Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: SUMMARY AND ANALYSIS

J. William Futrell

J. William Futrell is President of the Environmental Law Institute, a non-profit research, publishing, and educational organization in Washington, D.C.

[17 ELR 10272]

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.

Emphasis on alternative dispute resolution represents a welcome long-overdue corrective, and is an important development for the Anglo-American legal tradition. As a Louisiana lawyer, I was raised on the civil law which stresses the importance of non-adversarial community approaches to dispute resolution. The Napoleonic Code used three basic sources in its effort to restate the civil law: the Roman law, the Salic law of the German tribes — as modified by the customs of the French people — and the Canon law.

The Canon law was an especially important source of legal philosophy. What we common law lawyers — we American lawyers (because Louisiana lawyers, despite their civilian heritage, are Anglo-American lawyers) — lack is the realization of how much the civil law owes to St. Augustine and St. Thomas Aquinus, both of whom were preoccupied with what we would classify as jurisprudential questions. St. Augustine, writing in The City of God in the 5th century, was dealing, not just with theological problems, but with one of the greatest social problems faced in history — the collapse of Roman law and society. A central portion of The City of God deals with the importance of convening people for consensual solutions. Just law in the City of Man derives from conventional solutions based on consensus (those growing out of a convention, a convening).

The consensus-building approach of St. Augustine was carried forward in medieval theology and in medieval politics. This strand of thought was developed in the central portion of the Summa Theologica, where Aquinus writes: vox populi vox dei — the voice of the people is the voice of God. This emphasis on consensual politics and democratic institutions is the gift of the medieval church to our civilization.

The importance and vitality of this development has been lost in Anglo-American law, due to Henry VIII, the Tudors, the seizure of the monasteries, the rise of anti-Catholicism and, finally, the English Civil War. The ultimate losers of that war became the leaders of American legal and social thought. Cromwell and the Puritans — long in disrepute in England — have had an intellectual influence in this country that continues to this day.

In Anglo-American law, trial by jury emerged as the most [17 ELR 10273] noteworthy component of our dispute resolution system. This was an advance over trial by ordeal and trial by combat (Ivanhoe fighting to acquit Rebecca) but it was no substitute for the other avenues of dispute resolution favored by the civil law. Thus, Anglo-American law neglects that value in our western legal tradition that is so strong in civil laws, so strong in the Code Napoleon — the value of accommodation.

In American law we have the tradition of a macho lawyer, the trial lawyer going for a duel before the jury. And this machismo pervades the entire legal culture, even in dealing with the Federal Trade Commission, the Environmental Protection Agency, in rulemaking, and in many other things far, far removed from the hard fact-finding that one finds in tort cases or at the criminal bar. This American emphasis on the adversarial process comes as a surprise to the two-thirds of the world's lawyers in Europe, Latin America, Japan, and French-influenced Africa who are Civil lawyers.

We need to acknowledge accommodation as a key component in the social purposes of law. This conference and others on alternative dispute resolution can aid in bringing these values to the fore in American law. Consensus-building and non-adversarial dispute resolution serve the purposes of legitimacy, upholding the state's credibility with its people as well as the values of individual liberty and economic efficiency. Larry Susskind's keynote address counseled us that we are not giving up anything but we are instead gaining new processes and new means of serving our clients' interests. Susskind stresses that alternative dispute resolution is not a substitute for what lawyers do, but instead offers them additional tools to achieve better results.

In addition to the social value of encouraging accommodation and the professional value of better client representation, there is a third and personal reason to encourage this movement. As a student, I had the opportunity to attend a seminar with Reinhold Niebuhr. I asked Niebuhr, at one point: What is a Christian lawyer? He said: Approach this from the great command for discipleship in Matthew, Chapter 31, verse 28: "Christ sends you forth to teach, to preach, and to heal." Well, he said, can you teach? What are you going to teach? Not teaching. Then preach? No, not preaching. What about healing? My initial thought was of the miracle of laying on of hands. The healing ministry of law, said Neibuhr, is to dry the widow's tears, take care of the orphan, to end conflict in society. You should apply this to the religious version of the lawyer and his mission in life, which is to end disputes peacefully.

