Report of the Alternative Dispute Resolution Committee

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This report addresses selected recent developments relating to the use of Alternative Dispute Resolution (ADR) in the energy industry from January 2008 through January 2009. Below is an index of the major subjects covered:

I. FEDERAL AGENCY USE OF CONFLICT RESOLUTION

In October of 2008, the Office of Management and Budget and the Council on Environmental Quality issued its annual report summarizing the use of environmental conflict resolution within federal agencies in 2007.' According to the report, in 2007, the federal government made wide use of Environmental Conflict Resolution (ECR), defined as any conflict resolution or collaborative problem-solving process involving a neutral third-party.2 Nine federal agencies reported using ECR in 320 cases in 2007, which represents a fifty to seventy case increase over the 250-270 cases reported in 2006.3 The U.S. Environmental Protection Agency (EPA) reported the greatest number with ninety cases reported while the Federal Energy Regulatory Commission (FERC) reported twenty-one cases.4 Federal Agencies are required to report their use of ECR.5

II. DEPARTMENT OF ENERGY NOTICE OF REVISED POLICY STATEMENT ON ADR

The U.S. Department of Energy (DOE) defines ADR as "[A]ny technique for resolving disputes without resorting to litigation in either an administrative or judicial forum.' Towards this end, the DOE maintains the Office of Conflict Prevention and Resolution, which is tasked with providing "advice and support for ADR initiatives" throughout the DOE, as well as consultation on "resolving disputes and cases in litigation."7 On October 24, 2008, the DOE published a "Notice of Revised Policy Statement,"8 wherein the DOE committed itself to utilizing Environmental Conflict Resolution "to prevent or resolve conflicts that may arise over the. . .impacts of DOE operations on the environment and natural resources."9 Further, the DOE stated it will encourage "the use, when appropriate, of facilitated negotiations. . .with groups of representatives with potentially disparate interests. . . . This includes use of negotiated rulemaking in the development of proposed rules."10

III. NATIONAL ACADEMY OF SCIENCES REPORT ON PUBLIC PARTICIPATION IN ENVIRONMENTAL ASSESSMENTS AND DECISION MAKING

A new report from the National Research Council entitled "Public Participation in Environmental Assessment and Decision"11 concludes that, when done correctly, public participation improves the quality of federal agencies' decisions about the environment. Well-managed public involvement also increases the legitimacy of decisions in the eyes of those affected by them, which makes it more likely that the decisions will be implemented effectively.1 The report recommends that agencies recognize public participation as valuable to their objectives, not just as a formality required by the law. It details principles and approaches agencies can use to successfully involve the public.

IV. PRESIDENT OBAMA: JANUARY 30, 2009 MEMORANDUM

President Obama issued a memorandum on January 30, 2009, to heads of executive departments and agencies with regard to regulatory review and directed the Office of Management and Budget to produce within 100 days a set of recommendations for a new Executive Order on Federal regulatory review. Among other things the recommendations are to offer suggestions to "encourage public participation in agency regulatory processes."13

V. ADR AT THE FEDERAL ENERGY REGULATORY COMMISSION

The FERC continued to take steps to build programmatic/institutional capacity for ECR in 2008.

The FERCs Dispute Resolution Service (DRS) entered into an agreement with the Harvard Negotiation & Mediation Clinical Program to study ADR in the energy industry, inclusive of ECR, in three regulated energy sectors: electricity, hydropower, and natural gas.14 The study will help the FERC better understand how energy companies view ADR as a tool for energy conflict prevention and resolution, their receptiveness and resistance to its use and the reasons for those positions, and what measures can be taken to improve the capacity and entry points for ADR/ECR in energy and environmental-related decision-making and problem-solving processes. …