Federal Agencies Told to Use ADR Techniques to Resolve Environmental Issues

Federal agencies have yet again been directed 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.

Of course this is not the first time the White House has encouraged the use of ADR techniques in the federal government. 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 Department and Agencies

The memo sets out the use of ADR techniques to address environmental matters and directs federal agencies to use neutral facilitation to settle conflicts in issues related to energy, transportation and water and land management issues.

The memo applies to all executive branch agencies with regard to each agency’s 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 other relevant federal environmental ADR resources can be found at the Department of Justice web site the Department of Interior Office of Collaborative Action and Dispute Resolution web site and the EPA Conflict Prevention and Resolution Center site.

Coal King No Longer: Is Natural Gas the Long Term Solution?

This has not a good year for coal in the United States. Fifty-five coal-burning power plants haveshut down this year alone  including the Big Sandy power plant in Louisa, Kentucky

The significance of the Big Sandy plant is that it is located right in the heart of coal country; near the Appalachian Mountains, an area that has relied on coal, not only for energy, but as an economic driver for decades.

EPA regulations have forced coal companies to decide whether to pay for expensive retrofitting to their existing coal-burning electric power plants or to shut the burners down permanently. The American Electric Power company has decided to shut down both coal furnaces of Big Sandy, keeping open the possibility of retrofitting one at a later date to burn natural gas.

For most environmentally-concerned individuals this would seem like a major win. Burning coal not only emits a great deal of carbon dioxide but also other harmful pollutants like particulate matter and sulfur dioxide. Plus mining coal often involves significant environmental and human costs.

The fact that a coal plant would shut down in an area where coal is plentiful is an example of how social changes, concerns about global warming and EPA regulations are changing the energy industry. But this begs the question: what happens next?

Relying less on coal for energy means that burden going to be placed on other sources of energy. At the present one of the main sources of electrical energy is natural gas; while not renewable or devoid of emissions, it is a much cleaner option than coal. But there are ramifications to this shift to natural gas, making the environmental costs of hydraulic fracturing (fracking) an even greater concern.

If natural gas becomes relied on for more electrical energy production, natural gas companies have to find a safer way of removing it from the earth for it to be a sustainable source of energy.

The options other than natural gas to coal are clean, renewable sources of energy like wind. A decline in coal use presents a good opportunity for renewable energy, but companies still need financial and government support for these clean, renewable sources. And a much better electrical distribution system infrastructure, particularly to move electricity generated from wind and solar to customers.

Although increased use of natural gas over coal may be an encouraging trend and a step towards reducing our carbon emissions in the short term, it is pertinent to keep in mind one of the significant costs of increased use of natural gas - increased fracking - and the effects fracking will have on the environment.

Assisted by Michael Ciccarone

DOHA 2012 Climate Change Conference

The United Nations Framework Convention on Climate Change (UNFCCC) created the Conference of the Parties (COP) in order to get developed and non-developed nations to produce a plan to lower greenhouse gas (GHG) emissions and help prevent global climate change.

Despite recent events like Hurricane Sandy, Doha 2012 COP 18 saw little progress towards a lasting agreement of significant limits on GHG emissions.

No major progress has been made with regard to any of the issues. One of the focal points of this year’s conference has been extending the Kyoto Protocol commitments, which are set to expire at the end of this year. Doha 2012 punted by simply extending Kyoto. The real issue with Kyoto though is how to track and enforce the commitment of different countries. And how to find an equitable solution that will satisfy all stakeholders.

While extending Kyoto is a necessary action, it certainly does not solve our global warming problems. For one, the Kyoto only applied to developed nations, so China, Brazil and India were not a part of any emission reduction agreements. With these nations rapidly industrializing, it is crucial to involve them in some kind of GHG emissions reduction pact. One way is for developed countries to lead with ambitious reduction goals, with the United States participating; something that has not happened up to this point.

Arab countries’ involvement is also critical and many hoped that holding COP 18 in Qatar would help encourage Arab nations to become more involved in climate negotiations. Unfortunately, few Arab nations seem interested. With many of these countries sitting on vast oil reserves with significant solar potential, they have failed to set any targets for solar energy use.

