The issue of standard-setting by consent is an important one. In this talk, I would like to describe a case in which I served as a facilitator or mediator in such a consensus building effort. The case involved the siting of a resource recovery—or trash-to-energy—plant in New York City. The issue of standards arose, because a number of people, especially those in Brooklyn who lived next to the proposed site, decided that this kind of facility was not safe. Barry Commoner, a respected scientist and environmental advocate, supported their view.

I am not an expert at negotiation. I did participate, however, in a recent effort to amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).¹ Many people feel that this effort was a significant step toward resolving some of the major differences between our industry (the agricultural chemical pesticide industry) and the environmental community. I was asked to speak about these negotiations.

I have been involved in two of the experimental U.S. Environmental Protection Agency (EPA) regulatory negotiations. The first had to do with setting penalties for the truck makers who make engines that do not meet standards. The second, in which I am still participating, involves drawing up a standard for new woodstoves. I have also been involved in traditional settlement discussions in the context of lawsuits, several of which have been successful, and a couple of which are still in the works.

Up to now you have been hearing of the brave new world in which nice people sit down and talk together, perhaps under the leadership of charming mediators and facilitators, and when they are done, there will be a solution. For my part, I will be talking about the old world, the use of power. It is judicial power, but, essentially, one group of people imposing an outcome on others.

When we consider the respective roles and responsibilities of government and the private sector in maintaining compliance with the laws of the land, it becomes evident that there are big stakes on all sides. This includes the public, whom the laws are intended to protect, and who must pay for this protection in the end.

I would like to discuss the respective roles of the federal government and private citizens in the enforcement of environmental laws. This is an area that raises a host of questions, some pragmatic and some more philosophical. In general terms, who should be in the driver's seat with regard to environmental enforcement? Should it be the federal government (along with its state counterparts), or should it be private persons bringing suits under the various citizen suit provisions?

The Superfund¹ statute, while lacking an explicit provision on the subject, is a law that lends itself well to alternative dispute resolution (ADR). The nature of the disputes as well as the appearance of the same parties in many of these cases give rise to an interest among the parties in being able to maintain ongoing relationships. Also, there are features in the law itself that create practical problems that demand intensive resources in a short time.

The National Institute for Chemical Studies isan organization established by local leadership to assess the magnitude of chemical risks in West Virginia's Kanawha Valley and what should be done to control them. We are located in the Kanawha Valley of West Virginia, which is about 35 miles long, and runs from Nitro to Belle. Within its boundaries live about 250,000 people cheek-by-jowl with approximately twenty chemical manufacturing facilities.

I was struck, when practicing law, with how much of society's human talent and creative resources were being allocated to litigation processes that appeared to furnish little in the way of problem-solving outcomes. The results seemed certainly not commensurate with the amount of effort invested.

The 1986 Airlie House Conference of the Standing Committee on Environmental Law, entitled "The Expanding Role of Private Institutions in Public Environmental Decisionmaking," focused to a large extent on recent efforts to bring alternative dispute resolution procedures into the field of environmental law. Panels on standard setting by consent, negotiated rulemaking, and private facilitating dominated the day's discussions.