Litigation, or "proving up" on one's adversary is not well advised in the "joint and several" arena of environmental law. The interests of the parties are better served by reaching a consensus [rather] than reaching for a decision-maker.³¹

A second theme of Diane Smith's presentation concerned what she characterized as the wide panoply of "techniques that can be called upon to ease the pain of environmental disputes."³² These include the following:

* Getting the disputes out of the courts, or at least on "hold" while negotiations continue.

* Minimizing both individual and collective costs through cost sharing.

* Joint advocacy of and implementation of reasonable cleanup standards to reduce overall costs.

* Use of fair allocation frameworks which do not result in disparate treatment of or unfair effects on some parties to the benefit of others.

* Adjustment systems using ADR procedures (mediation, appeal rights, arbitration) to revise initial assessments of liability when new information is obtained.

* Avoidance of legal fees and other related "transaction" costs associated with litigation.

* Joint addressing of peripheral problems, such as issues with lenders and tenants, so as to take care of some problems which can be addressed without expenditures.

* Joint funding of technical support for research and preparation of documentation to alleviate health risk concerns.

* Avoiding intra-group "battles of the experts."

* Taking pains not to increase regulators' or the public's concern about the site(s) in question.

* Realistic expectations (i.e., eliminating any expectations of "gold-plated" cleanups) or windfalls in terms of damage recoveries.

* Sharing of experts, divisions of work among experts.

* Dealing with fear through effective media relations, public communications, employee education, and skilled and trustworthy consultants.³³

Third, Ms. Smith addressed "developing the necessary level of confidence in the process"³⁴ through such mutual measures as "making all disclosures necessary for the group to arrive at informed decisions about shares of responsibilities"³⁵; "group confidentiality to assure that disclosures are not used against the group or individuals by third parties"³⁶; "equal access among the parties to information"³⁷; "principled allocation frameworks based on all available information"³⁸; "clear understandings of future responsibilities"³⁹; and "[a] system for follow up and sanctions for nonperformance."⁴⁰

Fourth, at the heart of her conference discussion, Diane R. Smith talked about how "consensus building means going [30 ELR 10664] slow to go fast."⁴¹ In expounding upon this point, Smith articulated "numerous principles that create a sense of fair play"—matters that, she urged "at the very outset of the mediation process, mediators should focus on."⁴² Some examples of these "fair play" principles include:

* An understanding that the consensus-building process must be inclusive, not exclusive.⁴³

* A recognition that there is no sure answer to any given problem, and that solutions must be designed to meet the group's specific circumstances and needs.⁴⁴

* Confidence in the fact that trust and openness will move participants beyond bargaining over positions to exploring underlying interests, needs, and, eventually options.⁴⁵

* That the parties develop a carefully articulated statement of what worthwhile problem must be jointly solved.⁴⁶

* That group discussions be kept focused, relevant, and appropriately sequenced.⁴⁷

* The ability to handle intense emotions in public.⁴⁸

* Breaking deadlocks. This can be accomplished through bringing in an outside expert; treating obstacles as routine problems thereby "normalizing them"; showing that there is a "new ball game" where skepticism exists, reviewing past procedures and getting out of old roles and habits; getting the right people at the table; breaking the problem into smaller pieces; brainstorming new options; asking for alternative proposals; recording disagreements; asking parties to be more specific; and insisting on "trying one more meeting."⁴⁹

A fifth theme of Diane Smith's presentation was to provide a catalog of reasons why a disputant should participate in consensus-building through mediation.⁵⁰ The consistent refrain in her catalog of reasons was that if the parties do not broker mutually advantageous solutions themselves, the government is more than willing to step in to impose solutions.⁵¹

Finally, Smith expounded upon some practical ways to overcome resistence to consensus-building mediation.⁵²

Environmental ADR and Public Participation

J. Clarence Davies, Ph.D., director of the Center for Risk Management at Resources for the Future (RFF),⁵³ took the creative and novel approach in his conference remarks of looking at the state of environmental ADR as a "program evaluation question,"⁵⁴ while also suggesting "that public participation is a fruitful context or reference point in considering the successes and failures of environmental ADR."⁵⁵

