Environmental Practice and the use of ADR - ABA YLD 101 Practice Series

By Lee M. Crowell

In order to reduce some of the burden that citizens face due to a judiciary which has become less able to meet its needs, society has moved increasingly toward Alternative Dispute Resolution (ADR). Various forms of dispute resolution have allowed citizens the opportunity to resolve issues faster and cheaper, and have allowed parties to resolve issues that actually result in justice. As individual parties have made the shift in ideology from litigation to ADR as a way to resolve disputes, state and federal government has made the shift as well.
The federal government codified its support of ADR within its administrative operations through The Administrative Dispute Resolution Act of 1996 (5 U.S.C. 571) and The Regulatory Negotiation Act of 1996 (5 U.S.C. 561). The use of ADR by administrative agencies has been quite successful and is routinely utilized as an alternative to the current legal system to the benefit of the parties involved. Though an agency may use ADR for the resolution of any issue pertaining to an issue that relates to "an administrative program", an agency is not to use ADR if

  1. there is a need to establish precedent on the issue,
  2. if the resolution would be contrary or not aid in the development of agency policy,
  3. any decision would appear to be arbitrary and capricious when compared to previous decisions,
  4. if any result would effect a nonparty to the proceeding, or the desire for a public record on the matter is viewed by the agency as important, and finally
  5. any result from the ADR process would limit the jurisdiction of the matter at hand.

Involving parties early in any agency action, such as rule makings, will result in a better work product through the formation of solutions that involve those affected and produce better working relationships with those being impacted by the agency action. By involving as many interested parties as possible, transaction costs in litigation or future ADR processes are reduced. The administrative agencies promote consensus building efforts because it brings all of the interested parties out into the open and allows them to have a hand in policy development that they may be interested in litigating later. By participating early in the process the desire to litigate the outcome is minimized because their participation creates an ownership interest.

The ADR process is not limited to the rule making process, but is used in permitting and enforcement actions as well. Under certain statutes, like the Comprehensive Environmental Compensation, Response and Liability Act (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA) the Environmental Protection Agency is mandated to use ADR in resolving disputes of alleged violations.

By utilizing ADR, the state and federal agencies have been able to pursue their efforts of protecting the human health and environment by working with a broad spectrum of interested parties, be they lay people, business professionals, or academic experts. Consensus building efforts work to address the concerns of interested parties during rule making while the cost and delay of future litigation is minimized when ADR used.
State and federal administrative efforts to protect the environment have been successful and widespread in environmental practice and this work has proven to be more effective, cost efficient, and less time consuming due to the advantages that ADR offers. By expanding environmental practice to include alternative dispute resolution as the main tool in the tool bag, we all win.

For further information:
Interagency Alternative Dispute Resolution Working Group, http://www.adr.gov/.
The Conflict Prevention and Resolution Center, http://www.epa.gov/adr/index.html.


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About the Author

Lee M. Crowell works as an attorney with the Virginia Department of Environmental Quality in the Division of Enforcement and may be contacted through www.deq.virginia.gov.

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