Alternative Dispute Resolution in Environmental Lawt Frank P. Grad* TABLE OF CONTENTS I. Introduction.... ............................ 157 A. The Applicability of ADR in Environmental Law . 157 B. Early History and Acceptance of ADR in Environmental Disputes ...................... 159 II. Negotiated Rule-Making ......................... 162 III. Consent Decrees to Enjoin Discharges of Pollutants, and the Settlement of Cleanup Obligations under CERCLA ..................................... 169 A. Introduction ....................... ........ 169 B. Approval of Court Decrees ................... 169 C. Interim CERCLA Settlement Policy ............ 170 D. Interim Guidance: Streamlining the CERCLA Settlement Decision Process .................. 172 IV. ADR in Environmental Enforcement ............... 173 V. ADR in Land Use and Public Lands and Resource Problems ..................................... 177 VI. The Uses and Limits of ADR in Environmental Cases 183 A. Recurring Problems and Questions ............. 183 B. ADR or Litigation .................... ...... 185 I. INTRODUCTION A. The Applicability of ADR in Environmental Law The term "Alternative Dispute Resolution" (ADR) is used to cover a number of nonadjudicatory approaches to the problems of environmental law. t Adapted from 3 GRAD, TREATISE ON ENVIRONMENTAL LAW, c. 15 (1988), by permission of Matthew Bender, Inc. * Joseph P. Chamberlain Professor of Legislation; Director, Legislative Drafting Re- search Fund, Columbia University School of Law. 157 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 The application of techniques of dispute resolution as an alter- native to litigation is appropriate in environmental disputes be- cause environmental litigation is likely to be complex, protracted and expensive. Some environmental disputes may lend them- selves to dispute resolution and settlement techniques because the economic ramifications are not the primary issues in the case. Other environmental disputes-particularly those involving haz- ardous waste cleanups under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)-lend themselves to dispute resolution because such sizeable economic costs are at stake that settlement of issues of apportionment are essential because of the substantial element of risk in leaving the outcome to the uncertainties of litigation. Much environmental litigation deals with the review of stan- dards and regulations. The regulatory and standard setting pro- cess under pollution-control legislation, such as the Clean Air Act, the Clean Water Act, or the Resource Conservation and Re- covery Act (RCRA), is well defined in the legislation, and so are the procedural requirements for judicial review. But standards could be agreed upon in advance by groups representing indus- trial and environmental interests. As yet infrequent in practice, "negotiated rule making" has been advanced as an alternative to the process of adoption of regulations at the end of a judicial re- view process. Different opportunities and problems present themselves in the process of environmental enforcement. In the pollution control field, whether enforcement is undertaken by EPA, a state environ- mental agency, or a citizen group acting under a citizen suit provi- sion, there is little leeway for dispute resolution, because the public interest in enforcement of the law cannot be compromised. There is one area, however, in the enforcement or compliance area, where settlement and dispute resolution has increasingly found a place, namely in the area of CERCLA and RCRA cleanup orders, where cleanup obligations and shared liabilities are com- monly adjusted and settled before incorporation of the terms in a consent decree. Another possible arena for dispute resolution is the broad area of developmental issues; the "build/don't build" question, raised by both public and private development projects that have an en- vironmental impact. Whether this is an area for dispute resolu- tion depends on the nature of the developmental project. Very 158 Alternative Dispute Resolution often there is little room for compromise of the build/don't build decisions, particularly when the nature of a project calls for sub- stantial economic commitment to a project whose environmental consequences cannot be wholly limited or controlled if the pro- ject is to be built as, for instance, in the case of a nuclear power plant. In other developmental projects, however, there may be not only a question of whether or not to build, but also how to build. There may be room for discussion of whether to build a larger or smaller building, where and how to route the road, or where and how to place the sewage fallout. In some construction or devel- opment projects, there may also be a possibility of mitigation measures. Where a development project is likely to destroy the habitat of an endangered species, for instance, it may be possible to negotiate the acquisition of alternative habitat to mitigate the impact of the project. B. Early History and Acceptance of ADR in Environmental Disputes In reviewing the history of environmental dispute resolution from 1974 to 1984, two experienced commentators note "that most experience today with the application of alternative dispute resolution procedures to environmental issues has involved in- dependent mediators assisting in the resolution of sight-specific or policy-related environmental disputes."' Summarizing their experience, they note that mediation appears to be the most ap- propriate technique, because "in many environmental disputes, the parties have no prior negotiating relationships; the disputes tend to be interorganizational rather than interpersonal; they in- volve multiple parties with wide disparities in power and re- sources; there may be technical issues involving data interpretation and scientific uncertainties; and the disputes may involve issues affecting the broader public interest. These factors tend to lead to complex negotiations where the assistance of a neutral third party is helpful to convene and manage the negotiations."2 Recounting the early history of environmental mediation, the authors refer to the role of the Ford Foundation and other orga- 1. Bingham and Haygood, Environmental Dispute Resolutions: The First Ten Years, 41 THE ARBITRATION J., No. 4, page 3, at 4 (Dec. 1986). 2. Id. 1989] 159 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:157 nizations that sponsored and provided material support for early environmental mediation efforts.3 The support of the Ford Foun- dation and of the William A. and Flora Hewlett Foundation re- lieved early mediation efforts of the significant problem of which side would pay the mediator.4 The National Institute for Dispute Resolution (NIDR) is developing a revolving fund in order to re- solve the problem of the payment of mediator's fees. A number of states, including Massachusetts, Rhode Island, Texas, Virginia, and Wisconsin adopted legislation in the 1970's to provide for the settlement by way of negotiation of the siting of solid or haz- ardous waste facilities. The entire field received a significant boost when, in 1982, the Administrative Conference of the United States (ACUS) recom- mended policy guidelines for what is now referred to as negoti- ated rule-making. Five Federal agencies, namely the Department of Transportation, EPA, the Occupational and Safety Health Ad- ministration, the Federal Trade Commission, and the Department of the Interior, adopted procedures that follow the recommenda- tions, providing for the negotiated agreement on the language of the regulation between interested parties, including the regulated community and administration officials charged with the develop- ment of such regulations.5 In consequence of the increased use of alternative dispute reso- lution methods, the field of environmental mediation has become professionalized, and a number of centers for the teaching and analysis of dispute resolution procedures and mechanisms have been established.6 Other significant early professional meetings have also been reported on.7 Reporting on the first ten years of environmental dispute reso- lution from 1974 to 1984, Bingham and Haygood, experienced early practitioners in the environmental mediation field, relate the following: 3. Id. at 6. 4. Id. 5. 47 Fed. Reg. 30.708-10 (July 15, 1982). 6. E.g., National Institute for Dispute Resolution, Program on Negotiation, Harvard Law School; this effort is said to have its origins in 1980, when the Ford Foundation spon- sored a two-day meeting of about 20 representatives of groups active in the environmental dispute resolution area to explore the professionalization of the field. Bingham and Haygood, supra note 1, at 7. 