Dr. Davies initially provided working definitions of "ADR" and of "public participation." With regard to ADR, Davies observed the broad meaning of the term; his essential description of ADR was "collaboration among contending interest groups instead of adversarial relationships," involving "consensus decision-making rather than judgments by authorities."⁵⁶ "Public participation is an even vaguer term than ADR,"⁵⁷ Davies noted. In an intriguing explanation, he opined:

In its most general formulation, public participation is any practice or activity in which individuals who are not government officials express their views on political or policy matters. It could include riots and revolutions as well as peaceful elections. I am employing the terms in its more common usage which excludes both elections and violence, and focuses on activities like public hearings, advisory committees, and writing letters to officials. These activities are characterized by being non-routine, in the sense of not being done on a schedule determined by law, but also by being within the bounds of legality.⁵⁸

The gravamen of J. Clarence Davies' conference remarks was a review of what he called the successes and failures of "environmental public participation"⁵⁹ as a surrogate for the performance of environmental ADR. Davies based his analysis on a 1999 RFF study of environmental public participation in the Great Lakes region,⁶⁰ which used five goals of environmental public participation as the criteria for success—(1) "educating the public," (2) "increasing the substantive quality of decisions," (3) "incorporating public values into decision-making," (4) "reducing conflict among competing interests," and (5) "rebuilding trust in government agencies."⁶¹ Dr. Davies then provided the following assessment of the relative success of "30 case studies of Remedial Action Planning under the aegis of the International Joint Commission and the comparative risk efforts by both states and localities,"⁶² which involved such ADR [30 ELR 10665] efforts as roundtables and collaborative watershed management efforts⁶³

* In all of the cases for which there was adequate data . . . the participants in the process were themselves educated by the process. However, there was much less success in educating the wider public⁶⁴

* The Great Lakes study was unable to measure whether the quality of decisions was improved by public participation but in 9 of 23 cases participants contributed important substantive information to the process⁶⁵

* Whether for better or worse, the participatory process resulted in public values being incorporated in most of the decisions studied. Participant input about values, assumptions, and preferences drove or changed some decisions in 19 of 25 cases⁶⁶

* Public participation was also effective in reducing conflict among competing interests. Of the 19 cases in which there was good data on this question, in 58% of the cases conflict decreased, in 26% the process didn't change the level of conflict, and conflict increased in only 16% of the cases. Furthermore, in more than two-thirds of the cases the process improved relationships among stakeholders or led to the development of procedures or institutions for resolving future conflict⁶⁷; and

* The Great Lakes cases were split about evenly with regard to increasing trust in government agencies. About one-third resulted in decreased trust, one-third increased trust, and one-third produced no change.⁶⁸

Turning to "failures of ADR," in general, as determined by his public participation model, Davies lamented that in three areas "ADR efforts often have failed."⁶⁹ These are (1) "adequate representation of the public,"⁷⁰ (2) "education of the wider public,"⁷¹ and (3) "implementation."⁷²

Dr. Davies concluded his address by positing two ways "to strengthen ADR in areas where it is weak."⁷³ First, he saw great promise in using the Internet to enhance collaborative decisionmaking, but cautioned that the "politically weak . . . the poor and the downtrodden" could be left out.⁷⁴ Second, he urged the enhancement of trust in the process of ADR, concluding that "as we learn more about trust, we hopefully will learn how it can be increased and how ADR can impact it."⁷⁵

Environmental Conflict Resolution at the Federal Level: The Challenges of Evaluation

Kirk Emerson, Ph.D., director of the U.S. Institute for Environmental Conflict Resolution,⁷⁶ spoke about environmental conflict resolution from her perspective as a federal official.⁷⁷ Her central concern in her conference talk was how ADR professionals could usefully create more systematic and reliable knowledge about the specific workings of environmental conflict resolution results and processes.⁷⁸

Two research deficiencies were identified by Dr. Emerson. First, existing research data was limited almost exclusively to environmental mediation, as opposed to other ADR processes and, second, extant environmental ADR studies tended to be poorly framed and cast in overly generalized terms.⁷⁹

