ALTERNATIVE DISPUTE RESOLUTION IN ENVIRONMENTAL LAW

Contents

1. ADR in Environmental Law - Initiatives the Word Over, An Introduction

2. Arbitration as a Dispute Resolution Method in Environmental Disputes.

3. Environmental Mediation.

4. Conciliation in Environmental Dispute Avoidance and Resolution.

5. Other ADR processes in Environmental Disputes.

6. Conclusion.

7. Environmental Dispute Resolution Resources.

ADR IN ENVIRONMENTAL LAW - INITIATIVES THE WORD OVER.

AN INTRODUCTION

Alternate dispute resolution in environmental law is a thorny issue, since most environmental disputes arise from actions in rem. In addition, the stands taken by parties in such disputes are intractable in nature[1]. As Burgess and Burgess point out, "Serious environmental conflicts tend to consist of highly intractable moral conflicts or high-stakes distributional debates over who gets what"[2]. In such a scenario, whether ADR methods would be productive is a matter of serious debate.

The basic features of ADR methods that make them a convenient alternative to accusatorial courtroom processes are themselves weaknesses when it comes to environmental disputes. For example, ADR processes largely arise from actions in personam and are best suited to one-to-one across-the-table settlements; environmental disputes, on the other hand, are a curious mix of actions in rem and actions in personam. Identifying the parties in environmental disputes is itself a difficult task.

An additional disadvantage that advocates of ADR face is the total lack of recognition accorded to ADR in International environmental law treaties and domestic environmental laws alike. However, there are a number of initiatives the world over, to achieve such recognition through formulation of concrete proposals and guidelines for alternatives to environmental litigation. Some of the prominent initiatives in this field are as follows:

1. The American Arbitration Association's[3] Environmental Dispute Avoidance and Resolution Program.

2. The International Court of Environmental Arbitration and Conciliation (ICEAC)[4].

3. The New York State Department of Environmental Conservation's[5] (NYSDEC) Environmental Dispute Resolution Program (EDRP).

Each of these initiatives has its own distinct approach to the problem. The American Arbitration Association classifies its available services as Dispute Avoidance Services and Dispute Resolution Services.[6] Under the former head, i.e. Dispute Avoidance Services, the Association suggests Conciliation, Moderation and Facilitation as ideal methods. Under the latter head, i.e. Dispute Resolution Services, the Association suggests Fact-finding, Mediation and Arbitration. The ICEAC, as its name suggests, offers Arbitration and Conciliation Services to States and natural or legal persons.

The NYSDEC's EDRP focuses mainly on Mediation.

Hence, it may be stated that the various dispute avoidance and resolution methods available to parties presently are as follows:

1. Conciliation.

2. Moderation.

3. Facilitation.

4. Fact-finding.

5. Mediation.

6. Arbitration

This module examines these processes, with its focus being on Arbitration, Mediation and Conciliation. The aim of this module is not to provide an in depth study of dispute resolution techniques, but to familiarize the reader with the various ADR processes available and their advantages and disadvantages.

The module analyzes the above-mentioned ADR methods in the following order: (a) Arbitration, (b) Mediation, (c) Conciliation, and (d) other processes.

ARBITRATION AS A DISPUTE RESOLUTION METHOD IN

ENVIRONMENTAL DISPUTES

Arbitration in India is governed by the Arbitration and Conciliation Act 1996. Under the Act, parties who are bound by a specific legal relationship, whether contractual or not, may reach an arbitration agreement[7]. Section 7(1) of the Act reads as follows:

"7. Arbitration agreement.-(l) In this part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.[8]*

The primary question this definition raises is, what is a defined legal relationship in the context of environmental disputes? The answer to the same may be found in tort law, i.e. in the neighborhood principle[9]. This, read with the Polluter Pays Principle and tort concepts like nuisance, proves that there exists a defined legal relationship between the polluter and those affected[10].

