Environmental compliance and litigation involve an alphabet soup of agencies and laws. Regardless of the scheme, the overarching policies for addressing violations are the same: assess contamination, restore, and compensate. While all go about addressing these issues in different ways using different terms, most will address these issues at a minimum. And all are ripe for mediation.
Mediation is simply a process to facilitate negotiations. While many think of mediation in the context of resolving a civil action, any dispute can benefit from mediation.
A skilled mediator knowledgeable of the issues involved can help the parties identify potential resolutions which address the interests of all involved. Many environmental statutes and regulations are quite detailed on the conduct they proscribe, but they are not so specific on how they might be resolved. This is fertile ground for negotiated resolutions and thus for mediation.
The more issues on which the parties can agree, the more streamlined any future litigation may become. A dispute at any stage of the environmental violation is usually yet another basis for arguing in court later.
Therefore, it is often in the interest of everyone to reach an agreement when possible. For example, after a violation (say, a spill or a leak) occurs, the extent of the contamination must be ascertained. In order to determine the extent of the contamination, the quantifiable presence of the discharged substance which was already present in the affected environment must be determined. There are often many different means of measuring the extent of contamination including the pre-existing background amount. Rather than sitting back and taking shots at the other for how the assessment was done, it might behoove both parties to have discussions about how they might agree to do the assessment. Or, at a minimum, how they might share the raw data generated by their efforts.
Whatever was discharged, emitted, or leaked will also need to be cleaned and removed, if possible. Another fertile field for negotiating an agreement is the clean-up or restoration methodology.
Once clean-up has been accomplished, further restoration efforts may be needed to restore the affected land, water, or air to its pre-discharge state. Given the proliferation of science and engineering efforts dedicated to the restoration of the environment in recent years, there is often more than one way to peel this potato. A mediator knowledgeable of the case, or at least the type of case, can help the parties work toward an agreement at this stage, as well.
Even after restoration efforts, most statutory schemes make some accommodation for damages, whether while the natural resource was being restored or to the extent that the restoration efforts are not or cannot effectively restore what was damaged to its pre-contamination state. Again, a negotiated agreement is usually in everyone’s best interest. It’s faster, cheaper, more certain, and often more effective.