Using Environmental Conflict Resolution in Natural Resource Damage Assessments

Working through conflicts involves a range of Environmental Conflict Resolution (ECR) methods. Unlike traditional litigation, in which a judge or jury determines recoverable damages, alternative methods of assisted negotiation — such as facilitation, mediation, and conflict assessment — allows stakeholders to reach a mutually satisfactory agreement without judicial intervention.

ECR saves time and avoids traditional legal costs. And, as an additional value –added result: stakeholders working toward a shared, positive outcome can often achieve more mutually agreeable results than they would have received in court.

The information provided here is meant as a starting point for natural resource trustees to consider how ECR may be used in a Natural Resource Damage Assessment (NRDA). NOAA encourages you to learn as much as possible about ECR in the hope of enhancing negotiations and decision making in NRDA. More information available from EPA .

Environmental Conflict Resolution
On November 28, 2005, Joshua Bolten, Director of the Office of Management and Budget (OMB), and James Connaughton, Chairman of the President's Council on Environmental Quality (CEQ), issued a policy memorandum on Environmental Conflict Resolution (ECR). This Joint Policy Statement directs agencies to increase the effective use of ECR and their institutional capacity for collaborative problem solving. It includes a definition of ECR and sets forth "Basic Principles for Agency Engagement in Environmental Conflict Resolution and Collaborative Problem Solving". It also includes a compilation of mechanisms and strategies that may be used to achieve the stated policy objectives.

Finding a Mediator or Facilitator
A neutral third party, such as a mediator or facilitator, can often be helpful in preventing and resolving conflict. Neutral third parties play a variety of roles, including facilitating discussions, providing parties with a "reality check" on the merits and value of their claims, assisting with creative problem solving, and writing agreements that reflect the needs of the parties.

A list of potential sources for neutral third parties is provided below for informational purposes.

• National Roster of Environmental Dispute Resolution and Consensus Building Professionals

  The National Roster of Environmental Dispute Resolution and Consensus Building Professionals is a source of information for identifying neutral third parties and matching them to appropriate disputes. The U.S. Institute for Environmental Conflict Resolution and U.S. EPA jointly designed and initiated the Roster. The Roster is continuously open and contains information on many individuals who have met the qualifications with regard to experience in managing environmental disputes.

• EPA Conflict Prevention and Resolution Services Contract

  All EPA headquarters, regional, and field offices can use this contract to obtain expert services in conflict or issues assessment, public participation or stakeholder involvement activities, consensus building, and collaborative processes, and alternative dispute resolution processes. This contract mechanism may possibly benefit trustee interests when integrating restoration and remedial processes.

• Native Dispute Resolution Network

  The Native Dispute Resolution Network is a developing resource for those seeking assistance from a collaborative conflict resolution practitioner where American Indian, Alaska Native, or Native Hawaiian people and environmental, natural resources, or public/trust lands (including cultural property and sacred sites) issues are involved.

• Non-Competitive Procurement of Neutral Third Parties

  The Administrative Dispute Resolution Act of 1996 and the Federal Acquisition Regulations allow Federal agencies to use other than full competitive procedures to procure the services of an expert or neutral third party for use in alternative dispute resolutions processes. This option can be less burdensome and time-consuming when parties are interested in the acquiring the services of a specific neutral third party, but is only available for small purchases.

Useful ECR Links

• U.S. Institute of Environmental Conflict Resolution
• U.S. EPA Conflict Prevention and Resolution Center
• U.S. Department of Justice Office of Dispute Resolution

• Administrative Dispute Resolution Act of 1996 , Public Law 104-320.
• Alternative Dispute Resolution Act of 1998.
• Civil Justice Reform, Executive Order 12988, February 5, 1996.
• Collaborative Problem Solving through Environmental Conflict Resolution. Developed by the U.S. Institute for Environment Conflict Resolution by the Morris. K. Udall Foundation.
• Facilitation of Cooperative Conservation, Executive Order 13352, August 26, 2004.
• Memorandum on Environmental Conflict Resolution, from the Office of Management and Budget and the  President's Council on Environmental Quality.
• Memorandum on Agency Use of Alternative Means of Dispute Resolution and Negotiated Rulemaking, May 1, 1998.  Memorandum for Heads of Executive Department and Agencies.
• Negotiated Rulemaking Act of 1996, Public Law 104-320.