Considering Mediation in Environmental Justice Cases

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CBI Practitioners: 
Lawrence Susskind

 

Learning From Innovative Communities and Building Capacity
Over the last five years, CBI has sought to build an understanding of a mutual gains negotiation and alternative dispute resolution expertise within the environmental justice community. CBI works in partnership with Justice and Sustainability Associates (JSA) of Washington, D.C., with the assistance of the Program on Negotiation, the EPA Office of Environmental Justice, and the Hewlett Foundation.

 

Background
Since its inception over a decade ago, pursuing Environmental Justice (EJ) has most often depended on litigation in an effort to get grievances heard and to bring attention to the plight of low-income communities of color bearing multiple land use and environmental impacts. However, after ten years of litigation effort, exceedingly few cases have resulted in legal victory. In scattered communities throughout the U.S., in conjunction with litigation and organizing strategies, advocates have successfully sought out and use consensus building to resolve conflict and obtain compensation, project changes, or community benefits. CBI and JSA have sought to learn from these rich experiences, and applying our knowledge of consensus building, to prepare trainings and case studies that can benefit those seeking environmental justice across the U.S. The effort includes research, training, and dispute resolution.

 

Research
In order to tailor our knowledge of dispute resolution in the environmental justice context, we have undertaken research aimed at better understanding and documenting how residents of at-risk communities have succeeded in negotiating mitigation packages, relocation agreements, supplemental environmental projects, and other agreements with industry and agency representatives. This work was undertaken in a cooperative effort with the U.S. EPA’s Office of Environmental Justice.

We believe that the circumstances of these cases, with issues of race, power, and environmental exposure, are unique and require an in-depth look at how consensus building and collaboration does and does not work. Thus, we have completed several case studies where some form of negotiation or assisted negotiation has been tried. The five case studies entitled: Using Dispute Resolution Techniques to Address EJ Concerns: Case Studies document the following communities:

  • Kennedy Heights (Houston, Texas), who settled mass tort litigation against Chevron by working with a court-appointed special master.
  • Swansea and Elyria (North Denver), which participated in mediated litigation settlement talks with the owners of a railroad terminal (Vulcan Chemical) and the Conoco Refinery, each following substantial air emissions incidents.
  • Richmond (Northern California), which negotiated a memorandum of understanding with Chevron during the company’s pursuit of a construction permit for a refinery.
  • Manchester (Houston, TX), which negotiated the first community audit agreement with Rhone Poulenc during a permit approval process.

 

Lastly, CBI is working with the Hewlett Foundation to help the foundation evaluate Environmental Justice collaborative problem solving processes and outcome considerations. CBI staff worked with EJ communities to develop and test a survey instrument. During the spring, summer, and fall of 2003, Gregg Macey and CBI Senior Mediator, Mary Skelton Roberts conducted focus groups with EJ communities throughout the United States in an effort to better understand organizational, funding, and strategic considerations which influence their decisions to engage in collaborative problem solving. Hewlett will use the findings to explore how it can best support EJ communities achieve their environmental goals.

 

Training
Using our principles of mutual gains negotiation, our understanding with consensus building, and our knowledge of cases in communities seeking environmental justice, we have developed a three day training program to:

  • Inform staff and leaders of community organizations pursuing environmental justice about the concepts of alternative dispute resolution and the mutual gains approach to negotiation, mediation, facilitation and consensus building.
  • Interest participants in assessing the possibility of using mutual gains negotiation and consensus building techniques as a meaningful part (but not the only part) of their tool box in working toward environmental justice.
  • Increase networking among the participants and help sustain that network and the sharing of experiences through post-training materials, emails, and a website.
  • Ensure that the course is guided first and foremost by lessons learned from actual cases and best practices and those organizations on-the-ground seeking environmental justice.

 

To date, we have held three training courses: in Cambridge, Massachusetts, California, and recently completed a fourth in Memphis, Tennessee. With each course, our mutual experiences grow. One course participant who attended the Memphis training remarked: “I now have an extra tool to consider in my struggle for environmental justice.” Another stated, “Whether we decide to negotiate or not, the preparation phase is an important part of our own internal coalition building process.”

The courses have helped CBI refine the training and our use of consensus building in ways that take into consideration the tensions, complexities and challenges facing EJ communities. These trainings have been funded by the Program on Negotiation and the US Office of Environmental Justice. To learn more about the tools used in the training,

 

Mediation and Facilitation
CBI has for several years offered neutral assistance in the context of complex environmental disputes, including facility location, Superfund cleanup, and standard-setting.

We have a knowledgeable staff and a network of experienced facilitators and mediators who have worked with communities and organizations concerned about environmental justice. We are also seeking to increase the availability of mediators of color, through our trainings and our work with the EPA.

 

For more information on this case, please contact CBI.