Alternative Dispute Resolution: An Effective Mechanism for Settlement of Climate Change Disputes- II

Shivangi Tiwari[1] and Nishtha Pandey[2]


Case study

Malibu Lagoon Task Force [3]


In March 2000, business interests, resource agencies, conservation groups, and property owners initiated a programme to look after the health of the environmental lagoon. This initiative was taken up to address the improvement in native plants and animal species, protection of human health, and restoration of the function of the wetlands.


The mediator worked with the participants and created a holistic membership list that had all the potential stakeholders. The members were grouped into 4 subcommittees and were assigned to review two of the eight chapters of the report by UNEP. They were asked to develop criteria for selecting a strategy, to rank each strategy, and further to reduce it to three from fifteen. The first attempt by the group led to commotion amongst them, the mediator then suggested that rather than fighting over the list, the group should agree upon a set of recommendations that included short-term and long-term high priority recommendations for wetland restoration projects and short-term and long-term priority projects for wetland treatment projects.


The final historic recommendations report that was forwarded to the state and federal agencies represented a compromise on the issue that was a hindrance in the peaceful resolution of the problem, which is the timing and scope of work. The ground of consensus was the group agreeing to the fact that starting small and learning from the experiences in each step was always better than fighting over who would pay for the ultimate solution.


Application of ADR in climate related disputes


Environmental problems are the most widespread and equally challenging for the present as well as future generations. These problems revolve around important aspects of every sphere, ranging from science, sociology, economics, history and culture, property rights, and legal or regulatory constraints, and its effect could be seen on private individuals, the general public, multiple regulatory jurisdictions, and special interests. These problems are even more dangerous as they require an assessment based on unknown consequences. Moreover, when these disputes have impact on the common public they may become emotionally charged and push stakeholders toward rigid postures making it more difficult to negotiate.


However, it is important to note that regulatory regimes and legal actions are only marginally effective as they cannot holistically solve the problem at hand. In this situation, ADR methods could exhaustively examine the challenge posed by the ubiquitous environmental problem.

There is an increasing need to handle the environmental problems through the joint efforts of all the stakeholders so that the difficulty of ignorance and omission can be eliminated. Otherwise, a uniform approach would be unproductive with regard to the local needs. Hence the need of the hour is to devise a gradual mechanism that is applicable to all mediation processes and enables the mediators to effectively carry out the process. The process is the make-or-break segment of the entire resolution mechanism. If the process that is undertaken is efficient enough, it could result in achievable goals and better environmental outcomes and durable agreements.


Examples of ADR successes


ADR is increasingly applied to resolve environmental disputes. These are some examples to illustrate the diversity of processes, differences in the structure, and variety of products that are the outcome of ADR application to environmental disputes in various fields like of transportation, hydroelectric dams, and toxic waste sites.


Washington State was facing several challenges associated with the permitting, design, and construction of major transportation projects. These included conflicting rules, delays in the permit processes, questionable environmental outcomes, and frustration by tribes that their cultural artefacts and environmental concerns were not being considered. Consequently, TPEAC process to resolve a number of disputes regarding the permitting of transportation projects in Washington was established by the legislature. The process aimed to streamline permits and achieve better environmental results on transportation projects. Consultants were hired to help develop the structure and processes. The committee initiated six technical subcommittees, with broad stakeholder representation, to work on different aspects of the problem.[4]


The subcommittees were co-chaired by at least two members of the committee, which had different perspectives on the problems being addressed. Outside consultants acted as facilitators to get the process up. Subcommittees were modified over to meet new challenges. All resolutions by the subcommittee were unanimously adopted. The committee and the participating agencies adopted numerous products as standard practices.


All participants acknowledged the establishment of trust relationships among the participants. After four and a half years a decision was made to ask the members of TPEAC to assume the new products and processes as part of their standard operating procedures and not to seek extra funding in the next budget cycle. The Washington State Office of Regulatory Assistance has adopted these products and processes as a model for all of state government.


In California, the Dispute Resolution Service of the Federal Energy Regulatory Commission (FERC) and the FERC Office of Litigation initiated a mediated process to re-license several hydroelectric facilities. The issue was the balancing of ecological populations, hydro-power production, and municipal and agricultural uses for the water resources. The other issues included water rights for water districts, 100-year-old water rights applicants, a recent energy crisis, lack of reliable historical data, and a drought.


Numerous administrative and legal challenges to the process were the product of past re-licensing processes. The settlement was reached using ADR after addressing the concerns. This permitted the licensee to file their pre convened terms and conditions of the project without any dissent and disapproval.