Emerson went on to discuss past uses of environmental ADR. Prominent examples that she mentioned were: (1) resolution of land use disputes such as the building of the Storm King hydroelectric plant on the Hudson River and the location of the Snoqualmie River Valley dam in Washington State; (2) policy discussion led by third-party facilitators about environmental issues such as wetlands and coal; (3) negotiated rulemaking between federal government agencies and nongovernmental parties under the Negotiated Rule Making Act of 1990; and (4) mediated settlement discussions about administrative and civil enforcement of environmental regulations and liability for hazardous waste cleanup.⁸⁰ Thereafter, she canvassed the particular journals where research articles on environmental ADR have been published, while also providing a taxonomy of various types of research literature from negotiation and mediation, to environmental regulation and policy, to public administration.⁸¹ Then Dr. Emerson offered several critical comments about the state of existing environmental conflict resolution literature; the thrust of her critique was that existing literature is not rigorous enough, not theoretical enough, and too anecdotal.⁸²

In closing, Emerson raised various research questions that she finds important in the next generation of environmental conflict resolution research. These questions included how, and by what benchmarks, we should evaluate outcomes of environmental conflict resolution processes; whether or not environmental conflict resolution processes [30 ELR 10666] and outcomes have furthered society's environmental goals; how society can design better and more effective environmental conflict resolution systems; how we can ensure impartiality and competence by third-party environmental conflict resolution neutrals; and—perhaps most intriguingly—whether and how environmental ADR processes should approach conflicting environmental values and resource use values.⁸³

Ethical Dimensions of Environmental ADR

Professor Jennifer Brown,⁸⁴ of Quinnipiac College School of Law, provided food for thought to conference attendees about the ethical quandries of environmental conflict resolution.⁸⁵

Professor Brown voiced the thesis that "the public nature of environmental disputes necessarily implicates interests and values that might not be as salient in other contexts."⁸⁶ Moreover, according to Brown, several Model Rules of lawyer ethics are inadequate in the context of ADR because the Model Rules generally contemplate formally litigated controversies.⁸⁷

The gravamen of Professor Brown's remarks focused on what she described as "problems of representation and accountability for all participants"⁸⁸ in the environmental ADR setting. Speaking to this concern, she explained that "when environmental disputes are to be resolved outside the standard public fora generally entrusted with adjudication or administration of claims" there exists a fundamental change from a traditional litigation context that is "double-edged" in nature.⁸⁹ First, "the privacy available through ADR could free parties to make concessions they might not agree to in more public settings, but it could also serve to screen [environmental] disputes and negotiated agreements from the concerned eyes of the public who have interests at stake, often related to fundamental health and safety."⁹⁰ Second:

the informality available through [environmental] ADR [procedures] could give the parties license to conceive their dispute expansively, bringing in parties and interests that might be excluded by court standards for joinder, relevancy, and standing, but it could also deprive interested parties of the procedural safe guards that ordinarily guarantee them access to information and the opportunity to be fully heard by decision makers.⁹¹

Thus, as recapitulated by Professor Brown, "two issues may therefore arise in environmental ADR more pointedly than they do in other areas: [1] Who should be at the table?, [and] [2] Once, identified, who can represent them at the table?"⁹²

ADR in Environmental Controversies: "Truth or Dare"

Peter R. Steenland Jr., senior counsel of the U.S. Department of Justice's (DOJ's) Office of Dispute Resolution,⁹³ in the course of his conference talk⁹⁴ drew on extensive past experience of environmental litigation and ADR⁹⁵ to provide an apt metaphor for ADR in environmental disputes. According to Steenland, the decision by a litigant to pursue environmental ADR is the "dare" component and focusing on environmental litigation is the "truth" component. Mr. Steenland went on to catalog the various challenges of those who have environmental disputes who decide to "dare" to pursue environmental ADR. These challenges include deciding whether all "involved" or "affected" government agencies should participate; assessing the "needs and interests" of the parties; addressing the "role of confidentiality and questions of public participation"; dealing with the "cost of ADR services and the consequences of uneven cost sharing"; "deciding who participates in environmental [ADR]" outside of the litigants; and fathoming how ADR dovetails with government negotiated rulemaking procedures.⁹⁶

Further matters involving environmental ADR procedures that will need to be tackled, according to Steenland, are the different legal and policy considerations that differentiate "localized disputes"⁹⁷ from "disputes with a national constituency"⁹⁸ and "disputes involving the regulated community."⁹⁹