It is not necessary that the legal relationship be commercial in nature, except in the case of international arbitration. This is understood from sections 44 and 53 of the Act", where the words "considered commercial under the law in force in India[11]are used. Thus, Indian law does not provide for the enforcement of foreign arbitral awards unless they relate to matters considered commercial in nature. At the same time, however, one must remember that the New York Convention itself does not impose this limitation. It is open to the Contracting States to impose such a limitation under the Geneva Protocol on Arbitration Clauses of 1923, which has ceased to have effect since the New York Convention was adopted. Hence, the validity of this limitation is in doubt.  Therefore, it may be stated that arbitration is legally permissible under Indian law in relation to domestic non-commercial actions. But the question still remains as to how amenable the principles of arbitration are, to actions in rem in general and environmental disputes in particular. The initiatives taken by the American Arbitration Association and the International court of Environmental Arbitration and Conciliation need to be examined.

The ICEAC requires the parties to give a "formal commitment to co-operate in the settlement of the dispute by Arbitration and to execute the award given by the Tribunal or to facilitate its execution"[12]. In the case of either of the parties being a State, this commitment should include a waiver of sovereign immunity for the execution of the award[13]. On receiving such commitment from all parties, the Court will resolve the dispute in accordance with the applicable Law, and the norms agreed by the parties[14].

The AAA defines its Arbitration service as follows: "ARBITRATION is a legally binding process in which the neutral who is experienced in the industry within which the dispute exists listens to each party's position and renders a final award. Since there is little room for appeal, this process generally ensures a final adjudication of the claim and is effectively used in place costly and lengthy litigation. At the time of filing a case, parties may agree to elect non-binding arbitration, where the arbitrator's decision is only advisory."[15]

As may be observed from the above examples, environmental arbitration is still in a nascent stage, Svith no formal recognition from Governments across the world. The enforcement of arbitral awards of either of the above-mentioned bodies is still a dicey proposition.

ENVIRONMENTAL MEDIATION

Environmental mediation has been defined as "...a voluntary process in which those involved in a dispute jointly explore and reconcile their differences. The mediator has no authority to impose a settlement. His or her strength lies in the ability to assist the parties in resolving their own differences. The mediated dispute is settled when the parties themselves reach what they consider to be a workable solution."[16]

Mediation is less formal method of dispute resolution and is not expressly recognized by Indian law. However, mediation is not disallowed; in environmental disputes, mediation is a very powerful tool due to its informal nature and the mediators' ability to facilitate a settlement.

The AAA definition of environmental mediation is as follows: "MEDIATION is a process which uses a neutral to help the parties develop a resolution to a dsiagreement. The mediator does not have the authority to render a decision, but helps the parties in developing possible solutions to the problem. This may be accomplished through the use of private, confidential meetings with each party. At some point, the mediator may give the parties his/her opinion regarding the merits, value and content of their case. Once an agreement is reached, it is documented in writing and signed by the parties. The agreement becomes binding with the signature of the involved parties.... All information divulged in a mediation is confidential and not to be produced in future dispute resolution proceedings." Mediation may be initiated by any party or parties to a dispute through a request to the AAA under Guideline 2 of the Environmental Mediation Guidelines. Where there is no submission to the mediation or a contract providing for such mediation, the initiating party or parties may request the AAA to invite the other party or parties to join in a submission to mediation. The AAA, under its Mediation guidelines, will then invite the other parties and will attempt to obtain such submission. Once such submission is obtained, the AAA will appoint a qualified mediator to serve, unless the parties specify a mediator of their choice[17]

.

