Policy Consensus E-News — November 2003

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Innovative Florida Law Provides for Environmental Mediation

The Florida legislature recently enacted the Environmental Litigation Reform Act [ELRA, 403.121(2)F.S.], which overhauls the lengthy judicial enforcement process for resolving less serious environmental violations.

The legislation makes Florida the first state in the Southeast, and seventh in the country, to establish comprehensive administrative penalty authority and reference to Administrative Law Judges for resolving environmental violations. The law includes a process—the first of its kind—to pay for mediation as an alternative to administrative hearings, with funds from penalties collected from environmental violations.

Developed by the Florida Department of Environmental Protection (DEP) based on its past successful experience in mediating enforcement cases, the new law allows DEP to address enforcement actions with penalties sought of less than $10,000 through administrative proceedings instead of traditional circuit court proceedings. The law also establishes a mechanism for mediation at no cost to the Respondent, and authorizes the Florida Conflict Resolution Consortium (FCRC) to coordinate mediator selection and payment. Mediation usually enables the party subject to an enforcement action, the DEP, and possibly others to reach a satisfactory settlement agreement more quickly and with lower costs than proceeding to administrative hearing or going to court.

In environmental enforcement cases mediation has been shown to provide an opportunity for the respondent and DEP to:

• Talk constructively about what they want to achieve in a settlement;
• Consider the constraints and challenges the parties face in reaching agreement;
• Explore a range of creative solutions that may address the legal and other issues;
• Shape a consent order that best addresses the environmental impacts and both the respondent's and the DEP’s interests.

Compared to going to administrative hearing or court, mediation often results in:

• Reaching settlements sooner;
• Spending less time and resources in reaching a settlement;
• A better solution for the Respondent, the agency, and the environment;
• Improved relations between the DEP, the respondent, and the public.

It is anticipated that mediation will be appropriate in most ELRA enforcement cases. Mediation may not be appropriate in cases where a precedent is sought by one or both parties or when the only issue is a difference in interpretation of the law that may only be resolved by an administrative law judge opinion.

For more information, visit the Florida Conflict Resolution Consortium on line, or e-mail the Consortium.

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What’s Next For State DR Programs?

Bill Potapchuk of the Community Building Institute proposes three alternative visions for the future of state DR programs. Facing budget cutbacks, increased privatization of public services, more outcomes-based funding, and growing experimentation with market-based approaches, DR programs may want to consider the following, Potapchuk says:

1. Do more of the same – Shore up support and continue providing high quality mediation and training services.
2. Consider the analogy to “The Big 8” Accounting Firms – These firms started out offering a professional service – accounting, but over time branched out to provide a ‘one-stop’ shop offering a spectrum of management services to companies. State DR programs may need to consider offering a full range of services for working with the public and stakeholders, such as web sites, public involvement initiatives, and strong competence in issue-areas important to the state.
3. Adopt a “culture change” strategy – Infuse conflict resolution and collaborative problem solving in state government through programs and policies that develop skills, leadership, and systems.

Speaking at PCI’s 2003 State DR Programs annual meeting in Orlando last month, Potapchuk said changing contexts in state government and changes in the DR field are shaping the way DR programs should be thinking about the future.

He also suggested there may be a triple bottom line for participatory processes. These processes, he said, should be:

1. Inclusive (of stakeholders and citizens),
2. Effective (achieve clear outcomes), and
3. Collaborative (good process).

State programs and the conflict resolution field in general may need to evolve approaches that help achieve this triple bottom line.

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Transportation Collaboration
Case Studies Available

NPCC has published an on-line booklet featuring 11 case studies of successful collaborative processes in transportation. The case studies are a supplement to Transportation Solutions: Collaborative Problem Solving for States and Communities, the second in NPCC's ‘Solutions' series that offers recommendations for governors and state transportation officials on ways to enhance the use and effectiveness of collaborative problem solving around transportation issues.

The featured cases include collaborative transportation planning and construction processes in California, Colorado, Florida, Oregon, South Carolina, Utah, Washington, and Virginia. Each case study includes an overview of the situation, detailed information about the stakeholders and collaborative process, and descriptions of the outcomes and lessons learned.

The cases were written or adapted by participants at an April 2003 NPCC colloquium for people involved in transportation collaborations—federal and state agency representatives, consultants, dispute resolution professionals and representatives from professional associations and local planning organizations. The colloquium was co-sponsored by the Federal Highway Administration, the U.S. Institute for Environmental Conflict Resolution, the American Association of State Highway and Transportation Officials and the Florida, Oregon, and California Departments of Transportation.

• Download the complete version Transportation Collaboration Case Studies (216 KB PDF).
• Download the full report Transportation Solutions: Collaborative Problem Solving for States and Communities (1.09 MB PDF).

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PCI Videos Feature Successful Collaborative Processes

PCI has produced two videos that describe successful collaborative processes in the fields of human services and transportation. The videos are $15 each and may be ordered from our web site.

State-Local Negotiations to Improve Human Service Systems in Maryland describes a 1996 Governor's Task Force for Children, Youth and Families Systems Reform, which initiated state-county negotiations in Maryland to re-think human services delivery. The negotiations helped eliminate duplicate services, establish measurable results, and transfer decision-making authority to county-level Local Management Boards that allow more flexibility to meet local needs.

Building Consensus: Transportation Rulemaking In Oregon is an in-depth look at how Oregon resolved a complex public issue around transportation and development interests. Representatives of each key stakeholder in the Oregon process, including Oregon Gov. John Kitzhaber, environmental groups, developers, and state transportation officials, are featured in the film.

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