This vision calls for integrity in our private and professional lives. Peacemakers are blessed in the life of the law as well as in the religious life. The current innovations in alternative dispute resolution are important, and long overdue, in the evolution of our law. As an environmental lawyer, I am heartened that many of these changes are being tried in our field. We should encourage them and nurture them. One of the most attractive aspects of this alternative dispute resolution movement is the emphasis on successful peacemakers. In this Airlie House Conference we heard case histories from the field from a number of peacemakers.

EPA is pushing alternative dispute resolution to cut down further delays from the cost involved in negotiating Superfund settlements. Sandra Rennie's story of Clean Sites, Inc. is an impressive account of a start that should be nurtured. Those of us who want to see consensual efforts grow must support Clean Sites and other such initiatives.

Lew Crampton's case history had an important element to it that no one else had picked up on: the need to encourage accommodation as a value in order to ensure that environmentalism does not bar the development of new technologies such as biotechnology.

I look forward to reading Gail Bingham's book on environmental mediation research and finding out about the details of those 78 percent of cases which were successfully settled.

Contrast the dispute resolution work described by Sandra Rennie and Gail Bingham, which deals with resolving past site-specific conflicts with identified parties, with the efforts described by Phil Harter and David Doniger, which deal with future rules and practices for the country as a whole.

The use of alternative dispute resolution in negotiating regulations is becoming very important in environmental law because of a pervasive dissatisfaction with the way environmental law has developed. Environmental law has become too detailed for its own good, or for society's good.

Let me point out just how complex it is. In 1970, Volume I of the Environmental Law Reporter published a summary of federal environmental law — 30 pages long. Currently, the statutes volume in the Environmental Law Reporter runs to 800 pages. That is not the statutes and regulations; that is just the text of the statutes alone, without commentary. There is too much of it. This has been one of the fastest growing areas of administrative law. It is intensely political, intensely detailed.

The iron triangle works in this area more prominently, perhaps, than in any other. There is a constant recourse from the agency to the courts, from the courts back to the legislature for a redrafting of more detailed statutes. The new 1984 RCRA amendments, with their 26 hammers and some 30-odd deadlines, are an example of this overly detailed statutory solution.

It has been calculated that, at the current rate, the hazardous waste regulations will number more than 30,000 pages by the year 2000, and thereafter are expected to expand outward at the speed of light.

Last month, the Environmental Law Reporter began publication on Lexis. We are now an electronic publisher, and we will be able to keep up with it all. No matter what happens, we will keep up with it — and charge our customers for it. For society, however, this profusion of regulations is too heavy a burden. If law is to remain credible, it must be simple and straightforward.

There is, however, a reason for this current approach. Environmental law is plagued by distrust. I refer to the confrontations in 1981 and 1982, which led to the resignations of Rita Lavelle and Ann Gorsuch and which led directly to the complex overly detailed 1984 RCRA amendments. Congress does not trust EPA and will not give the agency discretion in regulating pollutants. If EPA is to function well, if it is to be as effective as the Securities and Exchange Commission or as the Federal Aviation Administration, it will need to achieve a different relationship with Congress. That is not going to happen until public and congressional distrust of the agency diminishes. The peacemakers are desparately needed on this front.

This Airlie House Conference had a most valuable two hours with four peacemakers in the regulatory negotiation area. Phil Harter told us about the Federal Aviation Administration rulemaking. LaJuana Wilcher described EPA's experience with regulatory negotiation. She believes it not only promotes efficiency and accommodation for the agency, but also fosters creativity when private parties help define new solutions.

Scott Ferguson gave us a valuable case history of the FIFRA regulatory negotiations. He emphasized the importance of confidentiality, the problems of building respect between the parties, [17 ELR 10274] and the need to handle the sacred cows and the unique terminology of the other parties. He also observed that the environmental representatives did not have the funds to pay for the necessary expertise to fully support their activities in this area.