Problems With Using Collaboration to Shape Environmental Public Policy

J. Michael McCloskey, an attorney and former chairman of the Sierra Club,¹⁰⁰ raised some contrarian points to the generally [30 ELR 10667] accepted modern view that environmental ADR was a uniformly good process to follow.¹⁰¹ In particular, McCloskey is troubled by those instances when federal governmental agencies participate in environmental ADR with private "collaborators," whether they be citizens, environmental groups, or industry.¹⁰² In focusing on the "drawbacks" of such environmental ADR collaboration, Mr. McCloskey identified several practical experiential problems from his perspective including: (1) "the process moves away from quality decisions to merely agreeable ones"¹⁰³; (2) "the dynamic of the process pushes decisions toward the lowest common denominator"¹⁰⁴; (3) "[the ADR process] pushes [participants] toward issues that are tractable, but not always important"¹⁰⁵; (4) "collaboration may take more time, not save it"¹⁰⁶; (5) "transaction costs can be very high"¹⁰⁷; (6) "decisions may [in reality] not be more acceptable [for example] regulatory-negotiation decisions are subject to more frequent court challenges"¹⁰⁸; and (7) "issues that may not be ripe are pushed prematurely into the process [of resolution]."¹⁰⁹ Moreover, McCloskey articulated some fundamental issues of political accountability and legitimacy inherent in collaborative public-private models like environmental ADR. These problems were: (1) "the consensus rule . . . turns democracy on its head and permits minorities to thwart the will of the majority"¹¹⁰; (2) "the consensus [approach] implicitly favor[s] whatever happens to be the status quo"¹¹¹; (3) "despite the theory that all stakeholders should be represented in collaboration, it is mechanically difficult to do so . . . thus, fewer voices can be heard [in the ADR process] than through channels of representative democracy"¹¹²; (4) "the process is biased toward local stakeholders"¹¹³; (5) "in failing to adequately represent all stakeholders, the putative legitimacy for collaborative processes may be lost"¹¹⁴; (6) [attempted transfers from "communities of interest" to "communities of place"] disenfranchise urban majorities concerned with environmental outcomes on public lands"¹¹⁵; and (7) "[political power can be] shifted to rural communities with largely economic interests and away from urban constituencies with non-economic [ideological or moral] interests."¹¹⁶

In closing, Mr. McCloskey acknowledged that collaborative processes, like environmental ADR, could be added to the "traditional techniques for public involvement," like government hearings, notice-and-comment procedures for government rulemaking, etc.,¹¹⁷ if various safeguards were put in place. Some of the protective provisions, advocated by McCloskey, are:

* Collaboration is regarded as mere input, not producing finished policy awaiting official ratification¹¹⁸

* The panel of parties for collaboration is balanced to represent national and regional interests, as well as local interests¹¹⁹

* The venues for meetings are moved to various places convenient for the diverse parties¹²⁰

* A consensus should not be required; decisions should be based on voting, with majorities prevailing¹²¹; and

* The membership should be organized deliberately to represent diverse interests, with the power of appointment [to those collaborative groups] dispersed among parts of government.¹²²

Can Environmental ADR Work for State and Local Environmental Pollution Rulemaking and Permit Disputes?

The final speaker of the conference was William Beranek, Ph.D., president of the Indiana Environmental Institute, Inc.,¹²³ who addressed environmental ADR issues from the standpoint of state and local environmental pollution rulemaking and permit disputes.¹²⁴ Dr. Beranek recounted some of his personal experiences in participating as an environmental ADR "neutral," through Indiana Environmental Institute, Inc. Beranek covered several interesting topics.

