Collaborative Ecosystem Governance: Alternative Dispute Resolution is Reforming Environmental Law

By Amanda Fried

I. Introduction

Environmental law is built around a hierarchical structure that ignores regional boundaries.[1]  As a result, environmental protection agencies have reconsidered their policies and debated how to advance protection.[2]  In light of new attitudes toward environmental management, should society implement a new, fresh system?[3]

Collaborative ecosystem governance is an emerging system that will fill the role required for environmental sustainability.[4]  It diverges from the current system of environmental laws in the United States, and communities both within the United States and internationally have implemented it to manage ecosystems.[5] Collaborative ecosystem governance is aiding in the management of the environment, helping to resolve environmental disputes, and increasing the accountability of parties to adhere to their decisions.[6]  The questions are whether it has actually done so, and whether it can truly resolve environmental disputes. Collaborative ecosystem governance specifically is the way forward toward solving environmental disputes, but the process must include the fundamentals of collaborative law to truly become effective.

Part II of this Note provides background for collaborative law and environmental law.  Part IIIA, B, and C explore the relationship of collaborative law and the environment by analyzing collaborative ecosystem governance.  Part IIID delves into the intricacies of collaborative ecosystem governance. This note utilizes the example of the Florida Everglades ecosystem management program throughout in order to illustrate the facets of collaborative ecosystem governance.  This note concludes that decision-makers should adhere to the fundamentals of collaborative law in the environmental law context.

II. Collaboration and the Environment

A. Collaborative Law

Collaborative law is an emerging alternative dispute resolution (ADR)  process that has become increasingly viable throughout the past fifteen years.[7]  Those who practice collaborative law espouse that it is a more civilized alternative to litigation.[8]  At the beginning of a collaborative law process, the lawyers and their clients agree to attempt to use a problem-solving approach to legal negotiation.[9]  The parties negotiate in a “four-way” meeting with both the lawyers and clients for both sides actively participating.[10]  In the collaborative process lawyers represent their clients adherent to the “disqualification provision” in which both parties agree that if either party decides to litigate, the lawyers are removed from the case, and the parties must find new representation.[11]  The parties and their representation are in a “container” free from the threat of litigation.[12]

The agreements that the parties enter into to initiate the process contain the procedure for the collaboration.[13]  In addition to the disqualification provision, the parties operate under the agreement that even the threat of negotiation is not present.[14]  Full disclosure must exist between the parties, requiring parties to reveal relevant information even when the other party does not specifically request it.[15]  The principal benefits of collaborative law are: a faster and cheaper process, better quality settlements, less stress on clients, and less stress on lawyers.[16]  Moreover, the parties communicate to one another at the outset of the process that they are willing to engage in this process fully and with a whole heart simply when they hire an attorney to be a collaborative lawyer.[17]

B. Environmental Law

Environmental law regulates different media with different statutes.[18] The Clean Air Act regulates emissions into the atmosphere.[19]  The Clean Water Act regulates what materials can be discharged into the navigable waters of the United States.[20]  The Comprehensive Environmental Response, Compensation, and Liability Act[21] (CERCLA or Superfund), and the Resource Conservation and Recovery Act[22] (RCRA) regulate the disposal of waste on land.[23]  The Endangered Species Act regulates the interference of human activities with animals that are becoming extinct in order to prevent that occurrence.[24] When Congress passed these environmental laws in the 1970s, most thought that the federal government was the most suitable entity capable of handling large environmental issues because of its size, resources, and resulting capability for expertise.[25]

The goals of environmental legislation are not only to preserve resources and prevent pollution, but to protect human health.[26]  Environmental regulation, moreover, is a response to the failure of the economic or social market to efficiently allocate resources while maintaining and preserving the natural environment.[27] The goal of environmental regulation is to increase polluters’ costs so they will decrease the amount of pollution they emit into the air and water, and onto land.[28]  The structure used to attain that goal is a top-down hierarchy beginning with the federal government.[29]

Though the current environmental law system is pragmatically premised upon a national point of view in order to regulate effectively, another focus would be more effective.[30]  A criticism of the current regulatory regime is that it focuses on the smaller problems while leaving the larger issues unregulated.[31]  Public participation in the national decision-making process is minimal, critics of the environmental regime argue, so the federal government is not the optimal environmental regulatory body.[32]