The NYSDEC's Dispute Resolution Program is based on a mediated settlement model. In this model, mediation is "typically engaged when a dispute or contention surfaces. Negotiations may or may not have already reached an impasse[18]. "As per the DEC model, mediation has a place in many environmental matters, including:

1. Enforcement of environmental programs.

2. Negotiation of contentious conditions.

3. Allocation of resources or pollutants.

4. Public participation efforts, negotiation of consent agreements.

5. Contract disputes.

6. Regulatory rule development.[19]

At the same time, it is not an easy task to initiate mediation proceedings in environmental matters. The DEC itself is clear on the fact that "... many mediated settlements take place in the context of environmental enforcement. These disputes often readily lend themselves to an assisted negotiation because they may involve limited parties, may need negotiation of remedial activities and the amount of payable penalty."[20]

Though mediation has proved a successful means of environmental dispute resolution in America[21], there are a number of problems associated with the same. The reasons for the same may be understood from the following statement: "The successful application of environmental mediation and consensus-building techniques is limited by two factors - the intractable nature of many environmental conflicts and the fact that the parties are unlikely to voluntarily agree to a settlement that offers them less than might be obtained by pursuing their interests in legal, political, or other arenas."[22] The main limitations to mediated or negotiated settlements, according to Burgess and Burgess, are (a) intractable conflicts and (b) the availability of Better Alternatives To Negotiated Agreements (BATNAs) in the form of power contests[23]. They further point out that win-win situations do not exist in environmental conflicts[24].

At the same time, mediation is a good choice and is perhaps the most successful in cases where the following conditions exist:

1. it is highly desirable to maintain existing relationships between the parties to continue in a professional or cooperative atmosphere,

2. no BATNAs exist,

3. transactional costs are at a premium,

4. the parties are sufficiently equipped and able to understand the substantive issues,

5. "the parties wish to maintain control over the outcome of the process and the nature of the dispute does not interfere with government's preference to prosecute for deterrent value, explore novel issues of fact or law or make a policy statement."[25]

CONCILIATION IN ENVIRONMENTAL DISPUTE AVOIDANCE AND RESOLUTION

Part III of the Arbitration and Conciliation Act[26] regulates conciliation proceedings in India. Section 61 of the Act reads as follows:

"61. Application and Scope.-(l) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.

(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation".

Hence, under Indian law, conciliation of all disputes arising out of legal relationships is permitted, where the parties have agreed upon it and where the law does not expressly bar such proceedings. Conciliation is seen as an effective tool in environmental dispute avoidance and resolution.

The ICEAC and the AAA recognize the role of conciliation in environmental disputes. The AAA considers conciliation a method of Dispute Avoidance. The AAA definition of its Conciliation service is: "CONCILIATION is the process which uses a neutral to help the parties set up their own settlement 'meeting. The conciliator may provide facilities for the meeting, act as liason in setting up the meeting, and be available to provide administration, secretarial and other support services to the parties. The conciliator does not participate in the discussions, but is available should the parties need a moderator, facilitator or mediator if the settlement discussions are unsuccessful."[27]

The ICEAC model views conciliation as suitable for both dispute avoidance as well as dispute resolution. According to the ICEAC Foreword[28], "Any public or private entity which wishes to initiate conciliation procedure must submit an application to the Court, which will send a copy of this application to the other Party. Once intervention by the Court has been accepted by both Parties, a Commission comprising an odd number of conciliators will be appointed by the Secretary General in consultation with the Parties and the Members of the Court. The Commission will have to clarify the points of controversy between the Parties and strive to achieve an agreement between them, under conditions acceptable to both sides. .... If, at any time during the procedure, the Commission decides that there is no possibility of achieving an agreement between the Parties it will declare the procedure closed and draw up a document, making note of the fact that the controversy has been submitted to conciliation without an agreement having been reached."

There are no strict rules of procedure involved in conciliation proceedings, except those that are mentioned above. The negotiated settlement in such proceedings is binding, unlike in mediation. In Indian law, the settlement agreement has the same weight that an arbitral award has. Section 74 of the Arbitration and Conciliation Act 1996 reads as follows:

"74. Status and effect of settlement agreement.-The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30."

Another important facet of conciliation proceedings under Indian law is the non-obstante requirement that the conciliator and the parties shall keep all matters relating to the settlement confidential including the settlement agreement, except insofar as its disclosure is necessary for purposes of implementation and enforcement[29] . Such a requirement works to the advantage of most parties, especially in the context of environmental disputes, since these disputes attract a lot of publicity that is unwanted at times.

