Building Consensus in Environmental Decision-Making

1. Building Consensus in Environmental Decision-Making • Revisit Human Nature and Need for Cooperative Context • Revisit the Regulatory Process and its Impediment to Cooperation • Shift the Institutional Context of Decision-Making and Policy Implementation • Create Public/Private Opportunity for Cooperative Behavior

2. Human Nature and Conflict • Conflict is normal and arises out of the perception of threat • The purpose of conflict is change • True conflict resolution requires • Meeting human emotional needs first • Rational analysis of problem • Separating solutions from deciding • Assurance of durable resolution

3. Cooperation is a Function of Human Nature • Emotional Needs First • Need for control • Need to be heard • Need to be validated • Need for fairness • Intellectual Process Second • Fair process of analysis • Objective criteria • Dispassionate review of options • Realistic assessment of options

4. Cooperation and Human Behavior

5. Regulatory Governance • Created to: • Be self-executing • Create certainty and uniformity • Eliminate irrationality and discretion • Create transparency • Promote public participation • Create respect for law • Foster cooperation

6. Regulatory Result • Rational rule-making has failed to meet goals because: • Based on rationalist fallacy of reasonable man • Focuses on certainty of rule not flexibility in solution • Discretion is critical for responsibility and rationality • Too many rules leads to opaque process and experts • Public participation is adversarial • Disrespect results from inflexible focus on rules • Cooperation is difficult

7. Alternative to Regulatory Governance • Shift context of regulation to problem-solving • Govern by general principle • Abandon rule making • Give regulators discretion • Create culture of public servant • Measure results • Foster cooperative process • Punish gross negligence, intentional and criminal acts only

8. Alternative Continued… • Change the Dispute Resolution Process • Use facilitative process early in process • Focus on environmental problem and solution • Where impasse make decision on science not rules • Appeals should be heard by special referee with limited discovery and formality • Hearings should be investigational rather than adversarial

9. Alternative Continued… • Evidentiary rules should be relaxed • Judicial Review Standard should be arbitrary and capricious • Decisions should create administrative common law • Investigational process should diminish attorney role. Losers pay (with consideration)

10. Public/Private Cooperation • Special Board(s) to review policy issues and solution • Public input should be focused on solutions not regulations • Agency public/private think tanks • Face to face negotiations – Reduce e-mails and non-personal problem-solving • Change public hearing format • Give regulator and regulated discretion and responsibility