III. Collaborative Ecosystem Governance

A. The Florida Everglades

Responding to institutional dilemmas, stakeholders have started to collaborate on policy and management actions, so collaborative ecosystem governance is now a reality.[33]  For example, in the Florida Everglades, the Comprehensive Everglades Restoration Plan (CERP) is a joint effort between federal and state governments that focuses on water management.[34] Congress mandated a review of the water usage, and the Corps of Engineers recommended how to conserve water in the Everglades National Park and Loxahatchee National Wildlife Refuge.[35]  Congress additionally charged the Corps of Engineers with learning how to provide more water to South Floridians.[36] The restoration effort that arose from these recommendations consists of federal, state, local, and tribal representatives.[37]  The advisory structure of the Plan, which influences planning and decision-making also focuses both on science and stakeholders.[38]

The second formal mechanism for involving science into the restoration efforts is the REstoration COordination VERification Team (RECOVER), which has mission that is narrowly tailored to the CERP.[39]  RECOVER is monitoring the progress of the CERP, and will use scientific analysis to issue technical reports about the performance of the ecosystem.[40]  This Note utilizes the example of the Florida Everglades to analyze collaborative ecosystem governance.

B. Ecosystems are Dynamic

The theory behind collaborative ecosystem governance relies upon changing the underlying assumptions of the basis of environmental law and management.[41]  The environmental laws in the United States are based upon single resources such as water, land, and air instead of being based upon an entire ecosystem, regardless of its resources.[42]  Environmental law does not embrace the fact that ecosystems are dynamic, changing structures.[43]  Though the notion that society should protect biodiversity is exemplified through laws such as the Endangered Species Act, statutes have yet to address the holistic nature of ecosystems.[44]  As a result, the statutes in place create a piecemeal system that does not inherently protect ecosystems.[45]

Ecosystems are complex, dynamic systems, and the effects of human actions can be surprising and pervasive.[46]  Ecosystems involve the interactions of many factors including plant life, wildlife, water, and climate.[47]  Humans influence and dominate most ecosystems, and their influences interact with the ecosystem in unexpected and complicated ways.[48]  For example, in response to a hurricane in the 1940s that resulted in flooding, the Corps of Engineers built levees to drain the area which has reduced the Everglades by seventy per cent.[49]  The multiple uses humans impose on ecosystems interact with their dynamic nature.[50]

The Florida Everglades is the most hydrologically controlled region in the country, but controlling the water flows has destroyed marine fisheries and breeding grounds, and contamination from salt water threatens the water supply.[51]  The ecosystem as a complex system is integral for effective environmental regulation as a result of these complex and dynamic interactions.[52]  Because of the dynamism of ecosystems and humans’ effects on them, they cannot be managed in isolation, and uniform standards of regulation will not suffice.[53]  Ecosystems’ local characteristics necessitate “context-sensitive management.”[54]  Additionally, laws protecting the environment were evaluated only once and no one has systematically re-examined them to determine whether they ought to be changed.[55]

C. Adaptive Management

The dynamic nature of ecosystems spawned a new theory: adaptive and holistic management.[56]  Adaptive management is a mismatch with current environmental structures because it does not regulate resources in isolation of each other.[57]  Reliance on one sector of society will not suffice either, and all relevant sectors must work together to manage an ecosystem.[58]  Recent trends show that the environmental dispute resolution system is moving from one that is piecemeal and isolated to a regional, integrative, and collaborative system of environmental management.[59]

Adaptive management builds upon the notion that ecosystems are dynamic and require changing regulations as opposed to other regulated entities that are more static.[60]  Because of the uncertainty surrounding the information about ecosystems, mid-course adjustments are necessary during management.[61] Instead of an optimal, fixed rule provided by a centralized authority, adaptive management seeks to treat rules as provisional while scientists and environmentalists continue to search for new information.[62]  Regulated organizations would then be able to identify and implement more effective methods of attaining environmental goals because the goals would be tailored to the needs of the ecosystem at that time rather than, for example, thirty years ago.[63]  The environment requires a “rolling rule,” where there can be rapid adjustment to a change in the ecosystem or analysis of the ecosystem based on new information.[64] All decisions are provisional and await updated information.[65]