OTHER ADR PROCESSES IN ENVIRONMENTAL DISPUTES

In addition to the three processes examined earlier, there exist other Alternative Dispute Resolution processes that are available to parties involved in environmental disputes. These include (a) moderation, (b) facilitation and (c) fact-finding. These services are offered by the American Arbitration Association, and may easily be adapted to Indian requirements.

(a) MODERATION involves the use of a neutral third party to ensures that meetings between parties are conducted in a productive and orderly fashion. The moderator, unlike a mediator, offers no suggestion as to the substance of the debate.

As per the AAA model, the moderator "... serves to assist the parties in scheduling and in developing guidelines for the meeting. The moderator attends the meeting, calling upon the appropriate people to speak at their designated time and discouraging interruptions and outbursts. This process is most often used for disseminating information to and gathering comments from the public or community on a specific development or environmentally sensitive site."[30]

(b) FACILITATION is the "means by which a neutral leads the parties through a communication process to handle a particular situation or solve a problem.

Unlike moderator services, facilitation helps the parties work together as a team with the goal of developing a specific outcome at the end of the process. The facilitator serves to identify issues to be discussed and provides input only on the process of discussions, n6t on the content. Facilitation is often used in developing regulations or on projects requiring input from various entities such as citizen input on private development plans or multi-public agency endeavors, or private industry/public agency negotiated agency rulemaking."[31]

(c) FACT-FINDING "entails the use of a neutral person to investigate particular facts about a case or a portion thereof. A fact-finder's role is limited to identifying the facts of thetopic requested and does not include recommendations regarding dammages or an award. This process can be extremely useful as a stand-alone service or in conjunction with any of the other ADR services listed. Most requirements   for   fact-finding   will   fall   under   document   review   or detective/investigative services."[32]

Fact-finding services in India are not unknown, since Indian Courts have for long appointed Commissioners to enquire into specific topics and submit an unbiased report. A similar process can therefore, be introduced in solving environmental disputes through ADR processes.

CONCLUSION

There are a number of ADR processes available to parties involved in environmental issues. These relate to dispute avoidance as well as dispute resolution. However, these processes presuppose the existence of the following conditions:

1. Identification of parties.

2. Willingness of parties to negotiate.

3. Availability of enforcement mechanisms.

The abovementioned conditions are often not fulfilled, rendering these processes ineffective. However, fact-finding is an effective tool available to all interested parties, whereby a neutral third party identifies the facts and parties involved in an environmental issue. Thus, this process helps parties in deciding on a strategy for settlement of the issue. This strategy may include any of the dispute avoidance and resolution methods named in this module.

As Burgess and burgess point out, the intractable nature of environmental conflicts is a deterrent to ADR processes in most cases[33]. As a solution, they recommend a number of steps to be taken by the parties as well as the neutral third party intermediaries, so as to help achieve a consensus[34].

The non-availability of enforcement mechanisms, except maybe for contract law, is another deterrent to parties who wish to go in for alternative dispute resolution. The onus is on the State to provide for legal recognition and enforcement of alternative remedies in environmental issues. In the absence of any provision to the contrary in International Conventions, the bar on non-commercial International Arbitration under sections 44 and 53 of the Arbitration and Conciliation Act 1996 needs to be reconsidered in this context.

Alternative Dispute Avoidance and Resolution methods provide a cost-effective and amicable remedy to environmental issues. Hence, all bars to the same, both express and implied, need to be reconsidered.

ENVIRONMENTAL DISPUITE RESOLUTION RESORUCES

Resources in this field are few, but those that are available are extremely useful. The following resources are a mine of information

Books

1***, Environmental Conflict Resolution

Websites

1.       http://www.adr.org/- The American Arbitration Association’s Official website

2.       http://iceas.carenet.cs/-The International court of Environmental Arbitration and Conciliation’s websites

3.       http://www.greenchannel.com – An International Environmental Repository.

4.       http://www.dec.state.ny.us The New York State Department of Environmental Conservation.