7. Meeting of Environmental Dispute Resolution Professionals, (sponsored by the Hew- lett Foundation) (1982). Bingham and Haygood, supra note 1, at 8. 160 Alternative Dispute Resolution Land use. About 70 site-specific and 16-policy level land-use disputes have been resolved with the assistance of a mediator. They have involved neighborhood and housing issues, com- mercial and urban development issues, parks and recreation, preservation of agricultural land and other regional planning issues, facility siting, and transportation. Natural resource management and use of public lands. Mediation has been used in 29 site-specific and four policy-level contro- versies, involving fisheries resources, mining, timber manage- ment, and wilderness areas, among others. Water resources. Among the 16 site-specific cases and one pol- icy level case that involved water resources, the issues in dis- pute included water supply, water quality, flood protection, and the thermal effects of power plants. Energy. In this area, ten site-specific and four policy-level cases involved such issues as siting small-scale hydroelectric plants, conversion of power-plant fuel from oil to coal, and ge- othermal development. Air quality. Odor problems, national air quality legislation, and acid rain were the topics of six site-specific cases and seven policy dialogues. Toxics. National policy on the regulation of chemicals, plans for removal of asbestos in schools, pesticides, and hazardous materials cleanup were among the issues discussed in five site- specific cases and 11 policy dialogues.8 ADR has been used with varying degrees of success in many areas of environmental policy-making, standard setting, the de- termination of development choices, and -in the enforcement of environmental standards. It has been recognized and given a for- mal role by way of federal policy guidelines or regulations in the area of negotiated rule-making, and in the area of settlement of disputes primarily affecting the disposal of solid and hazardous waste, under CERCLA and RCRA. The formal documents that reflect federal acceptance of dispute resolution approaches in- clude the interim CERCLA settlement policy,9 the Department of Justice policy on consent judgments in actions to enjoin dis- charges of pollutants,'0 the interim guidance document on streamlining the CERCLA settlement decision process, "x and gui- dance on the use of alternative dispute resolution techniques in enforcement actions.12 8. Bingham and Haygood, supra note 1, at 9. 9. 55 Fed. Reg. 5034 (Feb. 5, 1985). 10. 28 C.F.R. § 50.7 (1987). 11. EPA, Feb. 12, 1987. 12. EPA, Aug. 6, 1987. 1989] 161 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:157 II. NEGOTIATED RULE-MAKING In 1982, the Administrative Conference of the United States adopted Recommendation 82-4, 1 C.F.R. § 305.82-4, to en- courage the use of regulatory negotiations by federal agencies in appropriate situations.'3 The recommendation refers to dissatis- faction with the established rule-making process which had be- come increasingly adversarial and unduly formalized. The introduction to the Recommendations notes that since recom- mendation 82-4 was first adopted, its procedures have been fol- lowed four times by federal agencies, including its use by the Federal Aviation Administration for a new flight and duty time regulation for pilots; by EPA for proposed rules on nonconform- ance penalties for vehicle emissions and on emergency exemp- tions from pesticide regulations; by the Occupational Safety and Health Administration to encourage labor, public interest and in- dustry representatives to negotiate a standard for occupational exposure to benzine. The benzine negotiations, however, did not result in an agreement on a proposed rule, though the other three efforts were successful.14 Based on these successes, ACUS de- cided to supplement the recommendation. As supplemented and revised the recommendations were reissued in 1985 as Recom- mendation 85-5. Recommendation 82-4 was not, however, with- drawn; rather, ACUS intended both the Recommendations to be considered together as a guide, but not a formula to be followed. The introductory material to Recommendation 85-5 recognizes that in negotiated rule-making, a great deal depends on the par- ticipants, the negotiating style, the perception of the agency's po- sition by interested parties, and other aspects of what is described as an intrinsically fluid process. The introductory material also notes that the agencies that have worked with negotiated rule- making have not found the Federal Advisory Committee Act to be an impediment to effective negotiations. Also, the assertion is made that the cost of negotiated rule-making will be offset by long-range savings. Agencies should also be aware that there are opportunities for assistance within the government, including training provided by the Legal Education Institute of the Depart- ment of Justice, and mediation assistance by the Federal Media- 13. Procedures for Negotiating Proposed Regulations, I C.F.R. §§ 305.82-4, 305.85-5. 14. Introduction to Recommendation 85-5, 1 C.F.R. § 305.85-5 (1988). 162 Alternative Dispute Resolution tion and Conciliation Service and the Community Relations Service. It is clear that the recommendations are very general in scope. The agency sponsoring negotiated rule-making is to take part in negotiations. The agency representatives participating should be sufficiently senior to express agency views with credibility.' 5 Par- ticipants in the process should be motivated by the view that a negotiated agreement will provide a better alternative than rules developed under traditional processes. The need for realistic ex- pectations by all participants is stressed throughout. While nego- tiations can be useful at different stages of the rule-making process, negotiations should be used to help develop a notice of proposed rule-making for publication in the Federal Register, with negotiations to be resumed after comments on the contents of the notice are received. The agency should also consider providing an opportunity for training sessions in negotiating skills and should select a person skilled in techniques of dispute resolution to assist the negotiating group in reaching an agreement. The designation of such a person to be mediator, facilitator, or con- vener is encouraged, though the convener need not take on the role of one performing the other functions.16 Federal agencies such as the Federal Mediation and Conciliation Service or the Community Relations Service of the Department of Justice may be appropriate sources of mediators or facilitators.'7 Attention is called to the need to address internal disagreements within par- ticular constituencies. Appropriate planning in the selection of representatives is advised. As originally proposed in 1982, Congress was urged to author- ize agencies to designate a convener as part of the general rule- making process. The anticipation reflected in the earlier Recom- mendation was that the convener would conduct a preliminary in- quiry to determine whether a regulatory negotiating group should be empaneled to develop the proposed rule. The con- vener was to (1) weigh the possibility that a consensus rule would constitute an unreasonable restraint on competition; (2) deter- mine whether the issues to be raised in the proceeding are ready for decision; (3) determine whether the interests significantly af- fected were such that individuals could be selected to represent 15. 1 C.F.R. § 305.85-5, Recommendation 1. 16. Id., Recommendation 2-5. 17. Id., Recommendation 6. 1989] 163 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw (Vol. 14:157 such interests adequately; and (4) ensure that no single interest- including the agency itself-would be able to dominate the negotiations. One of the possibilities considered in the Recommendations is that the subject matter of the proposed regulation would be within the jurisdiction of an existing committee of a non-govern- mental standard writing organization that can ensure the fair rep- resentation of respective interests, and if such a committee exists, that the convener then recommend that the negotiations be con- ducted under such committee's auspices.'8 To make sure that appropriate interests have been identified and have had the opportunity to be represented in the negotiat- ing group, the plan to proceed by negotiated rule-making is to be published by notice in the Federal Register, in order to provide an opportunity for full representation of interested groups.'9 The Recommendations also suggest that a senior agency official be designated to represent the agency and that the official be identi- fied in the Federal Register.20 The Recommendations go on to note that in order to assure broad-based representation it may sometimes be necessary to re- imburse members of some groups for their participation and that such reimbursement should be provided for by the appropriate agencies.21 In some instances, the Recommendations indicate, it may be appropriate to select a mediator to advance the negotiat- ing process.22 The negotiating group should seek to arrive at a consensus on the proposed rule. Once a consensus has been achieved, a report should be prepared, and in the absence of consensus, a report should be prepared identifying the areas in which no consensus could be reached. The agency is to publish the negotiated text of the proposed rule in its notice of proposed rule-making. If the agency does not publish the negotiated text as a proposed rule it should explain its reasons, and if it proposed amendments or modifications, the text should indicate what is the work of the agency and which part was prepared by the negotiating group.23 18. 