David Doniger made an important observation when he said that the future of EPA regulatory negotiations may depend on the adequacy of resources to conduct future proceedings. He was involved in both the regulatory negotiation on wood stove emission standards and the truck engine emissions. He gave the warning to beware of promoting negotiation for its own sake. Resources are too limited. The issue of funds to pay for these supplementary private efforts is an important one.

We were very fortunate in being able to hear two case histories from Larry Susskind. The vignette of policy making and administration in Camden, New Jersey was one of those case histories that bring the issues to life. How can one do anything but applaud and wish these people well in their efforts? Larry Susskind called his work an additive effort to the judicial process, an effort to to bring forward supplementary resources in a supplementary process.

Sam Tucker's talk on environmental auditing focused on private sector initiatives. Listening to him, I reflected that environmental auditing is plain good management. We are reaching the mature age of environmental management. Environmental planning and compliance are becoming integrated into business planning. Sam's calls for cross-sector cooperation are part of the same approach that we have been discussing.

As I came to the end of my notes, I wondered whether this conference was properly titled. Should it have been called "Privatization," or should it have been called "Expanding Interest Group Participation in Environmental Law," because many of these proposals call for expanded private interest participation in more government process, rather than privatization per se? And I was struck by the possible down side of these well-intentioned efforts.

There are those who take a jaundiced view of these new peacemakers.

Private sector use of this new approach must be paralleled by public sector cooperation. Such a development requires government to listen more. In Habits of the Heart: Individualism and Commitment in American Life, the authors tell about the citizen participation efforts of a community group to use a consensus-building approach in a community renewal project. At the end, clearly caught off guard by the arguments of the citizen group, the mayor's people respond with the revealing objection that it would be an administrative nightmare for them to go forward with the group's proposals. Government officials as well as citizen groups have reservations about using alternative dispute resolution.

When Larry Susskind talks about supplementary process, I suspect that the supplementary process will require still more additional due process. It will require notice and opportunity for hearing and will result in more bureaucracy, more delays, and more interest group lobbying. There will be more constituency building by EPA. Constituency building occurs when agency officials build up supportive groups through the award of subsidies and increased opportunities for participation.

With respect to the chicken and the egg (which comes first, the interest group or the government), political scientist James Wilson's theory is that it is government that builds up and nurtures trade associations and interest groups by means of various participation programs. Wilson's statistics are fascinating. Fifty percent of all American trade associations were started within two years after the founding of the Department of Commerce. Twenty-five percent of the remaining trade associations began two years after the NRA of 1933. More process — even informal process — means still more lobbyists.

If you create additional governmental processes, you create more interest group opportunities, and more interest groups come in to fill the gap. You may consider this to be either a good or a bad development, depending on your political philosophy.

Political scientists ask questions about pluralism and interest groups: Are they mediating institutions? Do they ensure against alienation? Do they helpfully ventilate issues and grievances? Do they bring facts to the legislature? Do their actions lead to better results? On the other hand, are there no checks on their power? Do they eliminate the general public interest from effective political consideration?

Since the 1960s, environmental activists have endorsed interest group activity. The word has been: Get on the interest group bandwagon. If you can't beat them, join them. And so the National Wildlife Federation, the Sierra Club, the Audubon Society and thirty or forty other groups here join in the Washington lobbying scene. These efforts require money, resources, and sophisticated capabilities. The additional avenues suggested here today, for regulatory negotiation and for alternative dispute resolution, are going to require additional financing of a major degree. Do citizen groups have the resources to handle this additional process?

When Bruce Terris tells you that he has handled nearly $1 million of up-front citizen suit expenses for a return of $50,000, he is citing statistics that parallel the experience of the Natural Resources Defense Council and others with respect to their clean water action campaign. The citizen suit provisions of the Clean Water Act are supposed to be adequately funded by the award of attorney's fees. Terris reports that the system isn't working. Regulatory negotiations and similar proceedings praised by Messrs. Susskind and Ferguson and LaJuana Wilcher currently have zero funding. Terris and Doniger warn us about the expenses of this additional process.