In the GE-Pittsfield case in Western Massachusetts, PCB contamination that caused high levels of public concern was involved. ADR was used to address four major areas. Which are as follows:

  1. The liability responsibility of GE for clean-up;

  2. The community’s input on impacts of the clean-up process;

  3. The establishment of a panel of neutral experts to make recommendations for remediation in the near future;

  4. Finally, the agreement to use ADR in order to resolve any dispute that may arise during the implementation of the remediation plan. (EPA website, unknown)

Stakeholders were neighbors, business entities, environmental groups, and regulatory agencies. It is important to note that the settlement agreement had strategies for adaptive management. This process necessitated extensive public outreach and community meetings to address all of the interests in the area. (EPA website, unknown)


Concerns relating to ADR


The use of ADR methods to resolve complex environmental issues includes a number of difficulties that need to be addressed. The question which is frequently asked is who is included and who is excluded in the process. The relevance of this question is substantially increased due to the notion that dispute resolution is an alternative to the traditional environmental decision-making processes which require significant public participation. As a general rule of thumb, stakeholders should be defined as broadly as possible. If the agreements and solutions devised are going to receive broad political and public acceptance, it becomes crucial. A group of stakeholders which is too narrow may simply lead to future disputes that will require all parties to return to the negotiating table or face litigation.[5]


Processes involving public entities are to be open for the various interest groups which form a major part of the process; these groups must be given opportunities so that their views are considered even if they do not wish to be a regular participant. Moreover, the leeway to add more stakeholders should also be opened at all times during the process so that the interest which was not considered could be accommodated even at the later stages.


Cost is one the major consideration, as although in limited issues, mediation is less expensive than litigation, however, it is not the case with environmental disputes as they involve multiple issues from a wide range of problems, so monetary consideration plays a huge role. Moreover, a lot of time is consumed while researching a particular topic. Hence many times the final agreement is reached on the consensus arrived at by the scientists and the concerned parties.


The inclusion of the entire stakeholder is one of the important aspects of ADR (thomas-larner 2004). BATANA needs to be discussed with all the concerned parties, if even one of the parties is hesitant or does not participate with good faith in the process, it is better to postpone or terminate the process. The effectiveness and durability of any agreements are determined by the critical stakeholder involvement and therefore it should be a matter of early discussion.


One of the strategies that could be used is to meet the reluctant parties and explain the ADR process to them, as in many cases their hesitation is the result of their ignorance about the ADR methods. Another strategy that could be applied, is to meet any representative of the reluctant parties, this also opens the avenue of another set of stakeholders and makes the resolution process even more inclusive. At last, it is up to the “willing party” to decide as to whether progress could be made with the available participants.


Conclusion


A host of events stretching from storms of historical segments to mundane events that influence a meagre number of people may give rise to Weather and climate disputes. Ensuing legal disputes vary all over the map. Looking upon some of the various reasons why mediation and arbitration are effective, it can be inferred that many such disputes are uniquely befitted to mediation and arbitration.


The Paris Climate Agreement proved to be a milestone for Climate change, as it was for the first time the international community came forth to combat climate change and disputes ensuing thereof. Arbitration could be a boon to resolve disputes revolving around climate change. However, one of the major drawbacks of the Paris Climate Agreement is its inability to cater to the needs of the countries which are not a party to it. To address this shortcoming, many nations have put forward a proposal relating to the same before the International Environment Court, which would hopefully prove itself to be beneficial in such matters.


The resolution of disputes relating to climate change by using ADR is growing rapidly, the reason for the same could be attributed to the fact that it helps to deal with the critical legal claims having a wide impact, which is not the case in conventional litigation. This is because climate change disputes could not be framed under a given set of regulations as they are very wide and complex. One of the benefits of ADR is that the parties could be asked to chip in their views and opinions and a middle path could be assessed for its acceptability and amenability to a large group of population. Moreover, ADR methods are also making their way to the legislation in several countries. However, it must be noted that ADR is not effective in every legal case, especially where the problem is very complex. Hence, mandates from the legal bodies and courts to resolve cases using ADR are still necessary. Application of administrative ADR helps in finding out the potential environmental threats and conflicts at an initial stage, when they are relatively easier to resolve, which indeed has a positive impact on the dispute resolution methods. It is overwhelming to note that the principles applied in Environmental ADR are in sync with the international environmental principles.

[1] The author is a third-year law student at Hidayatullah National Law University and can be reached at shivangi.1995@hnlu.ac.in [2] The author is a third-year law student at Dr.Ram Manohar Lohiya National Law University and can be reached at nishthapandey3103@gmail.com [3] Alana Knaster, ‘Resolving Conflicts Over Climate Change Solutions: Making the Case for Mediation’ (2010) <https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1016&context=drlj> accessed 29 March 2021. [4] Dan Swecker, 'Applying Alternative Dispute Resolution to Environmental Problems' (Mediate India - Everything Mediation, 5 July 2006) <https://www.mediate.com/articles/sweckerD1.cfm?nl=108> accessed 22 April 2021. [5] ibid

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