1 C.F.R. § 305.82-4, Recommendation 3-6. 19. Id., Recommendation 7. 20. Id., Recommendation 8. 21. Id., Recommendation 9. 22. Id., Recommendation 10. 23. Id., Recommendation 13. 164 Alternative Dispute Resolution The negotiating group is to be afforded an opportunity to review comments received, so that the participants may determine whether their recommendations should be modified. The final responsibility for the rule, however, remains that of the agency.2 4 The analysis and research on which the recommendation of the Administrative Conference of the United States relating to nego- tiated rule-making was based, was published by its author. In Ne- gotiating Regulations: A Cure for Malaise,25 Professor Harter criticizes the adversarial rule-making system that had developed and stresses the advantages of negotiated rule-making. In his de- tailed article, Professor Harter notes the advantages of rule-mak- ing by negotiation, stressing that, "[t]he prime benefit of direct negotiations is that it enables the participants to focus squarely on their respective interests. They need not advocate and maintain extreme positions before a decision-maker. Therefore, the par- ties can develop a feel for the true issues that lie within the advo- cated extremes and attempt to accommodate fully the competing interests."26 Focusing on their true interests, the parties will be able to make trades and realize their true interests. He also as- serts that negotiated rule-making would add to the legitimacy of regulations because all of the parties who participated would view it as reasonable and endorse it without a fight.27 Professor Harter analogizes negotiated rule-making to the de- velopment of consensus standards which have been developed through standard writing organizations in such areas as electrical and building codes, product safety standards and work place safety and health standards.28 He also refers to experience gained in the process of the settlement of lawsuits challenging rules promulgated by an agency. He refers to certain noteworthy settlements in the solid and hazardous waste area.29 And he fre- quently refers to the National Coal Policy Project, in which indus- try, needing more coal for the generation of electric power, met for about two years with representatives of environmental groups to discuss coal issues. A number of government agencies, foun- dations, and a number of private corporations provided funding 24. Id., Recommendation 14. 25. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEORGETOWN L. J. 1 (1982). 26. Id. at 29. 27. Id. at 31. 28. Id. at 35. 29. Id. at 37. 1651989] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 for the undertaking and task forces were developed to deal with particular coal issues. The participants in the National Coal Pol- icy Project reached agreement on many recommendations. These recommendations were not themselves incorporated in any rule- making, though they served as the basis for the development of rules in the course of time.30 Professor Harter also refers to the developing field of environmental negotiation and to the growing literature in that area.3 ' In his article, Professor Harter outlines the necessary elements for successful negotiation, including the need to realize the rela- tive powers of the participants; the need to have a limited number of participants; the need to focus on issues that are ready for deci- sion; the need to make decisions lest some other agency under- take to do so; and the view that all of the parties must have something to gain in the process. There must also be a measure of agreement on certain fundamental values, or else a decision to stay away from global value-laden issues on which no consensus can be achieved. Other necessary conditions involve the aware- ness of parties to the possibility of trade-offs and a view that re- search is not determinative of outcome, because although research may be necessary, none of the parties is likely to commit themselves to conclusions based on the outcome of research.32 It is also necessary that there be commitment to implement the agreement reached. An agreement is more likely "when no single party can dictate the results without incurring an unacceptable sanction from the other parties."33 The negotiation process is analyzed in considerable detail in the article, with the need for agency participation in the negotia- tions being stressed.34 The need for the identification of interest and appropriate representatives is also stressed, as is the need for the participants' commitment to negotiate in good faith.35 Pro- fessor Harter also discusses the ground rules for negotiations, re- 30. Where We Agree: Report of the National Coal Policy Project, as reported in Harter, at 38- 40. 31. CEG Conservation Foundation Newsletter, RESOLVE. See also BINGHAM, VAUGHN, AND GLEASON, ENVIRONMENTAL CONFLIcT RESOLUTION (1981), an annotated bibliography published by the Conservation Foundation. 32. Harter, supra note 25, at 50-51. 33. Id. at 51. 34. Id. at 57, 59-66. 35. Id. at 73. 166 Alternative Dispute Resolution lying to some extent on earlier work in the field.36 He also deals with appropriation of the draft of an agreement, and the problem of building a consensus.3 7 The agency's role in dealing with a negotiated rule-making pro- posal is analyzed, and Professor Harter suggests that the agency administrator and senior staff should review the proposal for con- sistency with law and agency policy, as they would an internal briefing document. There is clearly a need to reconcile the agency's final responsibility with a need to accommodate the con- sensus reached earlier.38 Rather unusual problems arise in the traditional review of a ne- gotiated rule. The reviewing court is obviously under an obliga- tion to follow the normal requirements of judicial review of administrative rule-making, but there may be special problems as to whether a party challenging the rule was represented in the course of negotiations. Harter also takes the position that a "party which refuses to participate fully in the negotiations should be estopped from challenging the regulation after the pro- cess has run its course."3 9 Though acknowledging some of these difficulties, the author of the proposal concludes that it has good prospects for success and is worth a try in a variety of circumstances. The special problem of judicial review of negotiated rule-mak- ing has received some comment. In a presentation to the 1984 National Conference on Environmental Dispute Resolution, Judge Patricia M. Wald has commented on the potential for a changed role of the courts in the course of such a judicial re- view.4 0 Judge Wald raises the issue whether negotiated rules call for the same deferential homage to agency expertise as do agency regulations of the more traditional kind.41 Judge Wald also sur- mises that reviewing courts are not likely to have an easier task than before. She mentions that "environmental mediation or ne- gotiation is a promising infant with unknown potential and a 36. WESSEL, THE RULE OF REASON (1976); SCIENCE AND CONSCIENCE, 144-45 (1980). 37. Harter, supra note 25, at 83-99. 38. Id. 99-102. 39. Id. at 105. 40. Wald, Negotiation of Environmental Disputes: A New Role for the Courts?, 10 COLUM. J. ENvrL. L. 1 (1985). The article is an expanded version of Judge Wald's earlier presentation. 41. Id. at 17-25. 