A number of recent developments in the Federal government will have a profound effect
on the manner in which many environmental cases will be handled in the future. Among those
developments are:
On February 5, President Clinton signed Executive Order No. 12988, mandating reforms for
civil cases to which the government is a party. Government attorneys must now consider
whether each case is suitable for use of an alternative dispute resolution (ADR)
technique, and if so, to propose using such technique(s) to the opposing parties. This
obligation is on-going during the life of the case.
Attorney General Reno has established an office at the Department of Justice to promote
and oversee the development and use of ADR by the government. That office is now training
government trial attorneys in the various types of ADR, and developing criteria for the
selection of cases that may be particularly well-suited for application of ADR techniques.
Those criteria will be issued to the public soon.
The U.S. Environmental Protection Agency has also established an ADR office to encourage
the use of those techniques by EPA and its regulated community. EPA, which has been
experimenting with ADR pilot programs for several years, is now one of the most advanced
of the major federal agencies in the use of those procedures.
The budget cuts to which EPA has been and will continue to be subjected will impair its
ability to conduct enforcement as in the past, and will drive the use of less
resource-intensive and less time- consuming ADR procedures for many of the more
“routine” cases.
Any reauthorization of Superfund is likely to include mandatory arbitration of
allocation of responsibility.
These developments are particularly significant to companies who may be the object of a
government environmental enforcement action. In the past, defendants in environmental
cases have proposed the use of mediation or arbitration to the government, but have been
met with institutional and bureaucratic resistance. With these developments, that
resistance should soften, if not change to an attitude of willingness to consider the
nomination of a case for ADR by private parties.
The use of ADR procedures — long used in many other fields — is rapidly gaining acceptance in the environmental area. Many groups of potentially responsible parties at Superfund sites are already turning to mediators to assist in achieving allocation agreements. This trend that will undoubtedly accelerate in the future as corporate counsel seek ways to resolve their environmental problems more cost-effectively.
Environmental cases are particularly well-suited for the use of mediation, arbitration, fact-finding, mini-trials or other ADR procedures. These cases are factually complex and highly technical, or both, but many of the threshold legal issues have now been resolved, resulting in less need for judicial involvement. Properly used, ADR can resolve many such cases more quickly, with less expense and stress, than through formal litigation.
Venable’s Alternative Dispute Resolution Practice Group includes an attorney who has represented the U.S. EPA and a state environmental agency as well as numerous industrial clients, has served as a judge, and who brings a balanced perspective as a third- party neutral to the resolution of disputes.
The use of ADR procedures — long used in many other fields — is rapidly gaining acceptance in the environmental area. Many groups of potentially responsible parties at Superfund sites are already turning to mediators to assist in achieving allocation agreements. This trend that will undoubtedly accelerate in the future as corporate counsel seek ways to resolve their environmental problems more cost-effectively.
Environmental cases are particularly well-suited for the use of mediation, arbitration, fact-finding, mini-trials or other ADR procedures. These cases are factually complex and highly technical, or both, but many of the threshold legal issues have now been resolved, resulting in less need for judicial involvement. Properly used, ADR can resolve many such cases more quickly, with less expense and stress, than through formal litigation.
Venable’s Alternative Dispute Resolution Practice Group includes an attorney who has represented the U.S. EPA and a state environmental agency as well as numerous industrial clients, has served as a judge, and who brings a balanced perspective as a third- party neutral to the resolution of disputes.