First, he articulated three "assumptions" about an environmental ADR neutral: (1) "competency"; (2) "credibility with most parties in the dispute"; and (3) the "ability to stay out of the way as each party achieves its informed, perceived needs."¹²⁵ Second, Beranek propounded four benchmarks for measuring the worth of environmental ADR efforts: (1) "Were all stakeholders contributing to the decision truly better informed?"; (2) "Was there truly open [30 ELR 10668] dialogue among key stakeholders at the appropriate times?"; (3) "Was there adequate digestion of the implications of especially the later drafts of the proposed rule or permit by all affected stakeholders?"; and (4) "Were the interests of the parties not at the table considered?"¹²⁶

Third, Dr. Beranek presented a fascinating picture of "the state and local rulemaking process for the [environmental ADR] neutral."¹²⁷ Among his keen observations on this topic, Beranek noted that the "players on all sides (grievant, public interest, regulated) [are] usually only able to devote part [of their] time from regular obligations for a state and local rulemaking" and, thus, there is "not much time to learn [their] own position well much less to understand the depth of the positions of others."¹²⁸ Moreover, Dr. Beranek also observed that parties in an environmental ADR rulemaking setting have different biases and perspectives on the facts; mistrust the motives of other sides; and suffer limited and often incorrect knowledge of relevant terminology, scientific concepts, the nature of the relevant environmental problem being addressed, the nature of chemical risk, the specific technological choices available, and the costs and benefits of various alternative solutions.¹²⁹

Fourth, Beranek analyzed the multiple characteristics of the state permit writing process from the standpoint of the environmental ADR neutral. Beranek pointed out: (1) that "some or none of [the] stakeholders may have been involved" in a particular state rulemaking process; (2) that sometimes "[the] State permit writer may be the assembler of advice and [interpreter] of changing preferences from many parts of the [environmental] regulatory agency and the [U.S. Environmental Protection Agency]"; (3) that "often neighbors to the new or existing plant have quality of life and other location-specific concerns" and "these citizens often have little understanding of the workings of the environmental regulatory authorities [and little understanding] of the nature of the environmental problems being addressed by [the] permit"; and (4) "public interest advocates [who get involved in a permit process] may [have a number of motives such as a] wish to assist neighbors, [desire to] press a point of environmental principle, [desire to] promote an environmental cause or [an interest to] assure that the government implements its regulation appropriately."¹³⁰

Conclusion

The First Annual Conference by the Valparaiso University School of Law's Center on Dispute Resolution was a smashing success. By drawing together a diverse group of national experts on environmental ADR, and a crowd of attendees from several states, valuable insight was shed on multiple issues of environmental ADR in America. Is environmental ADR working in America? The consensus from the conference is "Yes"—in many different ways but with much room for future improvement.

1. Janet Reno, Lawyers as Problem Solvers: Keynote Address to the AALS (Association of American Law Schools) (Oct. 1999), in 49 J. LEG. EDUC. 518 (1999).

2. Id.

3. The mission of the Valparaiso University School of Law's Center on Dispute Resolution is:

research, teaching and public programs on dispute resolution in the fields of Environmental Law and Policy, Employment and Labor Law, and International Law.

Each year the Center on Dispute Resolution sponsors a major public conference program on dispute resolution and one of the concentration fields. The conference also provides speakers and enrichment activities for participants in the concentrations; assistance to students with career planning and placement; and support for research and publications by both faculty and students.

CONFERENCE BROCHURE, VALPARAISO UNIVERSITY SCHOOL OF LAW'S CENTER ON DISPUTE RESOLUTION, Is Environmental Alternative Dispute Resolution Working in America? (Oct. 22, 1999). The conference was co-sponsored by the Indiana Environmental Institute, Inc. (William Beranek Jr., Ph.D. (President)).

4. The Valparaiso University Law Review will publish, in 2000, a special symposium edition of the October 1999 conference, consisting of selective longer articles from some of the conference speakers.

5. In quoting from the conference speakers, citation is made to a speaker's conference paper, which was assembled as part of a set of materials distributed to attendees. Citation will refer to the page of the particular conference paper.

6. Robert F. Blomquist, Some (Mostly) Theoretical and (Very Brief) Pragmatic Observations on Environmental Dispute Resolution in America, VALPARAISO UNIVERSITY SCHOOL OF LAW'S CENTER ON DISPUTE RESOLUTION FIRST ANNUAL CONFERENCE, Is Environmental Alternative Dispute Resolution Working in America?, Conference Proceedings (Oct. 22, 1999 Indianapolis, Indiana) [hereinafter Conference Proceedings].