1989] 167 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 short track record."42 A recent study concluded that mediation or negotiation could be successful, at best, in ten percent of envi- ronmental cases-specifically where the issues are clearly defined, where there is a balance of power among the parties, and where the disputes are not ideologically based.43 Judge Wald also refers to Jeffery Miller's report on recently ne- gotiated water pollution guidelines for the steel industry, that "settlements appear to be the exception but not the rule in envi- ronmental disputes."44 In reviewing Harter's proposal, Judge Wald is particularly troubled by the problem of having to deter- mine whether all the "appropriate interests" were involved in the negotiations and represented in the consensus, when, for exam- ple, an outside party challenges the rule.4 5 The Judge comments that in her view the judicial role will not entail any abdication of duty to ensure that agency action promotes the public interest as determined by Congress. Put most directly, the Judge suggests that consensus among the parties cannot bind the agency to do something other than that commanded by law. Otherwise, Judge Wald notes, "[t]he amputation of meaningful judicial review from settlement or negotiated regulations in the environmental field would make these ADR techniques far less attractive to some of the parties as instruments of justice."46 In his response to Judge Wald's views, Professor Harter stresses the need for sound consensus building, and does not on the whole disagree with Judge Wald's position that the represen- tation of interest groups, the nature of the participation, and the procedures applied in working out a consensus are important problems and issues in negotiated rule-making. Moreover, he concedes that a party should not be precluded from seeking re- view because its "interest" was allegedly represented in the nego- tiation that led to the rule.4 7 42. Id. at 11. 43. Id. at 7, citing TALBOT, SETILING THINGS: Six CASE STUDIES IN ENVIRONMENTAL ME- DIATION 91 (1983). 44. Id. at 7, citing Miller, Steel Effluent Limitations: Success of the Negotiating Table, 13 ENVrL. L. REP. (Envtl. L. Inst.) 1094 (1983). 45. Id. at 20-21. 46. Id. at 33. 47. Harter, The Role of Courts in Regulatory Negotiation-A Response to judge Wald, 11 COLUM. J. ENvTL. L. 51, 67 (1986). 168 Alternative Dispute Resolution III. CONSENT DECREES TO ENJOIN DISCHARGES OF POLLUTANTS, AND THE SETTLEMENT OF CLEANUP OBLIGATIONS UNDER CERCLA A. Introduction The matter of consent decrees and settlement of cleanup obli- gations under CERCLA is only partially a matter for ADR because the consent decree or settlement is the result of earlier enforce- ment litigation, frequently of an extended and protracted kind, which has defined and limited the areas for agreement and settle- ment.4 8 At the point, however, at which enforcement has progressed to judgment, the nature of the judgment may become a matter for negotiation and consensual arrangements. More- over, there are many instances, when parties may wish to shorten the litigation process, concede liability, and focus their efforts on working out the terms of an agreement to be incorporated in a consent decree. Increasingly and perhaps overwhelmingly, the precise nature of a responsible party's obligations become the subject of an agreement to be incorporated in a consent decree.4 9 The working out of such agreements has many characteristics similar to ADR, and will be appropriately dealt with as part of that broader subject. B. Approval of Consent Decrees An early guide to working out consent judgments was promul- gated by the Justice Department in 1973.50 The regulation states the policy of the Department of Justice to consent to proposed judgments in actions to enjoin discharges of pollutants only on the condition that an opportunity to comment on the proposed judgment prior to its entry be afforded to persons who are not named as parties. The judgment is to be filed well in advance of its entry and comments on it are to be received, and, depending on the nature of the comments, the Department may withhold its consent to the entry of the judgment. The Assistant Attorney General in charge of the Land and Resources Division may estab- lish procedures to implement the policy. 48. See GRAD, IA TREATISE ON ENVIRONMENTAL LAW, c. 4 and 4A (1987). 49. Id. at § 4A.02 [1][f]. 50. Consent Judgments in Actions to Enjoin Discharges of Pollutants, 20 C.F.R. § 50.7. 1989] 169 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 C. Interim CERCLA Settlement Policy A more far-reaching and substantial EPA policy declaration re- lating to the cleanup of hazardous waste sites was established and most recently amended on February 5, 1985, relating to the cleanup of hazardous waste sites under CERCLA.51 Of particular significance in the consideration of the interim settlement policy are Part IV of the policy declaration dealing with settlement crite- ria and Part VIII of this declaration dealing with targets for litigation. Under Part IV of the settlement criteria, EPA states that its ob- jective in negotiations is to collect one hundred percent of cleanup costs or to get complete cleanup from responsible par- ties. The agency may, however, consider accepting offers of less than one hundred percent depending on a variety of factors. These include the volume of waste contributed to the site by each potentially responsible party (PRP), the nature of the waste de- posited, and the strength of the evidence tracing the waste at the site to the settling parties. Finally, the criteria to help determine whether to adopt a settlement include the ability of the settling parties to pay, the litigation risks in proceeding to trial, public interest considerations, precedential value, and the value of ob- taining a present sum certain. Whether inequities and aggravat- ing factors exist are also matters to be considered. It should be noted, however, that the settlement criteria are criteria an attor- ney will apply in weighing the advantages of going to trial over the advantages of settling, thus leaving little scope for the less restrictive considerations which normally enter into alternative dispute resolution. The same general approach is reflected in Part VIII, Targets for Litigation, setting forth such factors for referral of cases for litiga- tion as (1) whether substantial environmental problems exist; (2) whether the agency's case has legal merit; (3) whether the amount of money or cleanup involved is significant; and (4) whether the creation of good legal precedent is possible. The settlement pol- icy states that cases should be rejected if the potential for adverse precedent is substantial. Other factors in identifying particular cases for referral include: (1) whether the evidence is strong and well-developed; (2) whether statute of limitations problems exist; and (3) whether responsible parties are financially viable. 51. 55 FED. REG. 5034 (Feb. 5, 1985). 170 Alternative Dispute Resolution The EPA Interim CERCLA Settlement Policy was commented upon by Richard H. Mays, who at the time was senior enforce- ment counsel in EPA's Office of Enforcement and Compliance Monitoring.52 The comment expressly notes that EPA will first undertake an evaluation of the case against the settlement criteria before negotiations under the settlement policy will proceed.53 Noting that settlement offers from PRPs must generally constitute a substantial portion of the cost of cleanup, the author mentions a number of exceptions, including instances where total cleanup costs are less than $200,000, where the PRP is in bankruptcy, or where settlements involve de minimis contributors of waste. In his conclusion, the author repeats the statement of the interim policy itself, namely that the best incentive to cleanup is a vigor- ous EPA enforcement program. The settlement policy is seen as advancing this incentive by providing clearer ground rules to be met at the bargaining table.54 The Interim CERCLA Settlement Policy may be used as the ba- sis for ADR in working out the obligations of PRPs to EPA and to each other. Unlike the post-SARA Interim Guidance document that is referred to infra,55 the CERCLA Settlement Policy is con- cerned primarily with protecting the Superfund-i.e., it is not designed to afford an opportunity for inventive approaches to work out settlements, as would be the case if the settlement policy were a general authorization for alternative dispute resolution. The settlement policy is, rather, a guide to EPA to allow settle- ments only if they will protect the Superfund pot of gold to the same extent as would a favorable judgment. The restrictive nature of EPA CERCLA settlement policies has been analyzed and placed in historical perspective (following the Burford-Gorsuch era of sweetheart settlements at EPA) by Dean Frederick R. Anderson,56 who, following a searching analysis of CERCLA and its administration, and following a detailed account of ADR approaches and negotiated rule-making, concludes that such approaches should be adopted to "negotiated cleanups 52. Mays, EPA s Superfund Settlement Policy. THE ENvTL. FORUM, Feb. 1985 at 6. 