CONFLICT RESOLUTION

• Jurisdiction: United States

NEPA and Federal Land Development
(Feb 2006)
CHAPTER 8B
CONFLICT RESOLUTION
Cherie Shanteau
Senior Program Manager
United States Institute for Environmental Conflict Resolution, Morris K. Udall Foundation
Tucson, Arizona

CHERIE SHANTEAU

Cherie P. Shanteau is an attorney, mediator/facilitator with U.S. Institute for Environmental Conflict Resolution. She has program responsibilities for administrative appeals, courts, escalated disputes and litigated matters. In addition to case consultation, management, she provides program design, convening and process management services, mediation and facilitation, as well as environmental conflict resolution training and negotiation training. Her subject matter expertise includes real property and environmental law, Western public lands issues including wilderness, grazing and endangered species. She has designed ADR referral programs, successfully mediated numerous litigated and non-litigated matters, represented clients in mediation, and facilitated several large public disputes related to a variety of environmental issues. She has taught mediation, negotiation, conflict resolution and communication skills to judges, lawyers, law students, other individuals, corporations and organizations in the United States and Europe. She is additionally qualified to administer the Myers-Briggs Type Indicator©.

U.S. Institute for Environmental Conflict Resolution

Morris K. Udall Foundation

National ECR Advisory Report: An Introduction

This report was produced by the National Environmental Conflict Resolution Advisory Committee (Committee), a federal advisory committee chartered by the U.S. Institute for Environmental Conflict Resolution (U.S. Institute) of the Morris K. Udall Foundation. The U.S. Institute serves as an independent, impartial federal institution to assist all parties in resolving environmental, natural resources, and public lands conflicts where a federal agency or interest is involved. The Committee's charter and other pertinent materials, including this report, are posted on the U.S. Institute's website www.ecr.gov.

In 2000, a bipartisan group of U.S. Senators asked the U.S. Institute to investigate "strategies for using collaboration, consensus building, and dispute resolution to achieve the substantive goals" of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) ("NEPA") and "resolve environmental policy issues...." The U.S. Institute conducted initial analytical work in response to the Senators' inquiry, then, in 2002, created the Committee. The Committee was chartered to provide advice on future program directives--specifically how to address its statutory mandate to assist the federal government in implementing Section 101 of NEPA (42 U.S.C. 4331).¹ The 29 member Committee's Designated Federal Official is Dr. Kirk Emerson, and it is chaired by Thomas C. Jensen. The Vice-Chair is Dinah Bear. The committee's charter expires at the end of April 2005.

The Committee organized itself into three subcommittees. The Subcommittee on NEPA Section 101 and Environmental Conflict Resolution is co-chaired by Lynn Scarlett and Donald Barry. The Subcommittee on Capacity Building for Environmental Conflict Resolution and Collaboration is co-chaired by Christine Carlson and Cynthia Burbank. The co-chairs of the Subcommittee on Affected Communities are Larry Charles and Stan Flitner. The Committee met in regular session four times, in special sessions on two other occasions, and the three subcommittees met on various occasions in connection with full Committee meetings and separately.

The Committee conducted numerous analyses to develop objective information useful in advising the U.S. Institute on how to further promote resolution of environmental conflicts involving federal agencies and to help the federal government implement Section 101 of NEPA. The Committee sought to become thoroughly familiar with environmental conflict resolution and with the way in which Section 101 of NEPA has been implemented since enacted in 1969. The Committee approached the task from several directions, working in the first instance through its subcommittees

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Committee Findings

The Committee's analyses have led it to conclude that

• Effective environmental conflict resolution can produce agency decisions that manifest the national environmental policies framed in Section 101 of NEPA.

• NEPA's policies and environmental conflict resolution techniques are available to serve as mutually reinforcing tools to help the federal government make sound decisions.

• NEPA can provide common goals for all federal agencies, while environmental conflict resolution practices can create the conditions under which these goals can be realized.

The Committee has found a striking similarity between the policies set forth in Section 101 of NEPA and the principles and practices that characterize effective environmental conflict resolution. Where NEPA calls for productive harmony, the protection of health and environmental quality, sustainability and general welfare, environmental conflict resolution practices call for balanced representation of affected interests and values. Where NEPA calls for social responsibility, intergenerational welfare, sustainability and stewardship, environmental conflict resolution calls for full consideration of the short- and long-term implications of agreements and decisions, responsible and sustained engagement of all parties and wide access to the best available information.

The Committee found a broad array of situations where more effective engagement by federal agencies of interested groups and individuals has produced decisions seen favorably by all involved parties. These situations are characterized by broad involvement and representation for the spectrum of values and interests encompassed by NEPA's policy goals. The Committee recognizes the importance and effectiveness of agency efforts to bring potentially interested parties in very early in the process of setting policy, defining programs, or framing projects. The investment of time, effort, and thought "upstream" can reduce the risk of disputes "downstream," when positions may have hardened and options narrowed. Involvement alone is not enough, however, and process often can be improved if the involvement is governed by appropriate conflict resolution practices and principles and, where appropriate, guided by experienced facilitators or mediators. This is especially important in high conflict, complex, multi-party disputes. Where the process of making a federal decision involves the right parties, focuses on the full range of issues, uses scientific and other advice, and follows the appropriate conflict resolution principles and techniques, the odds are significantly improved that the quality of the decision will be higher and the degree of public support for agency programs will be strengthened.

Federal agencies bear a special responsibility to ensure that such processes are appropriately designed and implemented. It may be far worse to attempt a poorly designed environmental conflict resolution process than to follow the traditional practice of agency decision-making without any conflict resolution process. Well-managed conflict resolution practices repair and build relationships that are often critical to long-term implementation and administration of federal programs.

Though not all conflicts are appropriate for mediation, the Committee believes that the number and severity of "intractable" cases can be reduced significantly by proper use of environmental conflict resolution and awareness of NEPA's policy -- not because the various techniques or statutory language possess any special remedial powers, but because our fellow citizens usually have the

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capacity to be creative and fair and to want good results for the nation as a whole.

Committee Recommendations

The Committee is making recommendations to the U.S. Institute that, if adopted, would help the federal government improve the quality of agency decision-making consistent with the policies of NEPA. The Committee's recommendations manifest three objectives:

• Advancing federal agency use of collaboration and environmental conflict resolution;

• Advancing the ability of affected communities to participate effectively in environmental decision-making; and,

• Advancing the U.S. Institute's leadership role in assisting federal agencies and communities in resolving environmental conflicts.

The Committee's key recommendations are that the U.S. Institute should:

• Work with the Council on Environmental Quality to develop approaches to implementing Section 101 of NEPA through environmental conflict resolution;

• Develop a "toolkit" of management approaches for federal executives to transform agency culture in support of environmental conflict resolution and collaboration;

• Develop cross-agency training on environmental conflict resolution and collaboration;

• Identify ways to expand its leadership in developing applications of collaborative monitoring in the context of alternative dispute resolution and adaptive management;

• Collaborate with the Council on Environmental Quality to guide federal agencies and Affected Communities in the application of NEPA using the Affected Communities Subcommittee's recommended framework for environmental conflict resolution and collaboration;

• Continue to foster networks and partnerships that promote the best environmental conflict resolution practices and promote use of technology to facilitate sharing of lessons learned, science, literature and data; and,

• Obtain funding for and implement the U.S. Institute's participation grant program.

The Committee also recommends that other agencies of government, at all levels, take advantage of the resources represented by effective environmental conflict...