Federal Agencies Directed to Use Conflict Resolution to Resolve Environmental Issues

Federal agencies have been directed yet again to use Alternative Dispute Resolution (ADR) techniques to resolve disputes.  This time the Acting Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality have directed relevant departments and agencies to

“increase the appropriate and effective use of third-party assisted environmental collaboration as well as environmental conflict resolution to resolve problems and conflicts that arise in the context of environmental, public lands, or natural resources issues, including matters related to energy, transportation, and water and land management. See Memorandum on Environmental Conflict Resolution 

This is not the first time the White House has encouraged federal agencies to use ADR techniques. For example, in 1998 President Clinton ordered agencies and departments to take steps to promote greater use of ADR techniques to resolve disputes and to negotiate regulations. See Memorandum for Heads of Executive Departments and Agencies

The latest memorandum requires that agencies use ADR techniques when appropriate to develop regulations and policy, resolve land management disputes and resolve enforcement issues related to water and land management, energy and transportation issues.

The memo applies to the executive branch agencies’ enabling legislation, the National Environmental Policy Act (NEPA) and other laws aimed at managing and conserving the environment, natural resources and public lands.  The complete memo is here.

Information about some of the relevant federal environmental ADR resources can be found at the Department of Justice website the EPA Conflict Prevention and Resolution Center website and the Department of Interior Office of Collaborative Action and Dispute Resolution website.

EPA Develops a Wireless Tool to Get Water Quality Data

EPA’s Water Data Project has recently unveiled a new tool to easily access data collected pursuant to the Clean Water Act about water quality in most lakes, rivers and streams anywhere in the US.

The EPA Environment Justice in Action blog has a posting about the new tool How's My Waterway? 

While the database has been around a while, the new tool enables everyone to quickly and easily access the data to see the condition of their local waters in plain language.

To use the tool, go to How's My Waterway? and enter your location or allow the system to determine your location. I found that the Use My Location button took too long to load on my office computer, so I clicked on Choose a Location button and was taken to a page where I entered my zip code.

The only confusing part about the tool is that the button to actually take you to the database to see the list and maps of waterways is not nearly as prominent as the three ancillary buttons (About How’s My Waterway, Related Links and Help). 

To actually see the reports generated from the database you click on a little arrow that is not highlighted.  EPA should fix this small design problem to make clicking to the database as prominent as the other, less important buttons.  But this is a small issue. 

The reports generated from the data in map or list format load quickly. The list of waterways – at least based on a check of my neighborhood – seems complete.

This tool empowers anyone to wirelessly check on local waters anywhere in the nation quickly and easily. Think about using your smart phone and during a hike checking on the water quality of a lake or stream from the water’s edge.

This is what e-government should be all about.

Why Lawyers Have Bad Reputations

From the New York Post: Dad sues own kid in matter of ‘trust’ .

Why is it that some lawyers seem to think the courts are designed to solve every problem? Do they think suing someone – even their own children – will intimidate? Dominate? Scare? Resolve the problem?

Whatever, here is yet another story about an attorney with more bluster than brains.

As the Post put it, “This’ll make for an awkward Thanksgiving. A high-powered Manhattan lawyer has filed a $3 million libel suit — against his daughter.” 

 The daughter had the temerity to ask for an accounting of her trust fund, managed by the father. 

The merits of this case do not really matter.  Just think about this family Thanksgiving  and be grateful about your own.

According to the Post, the attorney, “who once sued a restaurant for $7 million in a dispute over a $354 tip, said he might be willing to relent” and that the family matter will be resolved. But then why did he file suit in the first place?

California Confidentiality Statute Allows Clients to be Defrauded if Done During Mediation

Does this heading get your attention?  Because it is true, even if the statute allowing this was not designed to produce this outcome.

The strict California mediation confidentiality statute allows this outcome, according to the California Court of Appeals, the second such decision upholding the absolute ban on disclosure of any information if it originated in mediation. 

In two cases with egregious facts the California courts have held that the mediation confidentiality statute means what it states – that no evidence of any statement, act or writing prepared for a mediation is admissible in any subsequent court proceeding. Period. End of story.

I’ve blogged about this before, reporting on a decision by the California Supreme Court in Cassel v.Superior Court,  in which the Court held that private communications between an attorney and client that take place during mediation are confidential – even when the client waives the attorney-client privilege and requests disclosure.

The most recent case is Hadley et al. v. The Cochran Firm Cal. Court of Appeal, 2nd Appellate Dist., 8th Div., 2012  in which the California Court of Appeals held that the statute applied even when an attorney stapled an executed signature page from a confidentiality agreement to a supposed settlement agreement to which the clients had not agreed, thereby settling the case and dismissing their claims without the clients’ authority or knowledge.  Wow, talk about alleged malpractice and fraud.

The trial court dismissed the claims in response to a motion in limine to exclude the evidence of the alleged fraud and malpractice because this all happened during a mediation. The court was apparently following precedent from the Cassel decision by the California Supreme Court and a reading of the plain language of the statute.  The appellate court upheld the decision, holding that the mediation confidentiality statute compelled such a result.

This is no way to encourage mediation or engender client confidence in the mediation process.  These decisions clearly show the dangers of unintended consequences. When the mediation community drafted and supported a statute with an absolute bar, and opposed the Uniform Mediation Act, which takes a far more nuanced approach, I am certain there was no thought given to results such as this.