53. Id. at 8. 54. Id. at 16; See also Ramsey, Settlement in Environmental Cases, ALI-ABA COURSE OF STUDY, ENVIRONMENTAL LITIGATION (1985) at 941-986. 55. See infra notes 56-57 and accompanying text. 56. Anderson, Negotiation and Informal Agency Action: The Case of Superfund, 1985 DUKE L. J. 261 (1985). 1989] 171 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:157 under CERCLA." 57 It seems that the enactment of section 122 of the Superfund Amendments and Reauthorization Act of 1986 (SARA) provides an opportunity for the adoption of Dean Ander- son's proposal.8 D. Interim Guidance: Streamlining the CERCLA Settlement Decision Process On February 12, 1987, following the enactment of section 122 of SARA, EPA published a memorandum, entitled Interim Gui- dance: Streamlining the CERCLA Settlement Decision Process. Noting that Congress had recognized the value of facilitating the settlement process and also noting that section 122 of SARA was largely based on EPA's interim settlement policy, the Agency states that the new memorandum is intended to increase the par- ticipation of PRPs in response actions. The new provisions under section 122 relating to special notice procedures, the need for sharing information, and negotiation moratoria, tend to strike a balance between the policies of promoting more settlements, con- serving limited government resources, and minimizing the delay in the cleanup process. The settlement improvements advanced in the memorandum focus on (1) earlier, better searches for responsible parties; (2) earlier notice and information exchange; (3) initiating settlement discussions earlier; and (4) the preparation of a strategy and draft settlement document. The effort here undertaken is to advance the settlement process by giving earlier notice to PRPs of poten- tial liability, and responding promptly to information requests so as to allow PRPs to become fully aware of other responsible par- ties who may be part of the negotiation. The memorandum also requires regional staff to prepare a ne- gotiation policy for regional management review. Such a strategy is to include initial' and bottom line positions on major issues con- taining settlement objectives, a schedule of negotiations provid- ing for final dates, as well as interim milestones for negotiation, and a strategy and schedule for action in the event negotiations are unsuccessful. Provisions are made in the memorandum for management review of settlement decisions, and on the role of the regional administrator in the process. The creation of a Set- 57. Id at 349-77. 58. CERCLA § 122, 42 U.S.C. § 9622(b)(3) (Supp. IV 1986). 172 Alternative Dispute Resolution tiement Decision Committee (SDC), to provide timely action on issues requiring headquarters review is also provided for. The main emphasis of the interim settlement policy is on the settlement for cleanup costs between EPA and PRPs. A major area for dispute, however, is the question of apportionment of responsibility and liability as between PRPs-all of whom are jointly and severally liable unless liability is apportioned among them. SARA section 122, in providing sources of information, goes some distance in addressing the problem, as it does with re- spect to the preparation of guidelines for preparing non-binding preliminary allocations of responsibility.5 9 The issue of allocation of liability and responsibility between PRPs is of current and in- creasing importance.60 IV. ADR IN ENVIRONMENTAL ENFORCEMENT EPA has long emphasized settlement in instances in which the law provides for civil enforcement. Although for many years the overwhelming number of cases involving civil enforcement were settled, it was not until August 6, 1987, that EPA published its internal memorandum, Guidance on the Use of Alternative Dispute Resolution Techniques in Enforcement Actions. The introduction to the memorandum notes a ninety-five per- cent success rate in the settlement of civil enforcement cases. While the negotiation process between the representatives of the government and the alleged violator has thus shown itself to be very effective, another means of reaching a solution, namely ADR, has evolved. Such a detailed technique, including arbitration and mediation, which have long been accepted in commercial, domes- tic and labor disputes are also adaptable to environmental en- forcement. The introduction notes that ADR provisions can also be incorporated in judicial consent decrees and consent agree- ments ordered by administrative law judges. The memorandum: (1) establishes policy to use ADR in the res- olution of appropriate civil enforcement cases; (2) describes some of the applicable types of ADR; (3) formulates case selection pro- cedures; (4) establishes qualifications for third party neutrals; and 59. CERCLA § 122, 42 U.S.C. § 9622(b)(3) (Supp. IV 1986). 60. Bernstein, The Enviro-Chem Settlement: Superfund Problem Solving, 13 ENVTL. L. REP. (Envtl. L. Inst.) 10,402 (1983); see also Ramsey Settlement in Environmental Cases, supra note 54, discussing the settlement and consent decree in U.S. v. A & F Materials, C.A. #83- 3123 (S.D. Dec. 1984). 1731989]1 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 14:157 (5) formulates case management procedures for cases in which some or all issues are submitted for ADR. The memorandum defines the mediator as a "third party neu- tral" who should facilitate the exchange between the party and serve as an assessor, but not as a judge of the positions taken by the .parties during the negotiation. With respect to arbitration, the memorandum notes that for the present EPA appears to be restricted by law to use binding arbitration only for small CER- CLA recovery cases. Its use for the decision of other factual is- sues is to be considered. Another device examined is that of mini-trials to permit parties to present their case, or an agreed upon portion of their case, to principals who have authority to settle their dispute. Such a prin- cipal may be the vice president of a company, a senior EPA offi- cial, or if agreed to by the parties, a neutral third party advisor. Summaries and abbreviated presentations may be provided for and limited discovery may precede the case presentation. The ADR mechanism of the mini-trial is useful in narrowing factual issues or mixed questions of law and fact, and may give principals a realistic view of the strengths and weaknesses of their cases. The memorandum also lists the characteristics of enforcement cases suitable for ADR. EPA suggests cases which have been filed and pending in a court for a number a years without significant movement toward resolution as prospective candidates for the use of ADR. Other cases appropriate for ADR are those present- ing impasses, or the potential for impasses, or those in which re- source considerations apply and in which ADR can achieve resource efficiency for the EPA. The memorandum notes the increasing frequency in environ- mental cases of the use of special masters to deal with complex issues. It also notes that the government should give considera- tion to anticipating the referral to a master by the court by sug- gesting that the parties themselves select a mediator to assist in negotiations or an arbitrator to determine factual issues. The memorandum indicates an openness to consider ADR in in- stances where the parties demonstrate their willingness to use it. ADR may also be used effectively when one of the affected par- ties is not subject to an enforcement action. In some instances, the involvement of such person may facilitate the resolution of environmental problems. An example of this would be in the case of a state or local government unit that has expressed an interest 174 Alternative Dispute Resolution in the matter but is not a party. As well, ADR may be useful when a citizen group has expressed or is likely to express an interest on the matter, or the remedy is likely not only to affect the violator but also the community in which the violator is located. An exam- ple would be a case in which contamination is widespread and where a portion of the remedy is conducted off-site. EPA should consider the use of a neutral very early in the enforcement pro- cess in such cases in order to establish communication with inter- ested persons who are not parties to the action, but whose understanding and acceptance of the remedy will be important for the resolution of the case. The memorandum establishes procedures of approval for cases in which ADR is to be used, generally leaving the