Adaptive management requires “generating a continuous stream of high-quality, policy-relevant, locally-situated ecosystem science that at each successive stage refines and challenges the scientific hypotheses, theories, and assumptions upon which previous rounds of policy-making had been based.”[66]  Agencies must have greater discretion to change their policies when based on negotiation or the refining of problems.[67]  Though rules based on adaptive management are still judicially reviewable, courts should be more deferential to collaborative decisions.[68]

The basic cycle of adaptive management is to experiment and gather data, institute policies that are provisional, and change the policies if new information is gathered during experimentation that would affect the policies.[69]  Because all environmental knowledge about management that society has gathered is information-starved, an adaptive system can help by leaving policies open to change upon the gathering of new information.[70]

The theory of managing ecosystems relies instead upon knowledge that the whole is greater than its parts, and piecemeal management will not effectively manage that whole.[71]  Adaptive management can be implemented differently in each situation to which it is applied.[72]  The interdependencies are such that everything affects everything else, so the management of one component must exist in the context of all the others.[73]  Humility in the face of the dynamic systems is important to ecosystem management, and the knowledge that one is operating at a constant information deficit informs the process.[74]  The CERP in the Florida Everglades has implemented adaptive management by utilizing peer review to review the scientific analysis to determine whether a change in policy is necessary.[75]  Unfortunately, despite the fact that the peer review system is crucial to the scientific integrity of the project, the system has been plagued with bureaucratic problems that threaten the independence of the peer review board.[76]

D. Collaborative Ecosystem Governance Defined

Collaborative ecosystem governance “can be defined as a group of diverse stakeholders, including resource users and government agencies, working together to resolve shared dilemmas.”[77]  The process employs relevant actors to create policies that preserve and benefit an entire ecosystem while continuing to promote commerce and development.[78] Various relevant actors include Intergovernmental Organizations (IGOs), Non-governmental Organizations (NGOs), industry, government at the federal, state, and local levels, individual landowners, and other interested groups such as conservationists or environmental advocates.[79]  Industrial actors will participate in collaborative efforts because of the publicity surrounding major industrial accidents, the pressure exerted by environmental advocacy groups and consumers, the loss of business to more environmentally-aware competition, costly regulations, criminalized environmental laws, the liability of company officers, insurance coverage, and “equity market focus on environmental metrics.”[80]  These factors are incentives for industry to participate in collaborative ecosystem management and to implement environmental dispute resolution procedures in the beginning planning stages of their specific projects.[81]

The process of collaborative ecosystem governance is based upon the notion that putting people together with the capacity for information-sharing will forge the ability to find effective solutions to their disputes.[82]  “As information is exchanged, it becomes part of a shared knowledge base necessary for problem-solving that is ‘owned’ by all the members of the collaborative group.”[83]  Information-sharing lowers costs by preventing pollution through synthesis of all available information to gauge whether regulations are actually effective.[84] The same problem that pervades throughout environmental law exists in the context of information-sharing—that environmental law statutes are divided into distinct regulated areas.[85]  Regulators do not have efficient access to the cumulative effect of actions on the environment because environmental law is segmented into these separate regulated areas.[86]  No single entity, then, has a proficient grasp of the interactions of all of the different media and the laws that regulate them.[87]

1. Benefits of Collaborative Ecosystem Governance

There are many benefits to the collaborative approach and certainly warrant a trial of the process.[88]  It promotes innovation and the free flow of information, resource-deficient interests are better represented, and the flexible policies make it easier to adapt to changed circumstances.[89] Additionally, it increases satisfaction with the decision-making process, enhances compliance with regulations, and promotes future participation.[90] It also promotes long-term cost reduction and creates better law.[91] Additionally, the approach promotes better environmental protection while also promoting a quicker approval of development projects that are more environmentally sound.[92]  Finally, the process can restore trust in governmental institutions.[93]

Collaborative ecosystem governance “is not a purely interest-driven approach that can allow natural resources or certain interests to be exploited.  It recognizes the need to ground decision making and management in good science but understands that technical factors are only one of many important considerations in making wise public choices”[94]   Thus, all of the actors come together to share interests and determine the best course of action for environmental management based not only on environmental health, but also on commerce and other interests.[95]  Especially in these tight economic times, the government can utilize more efficient processes of regulation to produce greater economic progress.[96]

2. Challenges of Collaborative Ecosystem Governance

Collaboration is challenging in any dispute because it necessarily involves with complex human relationships.[97]  Because competition is generally the more rational mindset, cooperative behavior is difficult to foster.[98]  An ecosystem-wide approach forces together those entities that are prone to disagreement, so achieving goals harmoniously is complicated.[99]

