Environmental Management at the Millennium: The Use of Environmental Dispute Resolution by State Governments

Beginning of article

In 1947, John Gaus made an analysis of how significant social, economic, technological, and environmental challenges had historically led citizens in the United States to turn to the federal government for assistance, relief, and support. Over the past two decades the United States has experienced transformations as significant as those that Gaus maintained had led to the rise of the administrative state. To use Alvin Toffler's (1980) terms, third-wave transformations (such as global capitalism, the information revolution, and global environmental change) have shaken social, economic, and political systems in ways comparable to those that occurred when the United States shifted from an agricultural (first wave) to an industrial (second wave) society. As part of this shift, environmental challenges and conflict concerning environmental decisions have "grown exponentially" (Lach 1996, 211).

In response to this increased conflict, the environmental management literature is ripe with normative pleas to increase the roles of the lay public and interested stakeholders in the resolution of environmental disputes. One author, for example, argues that such participation in the resolution of water conflicts in the western United States is a fundamental tenet of our democratic government (Waller 1995). Another argues that the use of alternative dispute resolution (ADR) techniques could greatly improve the management of Superfund cleanups (Whitman 1993). The Environmental Protection Agency's (EPA) Office of Site Remediation claims in one of its publications that there are several benefits of ADR in its environmental enforcement actions. These include lower transaction costs, a focus on problem solving (as opposed to positioning), the generation of settlement options that are more likely to be tailored to stakeholders' needs, and the saving of time (U.S. Environmental Protection Agency 1995). Finally, a study of intergovernmental conflict stemming from state law that regulates solid waste in North Carolina concludes that state and local governments may be able to positively resolve such disputes by adopting a problem solving stance and searching for win-win results (Jenks 1994).

There are, however, insufficient analyses of environmental dispute resolution (EDR) efforts in the public management literatures, generally, and no comprehensive studies of EDR in the states. Examples of existing analysis include deHaven-Smith and Wodraska (1996), who examined consensus building in integrated resources planning within the Metropolitan Water District of Southern California; Kerwin and Langbein (1995), who analyzed negotiated rule making at EPA; Fiorino (1988), who looked at regulatory negotiation as a policy process at the EPA; Blackburn (1988), who examined environmental mediation as an alternative to litigation; and Perritt (1986), who analyzed the use of ADR techniques in negotiated rule making. Some public administration scholars also have examined generic conflict resolution techniques (see, e.g., Lan 1997). Thus, while the literature generally has advocated EDR as a public management response to the third-wave (or millennial) problem of environmental conflict, broad studies that assess the success of these programs or the degree to which they are implemented by state agencies are scarce. The purpose of this article is to assess the extent to which state governments adopt EDR techniques and explore the reasons that states differ in their success at adopting EDR techniques--in other words, the state of the states in environmental dispute resolution at the millennium.

The term environmental dispute resolution means the "variety of approaches that allow parties to meet face to face to reach a mutually acceptable resolution of the issues in a dispute or potentially controversial situation" (Bingham 1986). It is often viewed as "intervention between conflicting parties or viewpoints to promote reconciliation, settlement, compromise or understanding" in the environmental arena (McCrory 1981). This includes "[mere] assistance from a neutral third party to the negotiation process" (Bingham, Anderson, Silberman, Habicht, Zoll, and Mays 1987). Such assistance can be directed toward settling disputes that arise out of past events or can be directed toward establishing rules to govern future conduct, such as in the case of regulatory negotiation (Eisenberg 1976).

We will examine three issues in this article: What is the state of the states in environmental dispute resolution at the millennium? What characteristics of state governments are correlated with strong environmental dispute resolution programs? What are the implications of the current state of the states in EDR for public management in the next century?

THREE INFLUENTIAL LENSES

This article is influenced by three very different public management research projects and literature streams: environmental rankings of states as generated by Lester, work emanating from the government performance project at Syracuse University, and the diffusion of innovation literature.

The Lester Ratings

In a 1995 study, James Lester argued that in the age of federalism, state environmental performance would be driven not by federal influence, but by a state's institutional capacity and its commitment to environmental protection. He then categorized states, based on their commitment to environmental quality and their institutional capacity for environmental management, in order to predict how states would respond in the 1990s to the new federalism policies of unfunded mandates and decreased funding for environmental protection programs. Based on the Green Index published by the Institute for Southern Studies, on information provided by the Fund for Renewable Energy and the Environment (FREE), on state spending on environmental protection, and on his own research, Lester created a typology of environmental innovation. This typology includes progressives (high commitment and high capacity), strugglers (high commitment and low capacity), delayers (low commitment and high capacity), and regressives (low commitment and low capacity). Exhibit 3 lists the grades Lester assigned to the selected states, with A signaling the progressives, B signaling the strugglers, C signaling the delayers, and D signaling the regressives. We use these grades as measurements of environmental protection efforts. The Lester study raises an important hypothesis for our research:

Exhibit 3 A Comparison of Four State Grades

                                               Lester
                        GPP        GPP      Environmental
                    Management   Capacity    Protection       EDR
State                  Grade      Grade         Grade        Grade

                    States with Formally Acknowledged EDR Programs

Alaska                   C-          C             C            D
Colorado                 C-          C-            B            D
Connecticut              B+          B             B            D
Florida                  B           C+            A            A+
Hawaii                   C-          C             B            B-
Illinois                 C           C+            C            D-
Kentucky                 B           B-            D            A
Maine                    C           C             B            C
Massachusetts            C           B-            A            B-
Michigan                 B           B+            A            B
Minnesota …