decision to the appropriate national or regional headquarters. At headquarters, the decision is to be made by the appropriate associate enforce- ment counsel (AEC). In the regions, the legal counsel will do the deciding in consultation with the appropriate regional program director. A liberal case selection procedure is provided for which allows anyone in EPA regional headquarters or the Department of Jus- tice who is involved in the development or management of an en- forcement action, or a PRP not as yet named as a defendant, to suggest a case or selected issue for ADR. The appropriate re- gional office must, however, consent and the memorandum pro- vides for sample case nomination communications. The selection of a case for ADR is to be accompanied with information that the government is prepared to proceed with vigorous litigation if a third party neutral fails to resolve the matter. In order to obtain non-binding ADR, including mediation mini- trials, non-binding arbitration, and other ADR mechanisms in- volving the use of a third party neutral as a non-binding decision- maker, the nominator must send the information to the appropri- ate AEC. The AEC will then consult with the appropriate head- quarters program division director. For binding ADR, including binding arbitration and fact finding, and other ADR mechanisms involving the use of third party neutrals as binding decision-mak- ers, the appropriate AEC must concur in the nomination of the case by the Region. The Department ofJustice must also concur on the use of binding ADR in referred cases. The region may not proceed with ADR without the concurrence of headquarters and 1989] 175 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 an effort should be made to obtain the concurrences within fifteen days. The memorandum establishes detailed procedures for the se- lection of third party neutral decision-makers and establishes their qualifications. The standards set for these third party neu- trals include demonstrated experience, independence, subject matter expertise, and the fact that the third party neutral will serve a single role-i.e., that he is not serving in any other capac- ity in the enforcement process. Analogous requirements are im- posed on corporations and other organizations seeking to act as third party neutrals. Agreements relating to ADR must be memorialized prior to ob- taining approval. Third party neutrals are to be paid by EPA headquarters. Unless otherwise discoverable, records and com- munications arising from ADR are to be confidential and may not be used in litigation or disclosed to the opposing party without permission. Rule 408 of the Federal Rules of Evidence, which renders offers of compromise or settlement, or statements made during settlement discussions inadmissable in subsequent litiga- tion between the parties, is made applicable to the ADR process. ADR is not going to have any impact on situations in which com- pliance with "timely and appropriate" criteria is called for, as in a case where there is already an administrative order or civil refer- ral. Therefore, ADR cannot be used to postpone compliance. The memorandum provides for set procedures in ADR cases. In a mini-trial for example, the role of the neutral referee is to act as an advisor to the decision-makers during the information ex- change. The neutral may offer opinions on points made, and of- fer assistance to the decision-makers in seeing the relative merits of their position. The neutral's second role can be to mediate the negotiation between the decision-makers should they reach an impasse or seek assistance in forming an agreement. Unless otherwise agreed by the parties, no evidence used in the mini-trial is admissible in litigation. The memorandum also provides procedures for non-binding fact-finding. This technique may be adopted voluntarily by the parties for a dispute or it may be imposed by a court. It is appro- priate for issues involving technical or factual disputes and its pri- mary purpose is to reduce or eliminate conflicts over factual issues in a case. The fact-finders role is to act as an independent investigator, within the scope of the authorities delegated by the 176 . Alternative Dispute Resolution parties. The findings may be used in reaching settlements, as "facts" by a judge or an administrative law judge in litigation, or may serve as binding determinations. If fact-finding is a part of the litigation process, a decision must be made whether to pro- ceed with litigation of the rest of the case or suspend litigation while awaiting the fact-finders report. ADR techniques in enforcement actions have been available only since August 6, 1987 and no reports on its success are as yet available. It is clear, however, that EPA has provided a thorough repertory of ADR techniques for use in the settlement of enforce- ment actions. The fact that EPA found it advisable or necessary to include and specify these remedies in a professional guidance document indicates the success of the movement to make ADR a significant part of the resolution of environmental problems, and of the execution of environmental policies. It should be noted that all of these ADR techniques are avail- able for the effective enforcement of federal environmental pro- tection law. The variety and flexibility of these techniques may raise questions in the minds of observers as to whether uniformity of enforcement is likely in light of the diversity of the techniques that may be employed.6 1 V. ADR IN LAND USE AND PUBLIC LANDS AND RESOURCE PROBLEMS "Disagreements between environmental interests and devel- opment interests typically revolve around the allocations of fixed resources, the hierarchy of public policy priorities and the setting and enforcement of environmental qualities."62 Another author commenting on ADR, has designated land use and natural resource management as being among the foremost subjects for which ADR has proven to be appropriate.63 It is evi- dent that land use disputes, whether of a site-specific or policy level nature, and whether involving public land and resources or the application of land use requirements to private holdings, fre- 61. For a favorable view of the use of ADR in environmental enforcement see Dinkins, Shall We Fight, Or Will We Finish: Environmental Dispute Resolution in a Litigious Society, 14 ENvL. L. REP. (Envtl. L. Inst.) 10398 (1984). When Dinkins wrote the article, she was deputy Attorney General of the United States, in charge of a great deal of the nation's environmental enforcement. 62. Susskind, Environmental Mediation and the Accountability Problem, 6 VT. L. REV. 1, 10 (1981). 63. Bingham and Haygood, supra note 1, at 9. 1989] 177 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 quently involve negotiations that utilize ADR techniques. It ap- pears that there have been successes in resolving coastal resource disputes through ADR. 6 4 In an account of successful ADR appli- cations, authors Susskind and McCreary refer to four coastal dis- pute cases involving alternative uses of tidelands in Massachusetts (in which Susskind was the mediator), the protection of wetlands in California, and the mediation of disputes between the fishing industry and the oil industry in Southern California. The fourth example involved the resolution of conflicts between develop- mental and conservation interests in the Columbia River estuary in Oregon. The authors attribute success in all of these cases to "face-to-face interaction among the key parties (and not the hired advocates) which produced agreements that all sides could endorse."65 In every one of the four cases, the dispute resolution process first isolated issues of mutual concern and identified overlapping interests. In some of the cases agreement could be reached after certain factual or scientific issues had been disposed of. In re- porting their experiences, the authors note a number of recurring issues. Through face-to-face negotiations, "win/lose situations often can be transformed into win-win outcomes"66 where no one loses. To arrive at consequential decisions, careful attention must be paid "to the processes of identifying interests, generating al- ternatives, spelling-out commitments, jointly evaluating the un- certainties and the scientific evidence available, and framing written agreements. Such processes often require the assistance of a nonpartisan facilitator or mediator."67 Informal agreements, the authors continue, must at some point be linked to the formal processes of government decision-making. Public officials cannot and should not be encouraged to give up statutory authority to an ADR process. In their view, power im- balances among the parties are often illusory. A nonpartisan facilitator, funds to support joint fact-finding, and the ability of any member of the group to walk out of the negotiations will pro- duce a balance of power during the negotiations, even though there may be differences in power outside the negotiation setting. 