The State of State Environmental Agency Mediation
Mediation as Part of Administrative Hearing Programs
A number of states have a central panel of administrative law judges (ALJ's) that hear appeals from all agencies. Some states have authorized or provide for mediation by ALJ's in these offices. Typically, parties are given the opportunity to request mediation by an ALJ not assigned to hear the case, and rule or policy prohibits the ALJ /mediator from disclosing the content of settlement discussions. For example, Minnesota makes mediation available by ALJ's in its central Offices of Administrative Hearings.
Some states administrative law functions are housed in environmental protection agencies, or in special boards dedicated to hearing appeals from decisions by the environmental agency. New York has one of the best known mediation programs within the agency. Appeals of permitting and enforcement decisions at the New York Department of Environmental Conservation (DEC) are heard by ALJ's in DEC’s Office of Hearings and Mediation Services. Mediation is voluntary and provided at no cost to disputants by ALJ's. Any party, including DEC staff, may decline mediation. DEC’s Office of Hearings and Mediation Services also makes mediators available to assist in resolving disputes in permitting and enforcement matters before the action is appealed. The DEC web site provides a “Guide to Mediation,” and explains the advantages of mediation in resolving environmental permitting and enforcement disputes.
Rhode Island’s Department of Environmental Management (DEM) offers mediation by hearing officers in its Office of Administrative Adjudication(OAA), which hears appeals from permitting and enforcement actions. The hearing officers are all certified mediators. On appeal, OAA offers mediation—at no cost to the parties—in most types of enforcement cases. Mediation is offered after an initial meeting with the parties and after a two-month period during which the department and alleged violator attempt to resolve the case through direct negotiation. If the parties request mediation, a hearing officer not assigned to the case is assigned to mediate. The OAA also offers mediation in cases in which DEM decisions are appealed to Superior Court.
When the Rhode Island program was initiated three years ago, OAA focused on mediation of cases involving freshwater wetlands and septic system violations on appeal to Superior Court. These types of cases usually involve individual homeowners. OAA has found that mediation is especially helpful in cases involving individual homeowners or smaller businesses, while cases involving larger businesses are generally resolved through negotiations with department staff. The OAA has recently expanded its mediation program and now offers mediation in most types of enforcement cases. OAA mediation also is potentially available in contested permitting cases.
Mediation of Administrative Appeals by External Neutrals
In 2001, the Vermont Legislature authorized the Vermont Environmental Board to undertake a three-year pilot program providing mediation services to resolve disputes involving land use permits for certain types of development and subdivisions. (Section 13 of Act 40 of the 2001 Vermont Legislature.) The Legislature authorized expenditure of $25,000 from the Environmental Board Permit Fund for mediation services. The Board contracted with a professional mediator to provide two days of free mediation for referred cases. If the mediation required more than two days, participants were responsible for the cost of continuing the mediation.
The Environmental Board contracted with Bob O’Donnell of the Woodstock Institute for Negotiation to provide both training and mediation services. O’Donnell provided training for the Board and staff, and conducted a number of training sessions for the general public as well as local and statewide organizations that included regional planning commissions and economic development corporations.
To date, seven mediations have been conducted, two involving enforcement actions and five involving applications for land use permits or significant permit amendments. Three cases were successfully resolved through mediation. One permit applicant withdrew the application after mediation. In another case, following mediation the application was modified, and challenges to the application were subsequently withdrawn. In several other cases, the parties withdrew from mediation and continued to litigate.
Michael Zahner, Executive Director of the Environmental Board, said that although the pilot project has been a worthwhile undertaking, “we were not able to make referrals in as large a number of cases as we had expected.” He said the Board found that many permit application cases were either not appropriate for mediation or not all parties agreed to mediate. The Board’s charge requires it to make legal findings under a number of technical environmental criteria, and this charge cannot be abrogated. Zahner noted that a high percentage of enforcement cases that do involve issues with neighbors are successfully negotiated between agency staff and the alleged violator. Mediation, he said, proved most useful in permitting or enforcement cases involving “neighbor issues that involve more subjective review criteria not subject to strict legal and/or technical standards of Act 250.”
Zahner also said the pilot program has made staff more aware of how they can use problem-solving negotiation to resolve a vast number of actions, and how mediation or good communication skills are often the key to resolution. He pointed out that success in resolving disputes often turns on the skill of the individual attorneys representing the various parties.
According to Zahner, the Board has expended less than the $25,000 initially allotted. He said he would like to continue the mediation program, but funds have become very tight. The Board may look to creative ways of providing mediation services, he said, including offering mediation by in-house attorneys.