Delaware Chancery Arbitration Scheme Declared Unconstitutional

I’ve taken a bit of a vacation from blogging. I’m back now. This blog is about the Delaware Chancery Court statute authorizing the Chancery court judges to sit as arbitrators. Authorizing sitting judges to serve as arbitrators and issue private decisions. Remarkable.

This was a statute so off the wall that I blogged aboutit last November

.

The system was designed to allow large corporate litigants to use the Delaware Chancery court system to litigate in secret – cases were not even docketed – and still get a decision by a judge from the Chancery court.  And to allow the judges to receive large fees as arbitrators. 

As I wrote then, the Delaware Coalition for Open Government saw the statute as unconstitutional and sued the five Chancery judges in Federal District Court challenging the scheme. The complaint argued that the statute unconstitutionally violates the First Amendment’s qualified right of access to civil and criminal trials. 

Thankfully, U.S. District Court Judge Mary McLaughlin agreed that this scheme is unconstitutional, and held on the pleadings that:

Under the Delaware law and Chancery Court rules, a sitting judge of the Chancery Court, acting pursuant to state authority, hears evidence, finds facts, and issues an enforceable order dictating the obligations of the parties. The Court concludes that the Delaware proceeding functions essentially as a non-jury trial before a Chancery Court judge. Because it is a civil trial, there is a qualified right of access and this proceeding must be open to the public. (DELAWARE COALITION FOR OPEN GOVERNMENT v. HONORABLE LEO E. STRINE, JR., et al.CA No. 1-11-1015)

While it is likely that this case will be appealed, what do you think the odds are that the Third Circuit will reverse the decision? 

Use and Benefits of Alternative Dispute Resolution

A Statistical Summary Prepared by the Department of Justice

If anyone needs statistical evidence that ADR saves money and reduces litigation, here it is. Last year the government saved over $12 million in litigation and discovery expenses, over 14,600 days of attorney time, and avoided over 1,200 months of litigation by the use of alternative dispute resolution (ADR) techniques, according to the U.S. Department of Justice. These savings were achieved primarily through the use of mediation at a cost of under $2 million. Six dollars saved for every one dollar spent is pretty good cost/benefit ratio, if you ask me.

This data is being reported by the U.S. Department of Justice Office of Dispute Resolution (ODR). The ODR was set up to develop Justice Department policy regarding the use of ADR.

These are just the government’s cost savings and, according to the ODR, are “based on detailed case reports submitted by the lead trial counsel in all cases in which a private neutral conducted an ADR process in Department litigation across the country.”

Also note that in 2011 nearly 75% of the voluntary ADR proceedings (cases in which the government and other parties agreed to ADR without being ordered by a court) were “resolved” (i.e., settled). About 50% of cases ordered into ADR, by contrast, were resolved – still a significant percentage but perhaps an indication of why voluntary ADR works so well.

This chart is pretty strong evidence of the cost-saving benefits of ADR.

Category	TOTALS
	2011	2010	2009	2008	2007
Success Rates for ADR
Voluntary ADR Proceedings	73% Resolved	80% Resolved	78% Resolved	79% Resolved	69% Resolved
Court-Ordered Proceedings	53% Resolved	46% Resolved	42% Resolved	51% Resolved	50% Resolved
Cases in Which ADR Achieved Benefits	86%	73%	83%	No Data	No Data
Quantified Benefits of ADR
Litigation or Discovery Expenses Saved	$12,185,750	$11,662,500	$5,940,287	$3,387,750	$3,001,000
Days of Attorney/Staff Time Saved	14,656 Days	12,260 Days	5,829 Days	23,010 Days	2,797 Days
Months of Litigation Avoided	1,231 Months	930 Months	849 Months	661 Months	429 Months
DOJ Support ADR
Expenditures for Mediation Services	$1,931,900	$1,547,874	$1,141,103	$1,362,320	$1,049,891
Number of Case Authorized for ADR Funding	470	718	528	522	505

Source: U.S. Department of Justice, Office of Dispute Resolution

U.S. Supreme Court Justices Skeptical of EPA in Sackett v. EPA

I recently blogged about a case before the Supreme Court testing whether parties can seek pre-enforcement judicial review of EPA orders (ACOs) without being subject to fines of up to $70,000 per day for failure to comply with the order.

My earlier blog described the essential details of the case, in which, to recap briefly, the EPA ACO prohibited the Sacketts, owners of a property near a lake, from filling in a portion of the property because EPA claimed it was a wetland.

Supreme Court commentators seem to agree that the oral arguments do not bode well for the government. Lyle Denniston wrote in SCOTUSblog, “With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.”

The Legal Planet blog stated: “What distinguishes this case from a routine examination of dry administrative law concepts is the overt hostility towards EPA and its regulatory efforts that many of the Justices displayed in their questions from the bench.”

Here is an example of from the transcript of the oral argument:

Justice Breyer: If we agree then, look, for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen. So tell me why I am wrong on those two points. (A copy of the argument transcript can be found here)

The interesting question is likely to be how the Sacketts win, not whether, and the reasoning and basis for the decision is the important issue, not who wins and who loses.

Will the opinion be a narrow ruling, limited to enforcement of the Clean Water Act? Will it include other federal environmental statutes enforced by EPA by Administrative Orders?

And, most significantly, will the Court base its decision on constitutional grounds, as suggested in several friends of the Court briefs, and hold that the lack of judicial review of ACOs is an unconstitutional deprivation of due process?