NCJ Number
118369
Journal
Columbia Journal of Environmental Law Volume: 14 Issue: 1 Dated: (1989) Pages: 157-185
Date Published
1989
Length
29 pages
Annotation
The application of techniques of alternative dispute resolution (ADR) as an alternative to litigation is appropriate in environmental disputes because environmental litigation is likely to be complex, protracted and expensive.
Abstract
Environmental disputes have been previously mediated in the fields of land use, natural resource management, water resources, energy, air quality, and toxins. ADR has been used with varying degrees of success in policy-making, standard setting, the determination of development choices, and in the enforcement of environmental standards. In negotiated rule-making, a great deal depends on the participants, the negotiating style, the perception of the agency's position by interested parties, and other aspects of the process. The matter of consent decrees and settlement of cleanup obligations under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is only partially a matter for ADR because the consent decree or settlement is the result of earlier enforcement litigation which has defined and limited the areas for agreement and settlement. Recurring problems of ADR are that it is a private rather than public process; there is question of whether a negotiated rule carries the same judicial deference as does an agency-made rule; the fact that the function of the regular administrative agencies has been displaced; and although usually legally enforceable, it is not a process which contains the attributes of legal decisionmaking. 81 notes.