Environmental Dispute Resolution: An Anthology of Practical Solutions

The Section and ABA Publishing published the book, Environmental Dispute Resolution: An Anthology of Practical Solutions” in August 2002. First released at the 2002 World Summit in Johannesburg, this book is a toolkit of systems, strategies, and methodologies, and practical tips drawn from the collective experience of its diverse group of talented authors.

Why This Book? The last twenty-five years of global change have witnessed a fundamental shift in the way individuals and communities, business and governmental enterprises, regulatory authorities, and non-governmental organizations think about the natural environment and economic development. No longer regarded as mutually exclusive objectives, economic development and environmental protection are increasingly perceived as interdependent and equally urgent goals. A healthy economy must control pollution to sustain a healthy population. Alleviation of poverty requires continued economic growth. Sustainable economic development requires protection of the environmental resources that are essential to continued human habitation of the planet. How can business organizations seeking profit, and communities seeking enhanced prosperity, protect the natural environment and its essential resources while accomplishing those goals? How can environmental lawyers, risk management consultants, and dispute resolution professionals contribute to the development of enduring and sustainable solutions?

Why Now? How can counsel best help clients to develop sustainable solutions? Environmental, energy and resource lawyers need an expanded range of problem-solving tools in this environment. Those who fail to do so will not be able to meet client expectations or compete successfully in the evolving future. For those who intend not just to survive, but also to thrive in the evolving environment, this book is a toolkit of systems, strategies and methodologies, and practical tips drawn from the collective experience of its diverse group of talented authors.

About the Book. This book is not about litigation strategies, about which abundant resources already exist, or a scholarly treatise analyzing questions and proposing alternative approaches. Instead, it is an anthology of practical solutions that collectively provide an analytic framework for successful resolution of a wide variety of conflicts and disputes that can arise out of the tension between economic development and environmental protection objectives. It draws on a wealth of experience through its diverse authors, who include lawyers in in_house, private and government practice; risk management and settlement advisory consultants; and EDR professionals with a variety of professional backgrounds.

Not just a compilation of randomly ordered chapters, Environmental Dispute Resolution: An Anthology of Practical Experience provides comprehensive and thoughtful treatment of the topic for the serious student, and also highly practical guidance in specific substantive contexts for those who may wish to focus on one or a few of its chapters. Editors Ann MacNaughton, a founding vice-chair of the Section’s ADR Coordinating Group, and Jay Martin, a past Section Council member, provide in their first chapter a practical framework for analyzing environmental conflicts and disputes, regardless of context. Chapter 2 was written by founding ADR Coordinating Group Chair Russ Carparelli; it lists tasks common to the resolution of most disputes and the challenges they present when EDR participants seek solutions outside the scope of familiar rules of civil procedure and evidence. Chapter 3, written by Jay Martin and his partner Jay Madrid at Winstead, Sechrist & Minick, describes the advantages of mediation and arbitration in resolving disputes with significant environmental issues.

Chapters 4 through 10 describe important lessons learned from actual experience in managing conflict and resolving disputes in a variety of contexts where economic development and environmental protection objectives are in conflict. Ellie Tonkin, who directs the U.S. Environmental Protection Agency New England Regional ADR Program in Boston, contributed Chapter 4, Mediating With an Environmental Enforcement Agency. Chapter 5, Effective Settlement Strategies in Public Disputes, is written by Peter Bowman, director of the UH Clear Lake Center for Conflict Management and Analysis. ADR Coordinating Group Chair Robin Juni wrote Chapter 6, Public Access to EDR Processes: US and UK Trends Toward a Common Approach. Texas trial lawyer Bill Allison is the lead author for Chapter 7, Effective Settlement Advocacy in Mass Tort Disputes. Bob Dahlquist, a partner in the San Diego office of Latham & Watkins (LA) who has served as the ABA Business Law Section’s liaison to the Standing Committee on Environmental Law, took the lead on Chapter 8, Resolving Superfund Cost Recovery Disputes Outside the Courtroom and Chris Heckman, general counsel to ExxonMobil’s Risk Management Group took the lead on Chapter 9, Effective Settlement Advocacy in Environmental Insurance Coverage Disputes. Nancy Oretskin, co-director of the U.S.-Mexico Conflict Resolution Center in Las Cruces, New Mexico, took the lead on Chapter 10, Is Mediation a Better Alternative for the Resolution of International Environmental Disputes?

John Barkett, who serves as co-chair of the ABA Litigation Section’s Environment Committee, wrote Chapter 11, Ethical Issues in Environmental Alternative Dispute Resolution Processes, which addresses ethics issues that may arise in EDR situations. Editors MacNaughton and Martin wrote the final Chapter 12, Managing Environmental Conflict and Disputes for Improved EDR Results, which describes how 20th century lessons learned in conflict management, environmental management and knowledge management can be applied to improve results significantly in situations where environmental protection and economic development objectives are (or are perceived to be) in conflict and includes checklists for designing appropriate EDR systems; negotiating ground rules; and selecting suitable neutral resources. Appendices include U.S. EPA’s Lee Scharf’s comprehensive annotated bibliography of environmental dispute resolution literature.