Institutional structures are also barriers to collaboration because of a lack of opportunity to collaborate, and often the goals and missions of different actors are divergent.[100]  Constituent education and consensus-building are difficult hurdles for the CERP specifically.[101]  The process of collaboration is also problematic because parties are unfamiliar with the collaborative process.[102]  For example, meetings must be run efficiently with so many parties involved, and deadlines should be flexible in case one aspect takes longer than anticipated.[103]

E. Components of Collaborative Ecosystem Governance

Collaborative efforts, such as the CERP in the Florida Everglades, begin with a collaborative agreement about the goals and basic program rules, as is the requirement for collaborative law.[104]  If economic development and environmental protection are not mutually exclusive, actors and stakeholders can work together to create a collaborative system of governance of the environment.[105]  Adopting the perspective that conflict management and dispute resolution are beneficial rather than costly to stakeholders allows them to view those processes as opportunities for creativity, finding solutions, and improving relationships.[106]  The ecosystem approach has not and will not eradicate all environmental disputes, clean up the earth, or stop industrial pollution, but it has changed the framework so that populations are viewed as having common concerns.[107]

1. Actors vs. Stakeholders

The actors that currently shape the non-collaborative system of environmental management are limited because the capabilities of the institutions that currently shape the system do not fit the demands of ecosystem management.[108]  First, individual landowners (proprietary rights- holders) are incapable of serving as a unit of ecosystem management because of the small size of parcels, especially in comparison to the large size of federal holdings.[109]  Thus, individual landowners could not, even if they wanted to, implement ecosystem management on their lands without the cooperation of other surrounding parcels.[110]  Purely voluntary management would be fraught with typical problems such as free riders, organization, information, and coordination among many parties.[111]  Second, local governments are inadequate because they are too small.[112]

Third, state governments are inadequate because their territorial boundaries can be both over- and under-inclusive.[113]  They are under-inclusive because they can be only a part of an ecosystem, such as Maryland is to the Chesapeake Bay.[114]  States then must work together with the inherent problems associated with state cooperation.[115] They can be over-inclusive, such as California which claims to have ten bioregions within it, leading to decisions about where to focus resources and where to subdivide.[116]  State autonomy can be negative for ecosystem management because of states’ self-interested policies and the problems of state coordination.[117]  In spite of this limitation, states have progressed to regulating many environmental issues including climate change and the degradation of the oceans.[118]

Finally, the federal government, though it has the most resources, is ill-suited for ecosystem management because it is too large and too remote.[119]  The CERP is a joint federal-state restoration endeavor, meaning that they share equally the costs of construction, management, and operation of the project.[120]  The state of Florida and the federal government, though, disagree as to the benefits that will be derived from restoration of the area.[121]

The above-mentioned actors are those that have the ability in the fixed environmental law system to affect laws by setting policies and regulations.[122]  In the Florida Everglades, the conflict that can exist between actors is apparent.[123]  The Corps of Engineers, the National Park Service, and the Fish and Wildlife Service have rivalries with each other concerning territory as well as culture.[124] Stakeholders are also integrally involved with the region.[125]

Stakeholders, in contrast to actors, are those who have a vested interest in the process, and therefore should be parties to the decision-making process.[126]  Since stakeholders have legal and political interests in environmental dispute resolution and collaborative processes without the ability to affect the change they seek, they often advance their interests by influencing or disrupting the process.[127] Nongovernmental organizations (NGOs), for example, can facilitate cooperation and goodwill among the parties, especially when the NGO has particular expertise in the area being regulated.[128] NGOs also have access to the same information as government agencies that can be more accessible and even more accurate.[129]

In the Florida Everglades, the Micosukkee tribe has filed many lawsuits against the other participants in the process.[130]  Allowing all with a stake to participate is based on comparative advantage—the entity with the greatest possible chance of success should regulate.[131] If these stakeholders do not participate, the process will be severely disadvantaged.[132]  Further, the entities should work collaboratively to solve disputes and enforce regulations.[133]  An example is when the Governor’s Commission for a Sustainable Florida in the 1990s helped forge agreements that led to support of the Corps of Engineers’ plan as well as the support of the legislation creating the CERP.[134]