64. Susskind and McCreary, Techniques for Resolving Coastal Resource Management Disputes Through Negotiation, AM. PLAN. Ass'N J., Summer 1985, at 365. 65. Id. at 372. 66. Id. at 373. 67. Id. 178 Alternative Dispute Resolution The authors make the usual point that even when negotiations are not successful, the fact that the parties have had an opportu- nity to meet and understand each other's point of view will be helpful in the future. The authors, who are planners, favor plan- ners as negotiators and mediators in land use problems. Other very successful environmental mediations involve the settlement of the Grey Rocks Dam controversy which involved the construction of an electric generating plant in eastern Wyoming, which allegedly imposed a danger on the critical habitat of the whooping crane. Areas were adjusted and alternative locations were fixed. Both the dam and the whooping cranes were saved.68 In another article, Susskind recommends the use of ADR in sit- ing waste disposal facilities and other developments regarded as undesirable.69 To bolster this argument, the author compares key steps in the traditional siting process with a proposed ADR alternative in obtaining agreement on a site for a waste disposal plant. He says that the successful siting of a waste disposal facility would begin with joint fact-finding, and would apply inventive no- tions relating to the reduction and spreading of the risk of ad- verse consequences through insurance. It would also emphasize the future enforceability of mitigation efforts, and it would experi- ment with new forms of compensation or transfer payments for having a waste disposal facility in their "backyard". The ADR process should also explore the possibility of sharing the responsibility for the monitoring and managing of the new facility. Most communities, the author notes, are made up of "boosters," "preservationists," "guardians," and "nonpartici- pants." The boosters favor almost any development; the preservationists are likely to oppose most developments that will affect the environment or the character of the community. The target population for ADR are the "guardians who are middle-of- the-roaders able to go either way on any particular project de- pending on how open and fair the process of decision-making seems to them."70 The middle-of-the-roaders are clearly the key to dealing with local concerns. The "Decide-Announce-Defend" 68. Susskind and Weinstein, Towards a Theory of Environmental Dispute Resolution, 9 B. C. ENVrTL. AFF. L. REV. 311, 321-23 (1980). 69. Susskind, The Siting Puzzle-Balancing Environmental Gains and Losses, 5 ENvT. IMPACT AsSES. REV. 157-63 (1985). 70. Id. at 160. 1989] 179 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 procedure must be abandoned in favor of the working out of local concens.7 1 The successful application of ADR in other land use and public resource situations has been widely documented. In an account of the first ten years (1974-1984) of ADR applications, Bingham and Haygood refer to seventy site-specific and sixteen policy-level land use disputes, and to twenty-nine site-specific and four policy- level national resource management and public lands disputes re- solved with the assistance of a mediator. Some fifty-one success- ful uses of ADR-probably a list that reflects some instances included in the earlier count-were cited in a paper delivered by Bingham at the February 1984 ALI-ABA-ELI Smithsonian-spon- sored conference on environmental law.72 Susskind presents another well-documented list of "more than a dozen cases of environmental dispute resolution" mostly involv- ing "the allocation of fixed resources."73 Selecting those cases that are typical examples of mediation of environmental problems, the author described them as follows: The first is the Snoqualmie-Snohomish Dam dispute. This case involved two mediators from the Office of Environmental Mediation at the University of Washington in Seattle. In 1974, they were invited by the Governor of the State of Washington to help break a deadlock. Interest groups dedicated to block- ing construction of a dam managed to tie the project up in court. The mediators brought together a group of farmers, sportsmen, government agency representatives, developers, environmentalists, and other citizens to negotiate an agree- ment providing for flood and growth control in conjunction with the building of a dam on the Snohomish River. The second is the Brayton Point case. This case began when the Department of Energy (DOE) pressed the New England Power Company to burn coal instead of oil in its electric gener- ating plant in Somerset, Massachusetts. An independent medi- ator, David O'Conner, helped DOE, the power company, and other regulatory agencies and interested citizens reach an agreement concerning ways of ensuring that coal conversion would not aggravate air pollution in the area. The third is the Foothills case. This case concerns a dispute surrounding the proposed construction of a dam and reservoir on the South Platte River near Denver, Colorado. This case is 71. Id. at 163. 72. Bingham, Using Negotiation Effectively in Resolving Environmental Disputes, ALI-ABA STUDY MATERIALS 126, 138-44 (1984) (ALI-C 812). 73. Susskind, supra note 62, at 18. 180 Alternative Dispute Resolution especially interesting because it was mediated by a member of Congress. The Corps of Engineers, EPA, the Bureau of Land Management, the Denver Water Board, and numerous environ- mental action groups negotiated a very complicated agreement.7 4 The outcomes were described as follows: In all three cases, subsequent enforcement of the agreement reached was difficult. The Snoqualmie agreement was thwarted by the election of a new governor. The Brayton Point agree- ment had to be re-ratified through parallel regulatory and per- mitting procedures that could not be suspended in deference to informal mediation. The Foothills agreement was subse- quently challenged by environmental splinter groups which felt that their views were not adequately represented during the ne- gotiations. Moreover, portions of the Foothills agreement had to undergo subsequent court scrutiny since the parties-at-issue did not relinquish their legal rights when they agreed to partici- pate in mediation.7 5 In most, if not all, of the examples cited in the literature in which ADR was applied to land use and public resource problems, mediated negotiation was used. The process has been frequently described,'7 6 and the first step clearly identifies the par- ties or interests that should participate in the negotiation. It is essential that there is adequate representation of the different groups that have an interest in the outcome. A number of steps or tasks may then be usefully aided by the presence of a knowl- edgeable mediator. It is important that the participants know precisely why they are for or against the project-i.e., it is neces- sary that the participant have a clear sense of the questions and issues, and that they clearly define their factual assumptions and their scientific notions and beliefs. If groups differ in their belief as to the danger of a particular pollutant, for instance, their ac- ceptance of remedial measures may differ radically. To change attitudes and approaches may require changes in knowledge. Another step in the process is the development of choices or options, because only then can a trade-off solution be ap- proached. But limits must be set on the problem, both in terms of the description of the breadth and extent of the problem and in 74. Id. at 20. 75. Id. at 21. 76. E.g., Susskind and Weinstein, supra note 68, at 336-45; Bingham, supra note 1, at 133-36; See also Anderson, supra note 56, at 325-34. 