In Indiana, five agencies signed an MOU in 2000 establishing an inter-agency Shared Neutrals Program. Signatories are the Department of Natural Resources (DNR); the Department of Environmental Management (IDEM); the Natural Resources Commission (NRC)—which hears appeals from certain DNR decisions; the Office of Environmental Adjudication (OEA)— which hears appeals from certain IDEM actions; and the State Emergency Management Agency. Additional state agencies have participated informally in the Shared Neutrals Program during the past year, and participants are exploring the efficacy of revising the MOU to include a significantly expanded membership.
The MOU provides for mediation, as mandated by the General Assembly, in disputes between timber buyers and landowners, and disputes on public freshwater lakes (such as placement of piers and sea walls). It also provides for mediation in a wide range of appeals concerning permitting and enforcement. Neutrals are employees of signatory agencies who are willing to serve as mediators. All are certified. The program was established with consultation and technical assistance from the Indiana Conflict Resolution Institute at Indiana University.
To date, the majority of requests for mediation have come from timber buyer/landowner disputes and riparian disputes. Although parties are urged to consider using a mediator from outside state government, parties have chosen government neutrals in the vast majority of cases.
The Texas Commission on Environmental Quality (CEQ) ADR Program provides for mediation in cases involving contested permit applications. The ADR Program has also mediated enforcement cases. CEQ employs two full-time mediators housed in the General Counsel’s Office. In some cases, the Central State Office of Administrative Hearings provides mediation services. Parties are also advised that they may retain an outside mediator, but must pay the mediator’s fees.
The ADR program was established in 1991 in the agency’s Office of Hearing Examiners. When the hearing function was transferred to a central office, CEQ retained the ADR program, placing it in the Office of General Counsel.
Programs Encouraging Intervention by a Facilitator or Mediator Before Appeal
Pennsylvania’s Department of Environmental Protection (DEP) offers assistance of in-house or outside neutrals for all types of disputes arising from DEP’s work. This program was established in the mid-late 1990s and has been expanded by Jennifer Handke, program director since 1999. The program has a pool of 50 to 60 trained facilitator/mediators, all staff members from DEP programs.
The program has provided facilitators for consensus building and proactive dispute resolution in rulemaking, permitting cases, and in disputes over responsibility for discharges or other environmental problems. The program also provides mediators for disputes that have reached the appeals stage. Program staff have made a concerted effort to train staff in facilitation and mediation processes, and have trained 500 of the Department’s 3000 employees, with a goal of training all. Handke recently met with the managers of DEP's regional offices, which are responsible for permitting and enforcement work, to discuss the mediation services available to them.
The DEP ADR program also provides the option of using outside mediators. DEP currently has two facilitation firms on standing contract. Parties sometimes choose outside facilitators or mediators because of the complexity of a case and/or because of concerns over neutrality. Fees for outside mediators or facilitators are borne by the bureau or regional office involved.
The Pennsylvania program also offers use of attorneys from the Office of General Counsel who have volunteered to act as mediators. In this case, unlike DEP’s ADR Program, parties are asked to pay a fee of $175 for a half-day session. This option is available to disputants involved in litigation with the State.
Florida’s Department of Environmental Protection began using ADR in the late 1980s. They began with a highly successful environmental enforcement mediation pilot involving 14 cases. Larry Morgan, Deputy General Counsel-Civil Enforcement Section, screens all cases for mediation. In Florida, judges regularly refer cases to mediation, which contributes to greater use. Florida’s Environmental Litigation Reform Act was described in PCI’s November E-news.
The Maryland Department of the Environment (MDE) undertook a pilot project to mediate permitting and enforcement actions in 2000-2001, during which MDE participated in mediation of 11 cases. Some were successfully resolved during this process. Bernard Penner, Enforcement and Compliance Coordinator, has taken the lead on the MDR pilot. As a result of this pilot project, MDE staff concluded that mediation is especially appropriate when the permitting process becomes a forum for citizens to attempt to address a variety of issues, some of which are outside of the scope of MDE's authority. It is their sense that it is often in everyone's interest to use mediation to resolve issues outside the scope of the permitting decision so that the more narrow permitting process can address the technical issues it is designed to answer.
In collaboration with the Maryland Mediation and Conflict Resolution Office (MACRO), MDE is working to develop a system for early identification and referral of cases to ADR. A major challenge now is to develop a consistent internal process that will work for compliance and enforcement across the air, water, and waste bureaus of the agency. The concept under consideration is to have cases referred to a central committee within the agency that would determine whether the case is appropriate for ADR (and what form of ADR), locating funds to support an ADR process, and deciding how to make referrals. ADR could involve hiring an outside mediator or facilitator, or they might use a mediator inside state government, e.g., an administrative law judge with mediation training.