General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
ENVIRONMENT, ENERGY, AND RESOURCES LAW
BROWNFIELDS AND THE PROMISE OF MEDIATION
BY TERESA B. SALAMONE
In 1993 the outlook was bright for an environmental policy that encouraged redevelopment of abandoned industrial property. A new idea was emerging that favored finding new uses for abandoned industrial or "brownfield" properties instead of starting construction on undeveloped or "greenfield" properties. This effort resulted in a wide variety of new programs and policies such as technical guidance that streamlined cleanups, job training initiatives, new lending policies, enhanced tax advantages for environmental remediation, and grant programs for investigating contaminated sites.
Five years from its hopeful initiation, however, cracks are forming in the foundation of the brownfields program as the EPA and other stakeholders reach the limits of their individual ability to create incentives for redevelopment. Agencies, formerly partners in the creation of initiatives in support of brownfields, are beginning to chafe at the barriers to integration of these varied initiatives. Communities are beginning to express dismay over the scope of their input, and the EPA is rethinking its role in the implementation of the program. These recent reassessments serve to identify the critical issues for the program's continued success: How will the brownfields stakeholders communicate and reach agreements on the wide variety of interests that are presented? The failure to find an acceptable alternative puts the promise of the brownfields program at risk.
The EPA must develop a pro-cess of communication and consensus-building that is clear, consistent, and reflective of the goals of the program. Without this communication process, the gains that have been accomplished and the promise of the brownfields redevelopment program will be lost in conflicts over the process of reaching agreement. The result will be no short-term agreement on development goals, and no long-term establishment of relationships among the stakeholders. Moreover, the stakeholders included in this program will not gain valuable communication tools that will allow them to reasonably resolve more broad-ranging policy issues.
In the beginning, redevelopment was seen as primarily an environment issue, with stakeholders urging the EPA to assess and modify existing cleanup standards for brownfields properties and to identify funding for assessing the scope of risk posed by a potential brownfields site. The EPA responded promptly to both challenges, awarding brownfields grants to communities. The EPA also began to address the perceived stigma attached to contaminated properties from the standpoints of liability and remediation costs. Since 1995, the EPA removed 25,000 sites from the CERCLIS list, issued numerous guidance documents clarifying the liability of prospective purchasers, established clearer goals for the cleanup of an industrial property, and identified brownfields as potential supplemental environmental projects as a way to reduce environmental penalties.
As new environmental policies emerged, the EPA also recognized that industrial property redevelopment encompassed other interests such as community interaction, job creation, and economic development incentives. In 1995, to ensure that community involvement issues that related to redevelopment were addressed, the EPA created the National Environmental Justice Advisory Council. Other redevelopment issues were addressed through partnerships with the Federal Housing Finance Board, the U.S. Department of Commerce, the Department of the Interior, and the Department of Labor. By 1997, 15 federal agencies had created brownfields initiatives.
There is no question that federal agencies and Congress embraced and responded quickly to environmental and other issues raised by the brownfields program. There is also no question that the program has been a success in some instances, with industrial properties returned to productive use, jobs created, and communities reestablished. As the program matures and spreads across the country, however, some stakeholders are expressing concern with its implementation, claiming that the EPA does not consistently consider community involvement at each site and appears to have no standard protocol for inclusion of community input.
On the other hand, other stakeholders argue that there is some question of the weight community opinion should play in a cleanup decision and moreover, some question the role that the EPA should play in obtaining community input. Some stakeholders have argued that it is up to the local governments and not the EPA to ensure that local input is collected and integrated. The EPA itself has questioned its future in the spearheading of the brownfields program, suggesting that it is evolving into a redevelopment program, an area more within the expertise of HUD, not the EPA.
These positions frame the future of the brownfields debate and signal the need for a clear protocol for conducting brownfields negotiations, including a process for incorporating the views of all stakeholders. Community stakeholders, for example, play a critical role in brownfields decisions. Community-based public participation can prove to be an efficient factor of brownfields redevelopment where there is a clear sense of community objectives.
Recognizing the need for all stakeholders to be included in a meaningful way in brownfields redevelopment decisions, the question remains how this input can be solicited and incorporated. An existing solution, one that is being embraced by the 6,000 members of the new Alternative Dispute Resolution Section of the American Bar Association, is an alternative dispute mechanism referred to as consensus-based decision-making, or "mediation," that provides all relevant stakeholders a safe and equal forum for reaching agreement on brownfields issues. The process assumes that the interests of all parties bear equal weight, and that consensus, meaning agreement of all parties, will be sought on every issue. The process is typically facilitated by a neutral third party that has the job of drawing out and clarifying the interests of the parties, but may also be effectively managed by a skilled stakeholder. The final agreement is tested for durability, and all parties must be committed to its long-term implementation.
The benefits of mediation include a final decision that incorporates the interests of all the parties. These agreements create not just a short-term solution to a particular issue with which all parties are satisfied (such as cleanup levels), but also establish a long-term relationship between the parties upon which all future communications can be based.
The most important benefit of mediation is the long-term benefit to society of training stakeholders in a more appropriate form of conflict resolution. The EPA, by choosing to use a consensus-based approach, will be teaching a broad range of stakeholders a new way of reaching agreement, giving them tools to reach agreement on future issues.
Many argue that the process of mediation is not effective because it takes too long and that by requiring consensus, it creates the risk of no agreement among diverse opinions. While concerns over timing and gridlock have some validity, there are also important issues to keep in mind with respect to the risk of failing to reach consensus. If it is truly the goal of the agencies and the stakeholders to establish a durable agreement that can be implemented successfully, all dissent must be identified and addressed at the outset.
The brownfields program has more potential for success than any other environmental program sponsored by the EPA in a decade. To ensure that the program does not fragment and to create an atmosphere that encourages a creative and constructive approach to reaching agreement, the EPA should begin to encourage the use of mediation in brownfields negotiations. This process will ensure that the interests of all the parties are heard and that the resulting agreement will be durable and implementable. It will also ensure that a long-term and positive relationship has been developed among the parties, and that society will begin to shift to a more positive approach to reaching agreement.
In January 2000, the EPA issued notice of a soon-to-be released report detailing the EPA's ADR accomplishments and identifying EPA policies on new ADR programs, enhancement of existing programs, and dispute resolution training for agency staff and managers. These new policies are intended to satisfy the requirements of the Alternative Dispute Resolution Act, which requires federal agencies to examine use of ADR in connection with formal and informal adjudications, rulemakings, enforcement, and litigation.
The EPA OSWER has also issued an 11-minute video for use by communities entitled "Super-fund Risk Assessment and How You Can Help: An Overview," which is intended to describe the meaningful role that communities can play during a health risk assessment process. The video may be obtained by calling 513/489-8190 and requesting EPA 540-V-99-003, OSWER 9285.7-28B.
Theresa B. Salamone is a contract mediator for Saskatchewan Justice, and an environmental consultant in the United States and Canada. She is an attorney and has worked in the area of environmental law for more than 15 years.
For more Information About the Section of Environment, Energy, and Resources
- This article is an abridged and edited version of one that originally appeared on page 54 of Natural Resources & Environment, Summer 1999 (14:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/environ/.
- Periodicals: Trends, bimonthly newsletter; Natural Resources & Environment, quarterly magazine, The Year in Review, annual summary of legal developments.
- Books and Other Recent Publications: Environmental Aspects of Real Estate Transactions, 2d ed.; The NEPA Litigation Guide; The Law of Environmental Justice; A Guide to RCRA Inspections; Restoration of Oil Field Sites; How to Start and Build and Environmental Practice.