Building consensus in environmental decision making
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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

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Building Consensus in Environmental Decision-Making

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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


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


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


Cooperation and Human Behavior


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


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


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


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


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)


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


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