Resolving Environmental Regulatory Disputes
By Lawrence Susskind, Lawrence Bacow and Michael Wheeler, eds.
Summary written by Conflict Research Consortium Staff
Citation: Resolving Environmental Regulatory Disputes. Lawrence Susskind, Lawrence Bacow and Michael Wheeler, eds. Cambridge, Massachusetts: Schenkman Books, 1983, 261 pp.
Resolving Environmental Regulatory Disputes analyses the use of voluntary, informal negotiations to resolve environmental disputes. The authors proceed by examining case studies.
Resolving Environmental Regulatory Disputes will be of interest to those who seek a better understanding of environmental regulation, and of alternatives to litigation. This work is divided into seven case studies, with an Introduction and Conclusions by the editors.
David Gilmore investigates a case of successful regulatory negotiation between the Brown Company paper mill and the EPA regarding sulfur dioxide emissions. Negotiations in this case pursued a joint problem-solving approach. Gilmore reviews the background conditions of the dispute. He then identifies the productive tactics which enabled the disputants to reach a mutually beneficial solution.
Alexander Jaegerman examines the behind-the-scenes negotiations between the EPA and Tennessee Eastman Company for a Holston River discharge permit under the Federal Water Control Act. This case is an example of highly technical conflict. Negotiations made use of neutral experts, and ended in a mutually acceptable compromise. Gilmore argues that negotiations were sustained by the disputants' desire to maintain control< over the negotiation process; control which would be lost in public negotiations or adjudication.
Timothy Sullivan explores the difficulties of mandatory negotiation through the Colstrip power plant case in Montana. The Montana Power Company proposed to build two coal fired electric power plants. The Northern Cheyenne Indian Tribe requested negotiations to address air quality concerns. Negotiations failed to reach an agreement. Sullivan argues that "the legislatively determined agenda of environmental issues served to focus negotiations but failed to create a bargaining situation that would benefit both sides."
Stephen Hill examines intergovernmental grant negotiation via the case of a dispute between the local governments of the town of Jackson and Teton County over the site of a sewage treatment plant. Jackson's old plant was overloaded and hence out of compliance with the Federal Water Pollution Control Act. The new plant was to be funded in part by an EPA grant. Hill examines the impact of balance of power on negotiations, the parties' motivations to participate in negotiation, and the need for mechanisms to bind parties to their agreements.
Heidi Burgess and Douglas Smith analyze the use of mediation in the Brayton Point coal conversion case, a dispute centering on air quality standards. Use of mediation in this case averted lengthy, expensive and acrimonious litigation. Instead, the mediated settlement "benefited all the parties without compromising their respective interests.". The authors describe the mediation process in this case, and identify key factors in the mediation's success.
Burgess further discusses the case of the proposed Foothills water treatment complex in Colorado. The foothills case involved extreme demands, numerous parties and issues, public pressure and intense distrust among the disputants. Burgess identifies the obstacles to mediation which this case presented. She then describes the non-traditional approach to mediation which was used to successfully resolve this dispute, and considers whether such unorthodox tactics might be applicable in other cases.
Burgess, Diane Hoffman and Mary Lucci explore the use of negotiation in the rule-making process via the case of EPA regulations under Section301(h) of the 1977 Clean Water Act. They present an overview of the issues, parties and course of this dispute. They then identify important substantive and procedural lessons to be drawn from this case. Substantively, they explore the use of uniform technology-based standards. Procedurally, more flexible and open negotiations would improve the quality and productivity of EPA rule-making.
In their Conclusion the editors identify three themes which run through the previous case studies. First, informal negotiations can successfully resolve environmental regulatory disputes. Second, negotiated settlements may produce more beneficial outcomes than litigated settlements. Third, use of mediators can be helpful, particularly in suggesting mutually beneficial options to disputants.
Resolving Environmental Regulatory Disputes presents detailed case studies of the use of informal negotiation in environmental regulatory disputes.