Ted Lowi comes down very strongly in his book, The End of Liberalism, 1970s, on this question of additional process. He advances three propositions questioning the value of more interest group activity.

(1) He questions whether the organized representatives are accurate representatives of the members of their organizations. For instance, in Mr. Ferguson's case, can we assume that the NRDC and Congress Watch representatives represent the millions of grassroots environmentalists in the United States?

(2) He questions whether organized interests accurately represent most of the affected sectors. Again using the case history recited by Mr. Ferguson, this assumes that the farm-workers and environmentalists are the groups to negotiate with the chemical industry and that they can speak for other unrepresented interests.

(3) He questions whether the role of government will ensure access, so that adjustments can be worked out among competing leaders.

In practice, Professor Lowi believes that interest group politics results in the erosion of the public philosophy and weakens representative government.

The problem is that government is not cheap, either for the administration or for the citizens who are participating. It requires us to build consensus and to end conflict.

Lowi fears that public funding of these organizations maintains privilege — a government-sponsored pluralism. When they get their seat at the table, these groups no longer have the function [17 ELR 10275] that they have played as independent critics of society. Citizens who want to participate on these issues will have to belong to the groups. The groups will be the clear and legitimized representatives of these interests. They will represent more hierarchy and will introduce more hierarchy into our society.

The groups that get the seat at the table, who are recognized by the agency, get a vested interest in their new status and become resistant to change. And so the cycle repeats itself. Lowi believes that interest groups, instead of acting as information sources, as bargainers and lubricators of our society, now contribute to gridlock and social sterility. Lowi has been very influential. The approach that he recommends for Congress, enactment of detailed statutes spelling out mandatory agency duties, has been followed in the environmental field.

Is that a solution for the future? I hope not. I think we have gone as far as we can go with that approach. Look at what happened in the 1985 Superfund reauthorization. This public works program, designed to clean up hazardous wastes, has been the subject of a legislative contest, a game of chicken, between the Administration and the Democratic House. Both sides believe firmly in their position and as a result the program has been deadlocked, and the Superfund program has been crippled. If you believe EPA officials, if you believe Bill Hedeman and Lee Thomas, and I do (important leaders of our country do not), the program has been set back a year and a half by the failure to reauthorize the program before September 30, 1985. It is very easy to blame the process that is fueled by interest group conflict. Yet, that is the nature of our country because of the separation of powers which invites deadlock between the branches of government.

Thomas Jefferson said, "Free government is founded on jealousy, and not confidence. On questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. What I want," said Jefferson, "is to force the President and Congress to bargain over control of power, and to force disputes on control between the states and the federal government."

What happened on Superfund was intended by our founding fathers. And whether the House Democrats shall prevail on the question of "how clean is clean," whether the Clean Air and Clean Water statutes shall set the ultimate cleanup standard, or whether the nonpunitive public works program approach of the Administration will prevail, will depend on the will of the people.

These are firmly held positions, and the possibility of gridlock is at the heart of our government. In order to make the government work, we need the lubricators, the peacemakers.

In this discouraging scene, the most encouraging development is the upsurge of new sector initiatives to use alternative dispute resolution to hasten cleanup and to lessen its cost.

Dean Roscoe Pound's address to the American Bar Association in 1906 called for lawyers to "take the lead," to see that ours was a system that was "economically efficient and socially useful." The current efforts at alternative dispute resolution are a further way in which lawyers are making the law more economically efficient and socially useful.

The closing speaker of this conference was Bob Barrett, who talked about the need to experiment. The hopefulness and the optimism that we should harbor toward these initiatives can be seen in Bob Barrett's approach. This is a new area, and these are fledgling attempts. Barrett reminds us of the youth of the field and of what we need to do to allow it to grow, and to assist its growth.

The importance of convening is at the heart of all of these efforts. The Standing Committee on Environmental Law has our gratitude for convening us this weekend. I appreciate the opportunity to be a part of it, and I congratulate the Committee for the work you have done.