The partnerships that have caught the eye of Sabel, Fung, and Karkkainen do not just involve technical practitioners and citizens; they are collaborations among a wide range of stakeholders who realize that well-managed, face-to-face problem-solving sessions can help them advance their self-interest. While we can debate just how much of a democratic reform these activities represent, they certainly have produced impressive environmental results.1 Indeed, the "improbable reorientation" that the authors have discovered has been going on for quite some time under the broader banner of the environmental dispute resolution movement. There are literally hundreds of instances in which large numbers of people representing a wide range of contending groups havewith the help of trained mediatorsworked out voluntary agreements, including performance standards to which all parties (including the public agencies) have agreed to be bound. In fact, there are even federal and state laws encouraging (and circumscribing) such consensus building efforts as well as university programs that offer all relevant groups the knowledge and skills needed to participate in these negotiations.
Because Sabel, Fung, and Karkkainen are not attentive to the full range of relevant experience, they focus on questions that practitioners in environmental dispute resolution have already resolved, and dont get to the next set of questions on which we need their help. In particular, they are musing about three things that have, for better or worse, been resolved: the relationship between the power that seemingly devolves to ad hoc assemblies in this new form of regulatory dialogue, and the formal decision-making authority that has always been in the hands of regulatory agencies; the role of experts versus the role of less engaged citizens who are not formally included in discussions; and, finally, the potential split among environmental activists into those who "prefer the inside game of pluralist grappling for influence at power centers" and those who are "reorganizing to take advantage of the local participatory possibilities of the emergent regime." I will summarize how these issues have been resolved and spell out the next set of questions that require attention.
Some Settled Questions
1. Power and Authority. When a legislative body enacts a law (and an administrative agency adopts rules to implement that law), the agencies involved cannot turn over to an ad hoc assembly the authority to set performance standards or other terms of enforcement on a case-by-case basis. What they can do, though, is ask an appropriately selected set of stakeholders to generate a proposal (i.e., a set of consensus recommendations) that is not inconsistent with the intent of the relevant law and regulations. While the agency retains the power to ignore the groups advice, there is usually no reason for them to do soespecially if agency staff have participated at every stage of the consensus building effort. Ad hoc consultations must take place "in the open," as required by open meeting or other sunshine laws. The product of most such collaborative partnerships are recommendations that still require the relevant agency to act. What is most interesting is that many of the negotiated outcomes of these ad hoc processes require members of the regulated community to accept constraints or to make voluntary commitments that exceed what the regulators could otherwise impose. They are accepted in exchange for flexibility in how and when certain regulatory requirements must be met.
2. Experts and Expertise. Most environmental dispute resolution efforts begin with a period of joint fact-finding. That is, all the stakeholders (including the regulators) agree on the selection of a set of experts to advise them collectively. Whatever knowledge and skills the experts have to offer are shared simultaneously with all the parties. A neutral facilitator acts as interlocutormaking sure that even the least technically skilled participant is clear about what the experts have to say and how they went about gathering information, making forecasts, and preparing analyses of various kinds. Thus, the technical resources operate in support of the collaborative effortavoiding the "battle of the printout" and the "dueling experts" so typical of legal confrontations.2
3. A Schism in the Environmental Community. Some advocacy groups have refused to participate in certain efforts to mediate environmental disputes, relying on media campaigns, direct action, and legal challenges to pursue their interests. Others have been willing to "come to the table" and have been remarkably successful at getting their way. Some advocacy groups have agreed to negotiate on some issues while refusing to do so on others. The same, I might add, is true of regulatory agencies. In some regions of the country, the Environmental Protection Agency has taken the lead in suggesting mediation, in other regions there have been few such efforts.
Whatever their reasons, the leaders reserve the right to decide whether or not to participate in particular consensus building efforts. If a key player refuses to participate, then dispute resolution cannot go forward. As it turns out, though, there are usually more than enough disputants willing to negotiate. Since the product of these efforts is, again, only a proposal, and all such negotiations are transparent, groups that choose to stay on the sidelines retain an opportunity to make their views known at the end. Indeed, from a legal perspective, even those who choose to participate in an ad hoc effort to achieve a tailored settlement reserve their right to challenge the outcome in court if they feel they were deceived or that some constitutional questions remain unanswered.
The Questions That Remain
After more than twenty years of experimentation and hundreds of documented successes, several important questions remain about environmental dispute resolution: Do mediated solutions have precedential value? Should the practice of environmental mediation be regulated? Does fairness require that hard-to-represent interests (like future generations) be represented by proxies?
1. Precedential Value. The point of case-by-case problem-solving is to permit stakeholders to work out the most effective way of meeting the performance requirements contained in laws and regulations, and to stop mandating the choice of technology and other methodological details. It would follow, therefore, that differently tailored solutions might well emerge in roughly similar situations.
Our system of law and regulation presumes, however, that similar situations ought to be handled in the same way to ensure fairness. Whether procedural guarantees (like the right to participate in any mediated negotiation in which you are a stakeholder) will be sufficient to assure fair treatment, remains to be seen. At present, mediated results are not recorded in the way legal decisions are. They cant be cited with the same effect in subsequent, similar, situations. Does fairness require that the results of environmental mediation ought to have precedential value?
2. Regulating the Mediators? There is a growing pool of experienced environmental mediators in the United States. Various states and federal agencies maintain rosters of such professionals. But there is no certification by any central body. Mediators have very different levels of scientific background and mediation experience. Some are lawyers while others are not. One unanswered question is whether there is a minimum level of competence that should be required of anyone who proposes to mediate an environmental dispute.
3. Representation. There are almost always hard-to-represent or diffuse constituencies who are not formally represented in an environmental dispute resolution effort. One view is that representative democracy is not perfect, either, and that ad hoc efforts to resolve environmental disputes should not be held to a higher standard of "representativeness" than typical legislative or administrative procedures. The contrary view is that a system for selecting proxy representatives would not be hard to generate and would add to the democratic appeal of the new environmental regime.
Consensus building in environmental
regulation requires (1) convening the appropriate parties; (2) clarifying roles
and responsibilities appropriate to the situation; (3) deliberating in a transparent
and effective way; (4) reaching and testing the scope of agreement; and (5)
binding the parties to their commitments.3
As Sabel, Fung, and Karkkainen suggest,
when this is done right, "disciplined consideration of alternative policies
leads protagonists to discover unanticipated solutions provisionally acceptable
to all." This is true and important, but it is not news. The hard questions