DIALOGUE AND NEGOTIATION ON ISSUES OF NATURAL RESOURCE AND ENVIRONMENTAL POLICY
| Jurisdiction | United States |
(Mar 1984)
DIALOGUE AND NEGOTIATION ON ISSUES OF NATURAL RESOURCE AND ENVIRONMENTAL POLICY
The Conservation Foundation
Washington, D.C.
Introduction
Over the last 15 or 20 years, private businesses, citizen organizations, and local, state, and federal agencies have found themselves increasingly engaged in conflict over decisions that affect environmental quality and natural resources.1 Individuals and groups, having competing private interests or different perspectives about what constitutes the public interest, clash over both project-specific actions and general environmental policies.
Even a partial list of examples brings to mind headlines from across the country. Disputes arise over the siting of hazardous waste facilities, new projects for meeting increased demand for water in water-short basins, oil and gas leasing on public lands, mine reclamation plans, routing new highways, preserving historic buildings in rapidly growing cities, etc.
Often, underlying the disputes over specific projects, are disagreements over basic public policies. Is the hazardous waste facility really needed? Couldn't more effort be made to reduce hazardous wastes coming from industrial processes? Similarly,
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wouldn't that proposed water project be unnecessary, if additional conservation measures were adopted? What should the national standards be for mine reclamation? etc.
Although the line between project-specific and policy-level disputes is frequently blurred and whether a specific controversy can be more easily resolved through general policy changes or whether the dispute can be more easily resolved in specific instances is often a matter of judgement, this paper will attempt to focus principally on efforts to resolve policy-level disputes through dialogue and negotiation. Because there has been more experience with negotiated settlements of project-specific disputes, however, this experience also will be referenced.
Dialogue and negotiation among those directly affected by a policy or project is often characterized as an "alternative to litigation" or as a way to "avoid conflict." Conflict per se is not the problem, however. Not only are parties' competing interests in a decision frequently legitimate; but conflict can create healthy opportunities in a society for individuals and groups to clarify their own values and interests, to exchange ideas and information, to test the accuracy and relevance of information, to develop creative new solutions to problems, and, hopefully, to improve the resulting decisions. Litigation also is not without merits. Frequently, parties find it necessary to file a suit at least to capture their adversary's attention and,
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perhaps, to slow the decision-making process down long enough to get a place "at the table." Also, who would want interpretations of the law made or precedents set anywhere but in a court of law? It is often difficult, however, to engage in conflict productively and to balance competing interests in environmental and natural resource issues through traditional administrative, judicial, and legislative processes.
The interest in alternative approaches for resolving environmental disputes comes in part from the perception that public hearings, administrative appeals, and litigation provide an insufficient set of options for effective dispute resolution. These existing approaches are often time consuming and costly; but, more significantly, the participants rarely have the opportunity to work together to develop a mutually acceptable solution to the issues that divide them.
Dialogue, negotiation, mediation and other forms of non-adjudicatory dispute resolution are intended to provide that opportunity. Mediators suggest that, under the right circumstances, the parties involved in environmental disputes will be more satisfied with the outcome of a process to which they have all agreed than they would have been if one party won and others lost through a more confrontational process.2
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What Are The Alternative Dispute Resolution Methods Being Proposed?
The terms "environmental dispute resolution" or "conflict management" are used to include a range of innovative techniques for resolving environmental disputes.
The variations in approach arise in part because of the varied character of environmental disputes. The issues in dispute differ, as does the degree of polarization over those issues. There can be two parties or dozens. The parties may be well-organized companies, government agencies, or environmental groups; as well as loosely knit coalitions. The relative power of the parties can vary considerably, as can the constraints under which they must act. In some cases, the parties have taken well-defined positions on the issues, while in other cases there is only the recognition that a problem exists and that agreeing on the solution is likely to be difficult. It is not surprising, therefore, that different approaches exist for different circumstances.
Although there are significant differences among them, the dispute resolution techniques below all involve some form of consensus building, joint problem-solving, or negotiation which allow the participants to advocate their own positions directly to each other and to find a practical, broadly supported
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Negotiation, taken in a broad sense, is a decision-making process in which parties with different interests deal directly with each other in order to reach a mutually agreed upon decision. Good faith negotiation implies that the parties have the intention and...
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