1811989]1 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW (Vol. 14:157 terms of its time span. If a problem is defined too broadly, its resolution may be too demanding and difficult. Another step involves the development of agreement on costs and benefits. This may require considerable data gathering on short-term and long-term impacts, and may call for economic and other projections. Agreement may require a getting together on factual bases-i.e., an element of data mediation. There must also be an opportunity for barter or trade, and as- pects of cooperation for points or values surrendered must be ar- ticulated. In a sense, this involves forms of mitigation that are familiar in environmental law. An important step, it is agreed, is the knowledge of all of the parties that the agreement awarded will be implemented, and that they are aware of and accept the problem of implementation. It is also necessary that the agree- ment contain devices to bind the parties to the agreement, whether such terms are self-enforcing, or enforceable by legal action. In discussing the negotiation of environmental disputes, Bing- ham recommends that parties not bargain from positions. In- stead, he suggests, "(1) Separate the people from the problem. (2) Focus on interests not positions. (3) Generate a variety of op- tions before deciding what to do. (4) Use objective criteria."77 The role of the mediator is clearly crucial in the ADR process, and has received some significant comment.78 The precise role of the mediator may differ from case to case, particularly since the mediator does not have any clear authority or charter in environ- mental negotiation. The mediator clearly must maintain neutral- ity and must keep confidentiality between the parties. Ordinarily, the mediator carries a communication function, and may assist in reaching compromises. There is some disagreement whether a mediator should take a more active role in seeking the resolution of issues. In environmental mediation-unlike labor mediation- there are few articulated rules, though a mediator who operates under the auspices of a particular organization will be subject to that organization's code of ethics.79 77. Bingham, supra note 72, at 133. 78. Susskind & Weinstein, supra note 68, at 346-49. 79. Id. at 348-49. Susskind and Weinstein draw attention to the increasing number of groups involved in environmental ADR. Id., at n. 84, referring to some eight organiza- tions. Lists of organizations in the field are also available from the Conservation Founda- 182 Alternative Dispute Resolution VI. THE USES AND LIMITS OF ADR IN ENVIRONMENTAL CASES A. Recurring Problems and Questions As has been seen, ADR-and ADR-inspired approaches-are currently used in negotiated rule-making, in the negotiation of CERCLA and RCRA consent decrees, and, incipiently, in the ne- gotiation of civil enforcement sanctions. They are used with in- creasing frequency, it appears, in cases including land use and public land and resources issues. ADR covers a variety of techniques. In the environmental area, the technique primarily relied on has been the mediated negotia- tion where many difficult cases have been resolved, apparently to the satisfaction of most of the participants in the process. ADR does raise a number of recurring issues, however, which arise mostly from the fact that ADR is a private, rather than a public process. A public process such as a trial or a petition for review of an administrative determination, involves procedural safeguards to provide opportunities for intervention or review. The determi- nation of a case in the courts binds the public at large, unlike the agreement reached by ADR which is always subject to the ques- tion of whether all parties in interest were involved, participated and agreed. There are, indeed, instances where carefully tailored agreements fell apart on such grounds. The participation issue has other ramifications as well. In ne- gotiated rule-making there is considerable judicial unease on such questions as to whether a negotiated rule carries the same judicial deference to administrative interpretation of agency power as does an agency-made rule. The other side of the coin is whether a rule which an industry helped to formulate-and which the Nat- ural Resources Defense Council (NRDC) agreed to-is subject to challenge by industry or the NRDC on review. At the very least, a judge reviewing such a rule would seem to be under somewhat greater pressure to uphold the rule than otherwise.80 Both in the negotiated rule-making case and in the resolution of land use and public resource problems, there is a recurring problem arising from the fact that the function of the regular ad- ministrative agencies has been displaced. To be sure, in the ne- tion, Washington, D.C. Susskind has addressed the mediator's accountability issue in his article Environmental Mediation and the Accountability Problem, supra note 71, at 40-46. 80. See Wald, supra note 40, at 31-32. See also Edwards, Alternative Dispute Resolutions: Panacea or Anathema, 99 HARv. L. REV. 668 (1986). 1989] 183 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 14:157 gotiated rule-making case, EPA need not adopt the rule negotiated by, let us say, seven steel companies and three envi- ronmental groups; moreover, the Corps of Engineers and EPA need not accept and effectuate the wetland agreement worked out in a land use negotiation, but it does place the agreement at risk of intervention by non-participants. Moreover, an additional bur- den is imposed on public agencies, who must review the outcome of negotiated agreements to see whether unrepresented interests have been disregarded. The recurring emphasis in the ADR literature on substituting the litigation result of a "zero sum game," where one party gains as much as the other party loses, with a "win-win" trade-off is deceptive, because even if there is a trade-off, a party can only gain as much as another party gives up.8 1 To stay within the same simplistic vocabulary, there's no free lunch, and if everyone gains, it is likely that someone not involved in the trade will have to pay. In the environmental field, the loser may well be the public inter- est in protecting such concerns as the preservation of environ- mental resources for the future. ADR results in agreements that are usually legally enforceable. But it is not a process which contains the attributes of legal deci- sion-making. Aside from the hostility to lawyers and to the legal process which is apparent in the ADR literature (which with some justifications, blames lawyers for many of the problems) ADR does not operate like other "legal" remedies. No negotiated agreement is a precedent for any other situation in the future. Although there are more and more historical and anecdotal ac- counts of past successes in the resolution of problems through negotiation, none of it can serve as a precedent for the future. Every new situation has new parties with self-defined interests, and every situation has its own peculiar problems and actors. Although earlier exposure to other situations has surely sharp- ened the mediator's skills, it has not added to the knowledge of the field, in the sense of providing the mediator with principles of precedential value. While it is clear that the literature explains a number of procedures and ways of negotiating and includes in- sights into approaches that work or do not work, there is little indication whether in any given situation it was the soundness of the procedure or the personal qualities of the mediator (and of 81. Harter, supra note 25, at 48. 184 Alternative Dispute Resolution other participants) that were responsible for the success of the effort. ADR is a growing field with increasing numbers of practition- ers, many with the sponsorship of a variety of new organizations with a sound devotion to participatory decision-making. The question whether to rely on ADR or on traditional modes of liti- gation will increasingly need to be faced by environmentalists and environmental lawyers. B. ADR or Litigation Whether to litigate or to become involved in ADR is not a diffi- cult question-as with other procedural alternatives, the choice depends on what will achieve the desired result. In such situa- tions as the negotiation of a consent decree, negotiation is the inescapable choice. In the case of a land use or public resource problem, the lawyer and the client face the traditional question of how best to achieve a result at the least cost. ADR provides inter- esting alternatives in situations where, although there is a good chance of victory, there may be questions of public relations, or of continued coexistence with a potential adversary. For instance, when one of the parties is a public utility, or a business depending on large numbers of customers, it may find ADR better than the litigation it can win because the litigation will engender adverse publicity. Although ADR proponents assert that negotiation is more cost- effective than litigation, it is not clear that the direct costs in terms of time or money spent on ADR provides a significant saving over litigation costs. When scientific issues are involved, for instance, expert help will need to be secured in either case. Based on the description of the ADR negotiating process, it is likely that good litigators may not be fully equipped to participate in certain ADR settlement efforts. 1989] 185