In a recent interview, the U.N. Secretary General said that developed nations should assume most of the responsibility in fighting climate change as historically developed nations have caused the most damage.  While many would not disagree with this assertion, it does not bring the parties closer to an agreement. 

Obviously developed nations are most responsible for our current dilemma. However, developing nations like China, Brazil and India are rapidly industrializing and are now will certainly in the future be a major source of GHG emissions and contribute significantly to global warming. The solution has to involve everyone.  

Assisted by Michael Ciccarone

Wayne State Law School Environmental Law Clinic Director Gaining Recognition

Nick Schroeck is executive director of the Great Lakes Environmental Law Center and teaches at the Wayne State University Law School Environmental Law Clinic.  A 2007 graduate of Wayne State University law school, Nick is receiving recognition for his many accomplishments in environmental law.  Good for Nick and good for Wayne State Law School, my alma mater.

Nick has worked on a wide range of environmental issues and often appears in the media to help educate the public about environmental issues.  He has been involved in many of the recent environmental law issues in the Great Lakes area.

Nick often appears in the media speaking about high profile issues such as how to keep Asian carp out of the Great Lakes and hydraulic fracturing.  Good to see Wayne State Law School taking a leadership role in the public discourse about the environment. 

The NHL Negotiations: Clients Move the Puck Toward a Settlement

The NHL players and owners finally appear to be making progress towards a collective bargaining agreement. Although no formal agreement, public reports indicate that the two sides are having meaningful and productive discussions around many of the critical issues. You might be surprised, though, that this was not thanks to Gary Bettman or Donald Fehr, the lead negotiators for management and the union respectively.

The latest set of meetings was held between six owners and eighteen players – that is between the actual clients and the real parties-in-interest. This, in an effort to build trust and find common ground and perhaps to demonstrate that the players were united. This could be the necessary breakthrough and has appeared to help the parties build some common understandings and develop some of the trust necessary to settle the dispute.

Trust, here as in other negotiated settlement, is the sine qua non of settlement. If the two sides do not trust each other, getting a deal done is going to be very difficult. Meeting without Fehr and Bettman may have given each side enough of an unfiltered understanding of the other side’s needs and interests; enough, in other words, for each party to sense that it understood the other party’s true interests and where that party could – and could not – move. This understanding can give each party a sense of control over the process and remove the public gesturing and posturing from the equation.

There is no agreement yet, but the talks are ongoing; which is half the battle. Hopefully, the ongoing talks and the development of trust will result in a settlement.

At this point, a settlement, almost at any settlement, will benefit the stakeholders, especially those stakeholders not at the table and avoid the train wreck of the loss of an entire season.

The National Hockey League Negotiations: Will Mediation Make a Difference?

As the NHL lockout reaches its 10^th week, it is hard from the outside to see any progress. Both the All-Star game and the Winter Classic have been cancelled and the two sides seem just as far apart as they were three months ago.

But one recent development which should delight hockey fans and ADR professionals alike is that the owners and players have finally agreed to mediation. Both sides have agreed that ongoing negotiations will be conducted under the auspices of mediators from the Federal Mediation and Conciliation Service. 

Although this may not seem like a huge development it is a step in the right direction. The owners and players union have been negotiating for months to no avail. There is hope that with the assistance of the mediator they may begin to make some progress.

Some collective bargaining disputes are very contentious; both parties play “hardball” to get the best deal for their side. They often, as here, resort to lockouts or strikes. Both tactics are designed to put economic pressure on the other party. The problem is that such tactics force the parties into ‘win-lose’ scenarios in part because the high cost of applying economic pressure compels parties to justify the costs of the pressure to their own stakeholders by ‘winning.’

This results in both sides finding it difficult to properly assess the short- and longer-term costs associated with their hardball tactics. To justify the costs and defend their actions to their own stakeholders, the owners and players engage in positional bargaining rather than thinking creatively and seeking solutions. This may be one explanation of why mediation has a lower success rate in collective bargaining disputes than in other arenas; the recent NBA and NFL lockouts are prime examples.