7. Id. at 1 (internal quotation marks omitted; citations omitted).

8. Id. (citations omitted).

There has certainly been an outpouring of scholarly attention to Environmental ADR. Using the arbitrary, but useful, measure of a decade, by my Westlaw-assisted count [as of October 1999], there have been no fewer than 59 published articles, book chapters, essays. Bar Association reports, and conference proceedings dealing with one or more features of Environmental ADR, published during the 1990s. Using other search inquiries—for example, "environmental mediation" or "environmental arbitration"—yields well over a hundred articles on the subject published during the 1990s. At the cusp of the new millennium—la fin du deuxieme millenaire—with American law schools and law students apparently obsessed with new ADR courses in the curriculum and environmental disputes and problems growing more varied and involved year-by-year (with interest by disputants in pursuing non-litigation strategies) [it is apparent that, at the very least, there is great interest in environmental ADR techniques].

Id. at 2 (citations omitted).

9. Id. at 3.

10. Id.

11. See id. at 4-5.

12. Id. at 6.

13. See id. at 7.

14. See id. at 8-9.

15. Id. at 9 (citation omitted).

16. Id. at 10.

17. Id.

18. See generally Joel B. Eisen, Are We Ready for Mediation in Cyberspace?, 1998 BYU L. REV. 1305 (1998).

19. Blomquist, Conference Proceedings, supra note 6, at 11 (quoting Eisen, supra note 18, at 1308).

20. Id. (footnote omitted).

21. Id. (citing Eisen, supra note 18, at 1309).

22. See id. at 12.

23. See id. at 12-13.

24. Id. at 13.

25. Id. at 13-14.

26. Id. at 14.

27. Id.

28. Diane R. Smith runs her own professional firm: Law and Mediation Offices of Diane R. Smith in Irvine, California. A former partner at the California law firm of Snell & Wilmer, Ms. Smith is an expert on environmental mediation and has published many articles in the field. She also spent nine years in-house at Fluor Daniel, the world's largest engineering and construction company, and seven years at the U.S. Department of Energy. Ms. Smith has practiced environmental, engineering, and construction law in both the public and private sectors for over two decades. She mediates and arbitrates cases as a member of the American Arbitration Association's National Environmental and Construction Panels, and teaches dispute resolution at the University of California at Irvine.

29. Diane R. Smith, "Rough Justice," "Fairness," and the Process of Environmental Mediation, Conference Proceedings, supra note 6, at 3 (original emphasis).

30. Id. at 15 (internal quotation marks omitted).

31. Id. at 4.

32. Id.

33. Id. at 4-5.

34. Id. at 5.

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. Id.

41. Id. at 6.

42. Id.

43. Id.

44. Id.

45. Id. at 7.

46. Id.

47. Id. at 8.

48. Id.

49. Id. at 9.

50. See id. at 12.

51. See id. at 12-13.

52. See id. at 13-15.

53. J. Clarence Davies currently serves as director for the Center for Risk Management at Resources for the Future—a national environmental think tank in Washington, D.C. Dr. Davies has extensive governmental and private-sector experience and is a national expert on environmental policy. He recently served at the U.S. Environmental Protection Agency as assistant administrator for Policy. Davies has published widely on environmental issues. He is chairman of the board of RESOLVE, Inc., a national environmental dispute resolution organization.

54. J. Clarence Davies, Environmental ADR and Public Participation, Conference Proceedings, supra note 6, at 1.

55. Id.

56. Id. at 2 (quoting JAMES E. CROWFOOT & JULIA M. WONDOLLECK, ENVIRONMENTAL DISPUTES I (1990)).

57. Id. at 3.

58. Id.

59. Id. at 4.

60. See id. at 4 (citing Thomas C. Beierle & David M. Konisky, Public Participation in Environmental Planning in the Great Lakes Region (RESOURCES FOR THE FUTURE DISCUSSION PAPER 99-50)).

