Using the RIGHT STRATEGY to Mediate Environmental Disputes

By Bickerman, John | Dispute Resolution Journal, May-July 2012 | Go to article overview
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Using the RIGHT STRATEGY to Mediate Environmental Disputes


Bickerman, John, Dispute Resolution Journal


Environmental disputes present some of the most interesting, challenging, complicated, and daunting issues that a mediator may confront. These cases fall into two broad categories-statutory claims and natural resources conflicts. Stat - utory claims involve rights that have been established by federal law. Most often, the United States en forces these rights on behalf of the general public, in civil suits brought in federal court.

By comparison, natural resource conflicts are usually complex multiparty clashes over resources such as water, fisheries, or endangered species. These conflicts often confront the allocation of scarce re - sources among multiple legitimate interests. As these disputes have often simmered for decades, they tend to involve parties who are highly emotional about the issues and whose perspectives and cultural differences often polarize them from each other. It follows that the role of the mediator changes depending on the nature of the dispute. Also, the same style won't work for all types of environmental matters.

Statutory Claims

Statutory claims most often involve enforcement actions brought by the U.S. Government under the following laws:

(1) The "Superfund" statute (Com - prehensive Environmental Response Compensation and Liability Act (CERCLA), 46 U.S.C. § 9601 et seq. (1980)) for harm to land.

(2) The Clean Water Act (33 U.S.C. § 1251 et seq. (1972)), for water pollution.

(3) The Clean Air Act (42 U.S.C. § 7401 et seq. (1970)), for air pollution.

In addition, there is a private right of action under Superfund that potentially responsible parties (PRPs) can use to seek contribution from other PRPs, including the United States. (For example, contribution claims have been made against the United States by government contractors who performed work at certain World War II sites under the direction or control of the U.S. Government.)

A Superfund dispute has fewer "moving parts" (i.e., negotiable issues) than other environmental conflicts. Superfund defendants (including the United States) generally will agree to pay money or accept a fixed percentage of future cleanup costs in return for receiving a release or partial release of liability. Consequently, the mediator's role is to manage a fact-intensive discussion of the causes of the contamination, the cost of the remedy, and whether there are other PRPs to whom a share of liability should be allocated.

Clean Air Act enforcement cases have similar parameters. Since March 2000, the Environmental Protection Agency (EPA) has entered into 29 Clean Air Act settlements involving 106 refineries in 32 states, representing over 90% of the country's refining capacity. In most of these cases, the EPA has sought compliance with a complex set of rules requiring refineries to meet stricter standards for new sources of pollution (the New Source Review (NSR) Rules). In de - termining the enforcement penalty for violating these rules, the EPA considers the economic benefit (i.e., costs saved) the refinery received for operating outside the rules (the BEN model), and then compares it to costs incurred by a refinery that had appropriate clean air controls. In fact, the EPA has used the BEN model since 1984 to calculate the economic benefit from delayed and avoided compliance with EPA rules.

The factors used in this model can be the subject of considerable negotiation by the parties to Clean Air Act cases and some of the statutory penalties can be partially avoided by having the defendant agree to undertake supplemental environmental projects (SEPs) that will benefit the local community affected by the alleged air pollution (e.g., purchasing emergency response equipment).

The BEN factors give the mediator and the parties a few more dimensions with which to crafta negotiated settlement. However, because the resolution of statutory claims pivots on how much money the defendant will pay, notwithstanding the various de vices available to the parties and the mediator to manipulate that amount, the negotiation is frequently a "zero sum" game.

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Using the RIGHT STRATEGY to Mediate Environmental Disputes
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