But even if mediation is not successful in the NHL dispute, agreeing to mediation shows that both sides are interested in being seen by their stakeholders and the public as reasonable and willing to negotiate. It shows that the parties are aware of the costs and risks of alienating their own stakeholders. The desire to be seen as reasonable may allow space for the parties, with the assistance of a skilled mediator, to engage in a serious conversation about the issues separating them.

Both sides would be wise to keep the costs of a failure to achieve a settlement in the forefront as they enter into mediation. As the mediators most assuredly will point out many times and in different ways, the costs of not settling will be high, probably higher than the costs of a settlement and will unquestionably end in a “lose-lose” situation. 

Absent settlement, the consequences are likely to be union decertification; litigation; the loss of yet another hockey season; disaffected arena owners and local businesses, subjection to the mercy of judges and, possibly, the permanent loss of hockey’s fan base, without whom, there is no sport.

This is a situation we’ll be following closely. Hopefully both sides will see the merit of mediation and can follow the precedents set by baseball  and other collective bargaining negotiations that have benefited from mediation.

Prepared with Assistance from Michael Ciccarone

Maryland Mediation Confidentiality Act: Invoking the Magic Words

The Maryland legislature recently passed the Maryland Mediation Confidentiality Act  that took effect on October 1, 2012. It created a new subtitle 18 of Article 3, Courts and Judicial Proceedings of the Annotated Code of Maryland. 

The Act requires mediators to certify, in writing, “that the mediator has read and, consistent with state law, will abide by the Maryland Standard of Conduct for mediators…” for the confidentiality protections to apply (See Article 3-1802 (A) (2))

The provision in the Act requiring mediators to certify adherence to ethical standards means that the statutory confidentiality protections can be lost if the mediator fails to so certify, in writing.  In essence the parties, not the mediator, are punished by a mediator’s failure to invoke the magic words. They can lose the confidentially protection in the Act, often the sine qua non of mediation.

Mediators in Maryland must be aware of with this statute because it affects our practice; failure to follow the Act could result in parties losing the confidentiality provisions of the statute and expose the mediator to liability.

It is not hard to imagine that a party, having lost the confidentiality protection because of the mediator, could be pretty unhappy.  Enough to sue the mediator.

Here is a brief summary of some other important provisions of the statute.

With certain exceptions, the Act applies to cases in which the parties have agreed in writing that the Act applies or when they are required to mediate by law, except in court-referred cases under Title 17 of the Maryland Rules of Procedure.

However, the Maryland act does not apply to:

·        Maryland Court-annexed mediation conducted under Title 17 of the Maryland Rules;
·        Collective bargaining disputes;
·        Actions to enforce agreements to arbitrate under common law and the various Arbitration Acts;
·        Lien foreclosure mediation under Maryland Rule 14-209.1;
·        Certain parental matters under Maryland Rules 2-541; 2-542, 2-543, or 9-205.2;  
·        Mediation cases conducted by a judge who might rule based on the dispute; and 

·        Cases in which the parties and the mediator agree in advance in writing to exclude all or parts of mediation communication from the application of the statute.       

  

The Act also provides that signed agreements between the parties are not confidential unless the parties agree otherwise in writing. 

Section 3-1804 (B) of the Act sets our specific exceptions to the confidentiality standard. Those are:

·        A reasonable belief that the disclosure is necessary to prevent serious bodily harm or death;
·        To assert or defend against allegations of mediator misconduct or negligence or attorney professional misconduct or malpractice; or
·        To deal with allegations that, because of fraud, duress, or misrepresentation (emphasis added), a contract arising out of a mediation should be rescinded or damages should be awarded.

Finally, Section 3-1804 (C) has a general exception to the confidentiality provisions in the Act that allows a court to order mediation communications disclosed:

“…only to the extent that the court determines that the disclosure is necessary to prevent an injustice or harm to the public interest that is of sufficient magnitude in the particular case to outweigh the integrity of mediation.”

This, ‘prevent an injustice’ provision to allows the courts to act, when necessary, to protect threats to the public health, to address rare cases of potential denial of civil due process and even to protect a criminal defendant's constitutional rights. Absent such a general exception, it is possible that the statute would allow an injustice in the name of protecting mediation confidentiality. For an example of how a statute written to absolutely prohibit disclosure can result in such injustices, see my blog posts here and here