61. Id. at 4.

62. Id. at 4-5.

63. See id. at 13.

64. Id. at 5.

65. Id.

66. Id.

67. Id.

68. Id. at 6.

69. Id. at 8.

70. Id.

71. Id.

72. Id.

73. Id.

74. See id. at 11-12.

75. Id. at 13.

76. Dr. Kirk Emerson was appointed, in 1999, director of the U.S. Institute for Environmental Conflict Resolution, located in Tucson, Arizona, at the Morris K. Udall Foundation. From 1997 to 1999, she coordinated the Environmental Conflict Resolution Program at the Udall Center for Studies in Public Policy, where she was an assistant research professor in Environmental Policy. Dr. Emerson holds a B.S. from Princeton University, a master's degree in City Planning from Massachusetts Institute of Technology, and a Ph.D. in Political Science and Public Policy from Indiana University. She worked for several years as an environmental planner and planning administrator and is a trained facilitator and mediator with experience in land use and environmental mediation, and community consensus-building.

77. Kirk Emerson, Environmental Conflict Resolution at the Federal Level: The Challenges of Evaluation, Conference Proceedings, supra note 6.

78. See id. at 1.

79. See id. at 2.

80. See id. at 3.

81. See id. at 4-5.

82. See id. at 6-10.

83. See id. at 14-15.

84. Professor Jennifer Brown is a professor of Law at Quinnipiac College School of Law. She is a graduate of Bryn Mawr College and the University of Illinois School of Law. She worked as an associate with the law firm of Winston & Strawn for three years following a judicial clerkship to a federal judge and was a Bigelow Fellow at the University of Chicago Law School. Professor Brown's specialties are both Alternative Dispute Resolution and the Legal Profession.

85. Jennifer Brown, Ethics in Environmental ADR: An Overview of Issues and Some Overarching Questions, Conference Proceedings, supra note 6.

86. Id. at 2.

87. See id. at 6-8 (discussing a lawyer's communications with other lawyers).

88. Id. at 12 (original emphasis).

89. Id.

90. Id. (original emphasis).

91. Id. (original emphasis).

92. Id.

93. In his capacity as senior counsel in the DOJ's Office of Dispute Resolution, Peter R, Steenland Jr., supervises the use of ADR throughout the DOJ. He also serves as U.S. Attorney General Janet Reno's, designee in her role as chair of the Interagency Working Group on ADR—a Presidentially established task force to promote ADR in executive branch agencies of the federal government. Prior to his service as senior counsel for ADR, Steenland was the chief of the Appellate Section in the Environment and Natural Resources Division of the DOJ for 18 years, where he supervised all of the government's environmental litigation in the U.S. Court of Appeals. He has argued more than 170 cases involving a wide array of environmental and natural resources issues.

94. Peter R. Steenland Jr., Alternative Dispute Resolution in Environmental Controversies: "Truth or Dare," Conference Proceedings, supra note 6.

95. See id. at 1.

96. See id.

97. See id.

98. Id. at 2.

99. Id. (internal quotation marks omitted).

100. J. Michael McCloskey, Esq., served as Chairman of the Sierra Club—perhaps the preeminent national environmental organization—from 1985 to 1999. He is currently director of the Natural Value Mapping Project at the Sierra Club, and serves as adjunct professor of Public Policy at the School of Natural Resources and the Environment at the University of Michigan. He serves on several environmental and natural resources boards of directors and boards of advisors, has received numerous national awards and recognitions for his environmental leadership, and is a frequent contributor to professional publications in the environmental field.

101. J. Michael McCloskey, Problems With Using Collaboration to Shape Environmental Public Policy, Conference Proceedings, supra note 6.

102. See id. at 2.

103. Id. at 3.

104. Id.

105. Id.

106. Id.

107. Id.

108. Id.

109. Id. (internal quotation marks omitted).

110. Id.

111. Id.

112. Id. at 4.

113. Id.

114. Id.

115. Id.

116. Id.

117. See id.

118. Id. at 4-5.

119. Id. at 5.

120. Id.

121. Id.

122. Id.

123. William Beranek Jr., Ph.D., is president of the Indianapolis-based Indiana Environmental Institute, Inc.—a Midwestern environmental think tank and an environmental alternative dispute resolutional institutional force in the state of Indiana. Dr. Beranek has had extensive governmental and private-sector experience in environmental affairs.

124. William Beranek Jr., When Can EADR Work for State and Local Environmental Pollution Rulemaking and Permit Disputes?, Conference Proceedings, supra note 6.

125. Id. at 1.

126. Id.

127. Id.

128. Id.

129. See id. at 2.

130. Id. at 3.