2. An Environmental Dispute Generally

“Environmental disputes…can be resolved without resort to litigation if tackled early enough and with the right resources.”[135] Environmental disputes are generally transcendent of political, professional, and geographical boundaries.[136] As transnational businesses increasingly use environmental performance as an indicator of quality, their participation is crucial to resolving environmental disputes.[137]  Solutions to disputes are outside the scope of what the judiciary can solve because of the varying actors and necessity to create broad public policy.[138]  Alternative dispute resolution is advantageous for developing solutions that are not within the scope of judicial resolution, and environmental dispute resolution offers the same benefit.[139]

Environmental problems are so complex that the competition for resources such as water have led to outright conflict in certain regions.[140]  The relationship between the United States and Canada managing the Great Lakes has created a “depoliticized forum for discussing and resolving…differences”[141]  The role of information is crucial in this relationship.[142]  The parties engage in routine reporting, which has increased parties’ accountability for their actions, created a forum for discussion, and given more information to the public.[143]  Both NGOs and industry have participated and help with the regime.[144]  In fact, “[a] strong and diverse nongovernmental community developed as a result of the formal structures, and the formal structures have been energized and legitimized because of the continuing active involvement of that community.”[145] The resolution of environmental disputes involves collaborative efforts to resolve a certain conflict.[146]  Third parties can be effective in helping the disputants to resolve their differences, and more formal processes can be tailored to specific environmental disputes as well.[147]  The use of an independent, bi-national system where the parties have equal footing is indicative of a collaborative system.[148]

3.  Collaborative Structures

In the Florida Everglades, the South Florida Ecosystem Restoration Task Force facilitates the overall restoration process.[149]  The CERP has in place an advisory structure that focuses on stakeholder input, science, planning, and decision-making.[150]  The Task Force, though, does not have the influence that the Governor’s Commission did because it is a coalition of fourteen governmental entities that is not equipped as a forum for the discussion of differing perspectives.[151]  Additionally, the RECOVER program includes different agencies and disciplines into the decision-making process by allowing them to develop monitoring mechanisms as well as evaluation techniques.[152]

Programmatic regulations establish interim substantive goals for the program, and they also created the independent science review panel discussed above.[153]  Different “bands” track when projects should be completed, and the first goal is to increase the region’s freshwater supply and to increase the flow of water to natural areas.[154]  There are monthly updates on the progress of the efforts.[155] 

There are, however, conflicts in the region as well concerning the CERP.[156]  The implementation of two projects that are crucial to the progress of water delivery have been stalled by litigation and controversy.[157]  The restoration effort is also “criticized for being over-budget, behind schedule, and off track.”[158]  Finally, adaptive management is difficult to implement in practice because integrating science into management decisions enters more obstacles into the process.[159]

IV. Conclusion

If collaborative ecosystem governance is going to continue to grow as the mechanism to reform environmental law, it must incorporate more fundamental collaborative law principles.[160]  By calling the process collaborative while ignoring norms of collaborative law, the process can become de-legitimized.[161]  In the Florida Everglades there is no agreement not to litigate, and in fact there has been much litigation concerning the CERP.[162] In order to become a true ADR process, collaborative ecosystem governance must employ the process aspects of collaborative law.

In fact, many of the failings of the CERP in the Florida Everglades results from inadequate delineation of power, and an uncertainty surrounding accountability and monitoring.[163]  Calling the process collaborative when the government still holds the true power is contrary to the theory of collaborative law, and needs to be addressed by the managers of ecosystem projects.[164]

Many challenges face the incorporation of true collaborative law into the environmental context.[165]  Primarily, there are so many parties to an environmental project or dispute that it would be difficult to foreclose them from litigation.  These parties have so little power that the first step could not be the container agreement.[166]  The parties need more decision-making authority, rather than simply an input role.[167]  This is unlikely, though, because the government will probably not allow their power to recede so easily.[168]  Additionally, the government is accountable to a voting constituency while various stakeholders are not, thereby counter-intuitively making the process less democratic.[169]

The managers of collaborative ecosystem governance programs should begin to incorporate more formal mechanisms of collaborative law in order to become a more viable ADR process.[170] Only then will the programs be enabled to be true collaborative efforts with actors and stakeholders making decisions together that are beneficial for the environment.  True collaboration has proven to be elusive in the environmental context,[171] and the environment deserves all voices to be heard when its fate hangs in the balance.