Institutionalizing Negotiation

1. Institutionalizing Negotiation Chapter 12 Lyneida Meléndez

2. Proposals to institutionalize environmental negotiation • Attempt to remove procedural obstacles to consensual agreement • Seeking to avoid or anticipate conflict • Mandate negotiation in specific situations • Create atmosphere of consensual agreement through incentives

3. Removing ProceduralObstacles • Bargaining under the shadow of the law = solving cases in trial • Imposing waiting periods = create time to encourage reconciliation of differences/settlement • Ex. Submitting claims to nonbinding arbitration before trial • Susskind & Weinstein: judges should be more involved

4. appoint mediators supervise bargaining process determine who gets admitted Should enforce environmental laws May be accused of catering to those it should be regulating Scared of offending influential officials Lessened role in the bargaining process “Scapegoat” complex because of high “visibility” Judges & Agencies

5. Conflict Anticipation • Conflict avoidance, anticipation, management • Goal: create a solution environment before the problem arises Problems: • Unless problem is ripened, there is no way to assess potential benefits/risks • Avoids the blessings of conflict (galvanizes community, affect public agenda) • Gives time for powerful parties to influence own interests during bargaining process

6. Mandatory NegotiationCase Study: Montana Power Company vs. Cheyenne Indian Reservationpg. 330 • Section 164 (e) of 1977 Clean Air Act Amendment: American Indian tribes have right to negotiate and resolve disputes over air quality that affect their lands • Class I: Very small tolerance for pollution • Class II: Moderate tolerance

7. Wants to add (2) 700 megawatt coal-fired electric power plants 20 miles north of the reservation EPA issued PSD permit for Montana with imposed conditions Had to abide by Montana State Siting Board: consider socioeconomic impacts: pollution control, jobs, training, community relations Threaten landscape and natural environment Use section 164c/e to bargain for job creation Redesigned their area from Class II to Class I: discourage opposition 1980: N. Cheyenne agreed: got jobs, compensation for air pollution monitoring costs, scholarships, ect. Montana Power vs. Cheyenne Indian 1973-1980

8. EPA initiated and coordinated negotiations Invited only representatives from both sides Open discussion just for priorities = narrow agenda = little bargaining throughout years= lack of shared understanding Announced PSD permit = less incentive to settle on their own Formal, legalistic EPA approach, discouraged interaction between parties Parties where represented by lawyers = competing interests EPA authority affected negotiation environment No coordimation between Montana, Cheyenne, and EPA’s expectations (Cheyenne: more control over their environment/Montana: designed great plant, so what is the problem?/EPA: federal power not congruent to local needs) EPA involvement Montana vs. Cheyenne

9. Good Faith Bargaining pg. 337 • Defined as “mutual obligation of the employer and representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and contitions of employment” (National Labor Relations Act) BUT • Cannot control party's exercising their economic power over others • Cannot control people’s minds • Refusing to meet is illegal, delaying is not

10. “Boulwereism” • Presenting a firm package at the outset. Company has calculated the best offer it can make, and presents it “why waste time on less attractive proposals?” • Violates collective bargaining because it undermines consequences of a mutual search for favorable outcome/agreement

11. Negotiation Through Incentives Case Study: Massachusetts Hazardous Waste Facility Siting Act 1- With permits and agreement of hosting community developer has right to construct in industrial zoned land 2-Community cant be picky with waste facilities unless they prove it is hazardous to their wellbeing 3- State provides technical assistance to encourage siting process and negotiation 4- Deadlocks submitted to arbitration 5- Compensation to abutting communities that may be affected by facilities

12. The process • Oversight by: Department of Environmental Management + Department of Environmental Quality Engineering and Hazardous Waste Facilities Site Safety Council (21 members representing all parties involved and affected) • NOI: Notice of Intent filled out by developer, 15 days to be reviewed by council = filtering process • 30 days: LAC: Local Assessment Committee representing host community, led by mayor • Negotiations begins between LAC & developer to create a siting agreement • If no agreement it goes to “final and binding arbitration”

13. Process cont… • Developer gets state and local permits, usually only local board of health permit • Permit states that facility will not impose greater danger than already present in area • Project cannot be subverted by rezoning land • If council approves, developer prepares final impact report with all comments, responses, siting agreement, data • Abutting communities can be involved, can bargain compensation

14. Negotiation and Compensation • “Without common interests, there is nothing to negotiate for, and without conflicting interests there is nothing to negotiate about.” (Harper & Row, 1976, p.2) • Compensation should be large enough so that recipients are better off than status quo • Benefits are distributed regionally and social costs concentrated locally, so benefits for local community has to outweigh their costs • Compensation is not a bribe • Different people, different tolerance levels • Environmental quality may not be worth the money (irreversible damage) • Human health is above profit • Collective bargaining increases negotiation complexity