We live in a world of ever-growing concern about environmental harm to our health and wellbeing. We are acutely aware of future environmental risk, such as climate change and sea level rise, and diminishing natural resources, such as clean drinking water and the air we breathe. To address the concerns, environmental cases need to be handled more intelligently and more effectively. As environmental problems grow in scale and complexity, we are in need of a new paradigm for resolving them.
We have the tools to make this happen but our dispute resolution models remain stagnant; stuck in the past tense. Unlike rapid and continuous innovation in science, technology, telecommunication and medicine, for example, the “old” ways of environmental dispute resolution – primarily through generic pre-trial procedural mechanisms – is inefficient and overly expensive. The current default reliance on the conventions of traditional tort litigation, where every party retains its own army of lawyers, experts, consultants, lobbyists, etc., is wasteful and often misdirected. Further, current norms were not designed to effectively promote the efficient and orderly identification and remediation of the contamination, or other problem, at issue. More often, they merely move money from one pocket to another without a corresponding increase in environmental improvement and protection.
The status quo ante imposes a high social cost to the extent complex environmental disputes remain unresolved and problems fester. The more time it takes to implement a cleanup, the more expensive the costs of that operation become. In groundwater, for example, the contaminants can continue to migrate laterally and vertically such that larger, more powerful remedial technologies will eventually be required to do the job. Or in the case of drinking water, just think of the high health and social costs imposed on the citizens of Flint Michigan as a result of delay in taking remedial action. Many of these escalating costs, in turn, are ultimately borne by taxpayers, thereby increasing the societal economic costs of pollution and its cleanup. Moreover, the clean up costs are in addition to already extremely expensive litigation-based transactional costs, which multiply each week, as the case remains unresolved. Unfortunately, most environmental cases move through the judicial system like molasses, while the environmental harm at issue tends to migrate and grow. [Read more…]
A New York Times 
Recent decades have seen a dramatic rise in the use of Alternative Dispute Resolution (ADR) proceedings as a means to evaluate claims and compensate qualified parties in a mass claims settings. These cases can arise from settlements in class or mass actions filed in court or as government-originated programs designed to compensate victims of a military or environmental disaster.
Lawyers are creatures of habit. We are steeped in it. It starts with the training we receive in law school where we are taught a series of rules and procedures to be followed in all legal proceedings. In litigation the rules cover everything from cradle to grave, starting from the initiation of a lawsuit through trial and final appeal. The rules are intended to guarantee that each case will receive identically fair consideration and due process protections, irrespective of who the parties are or the nature of the dispute. Everyone is entitled to equal treatment and the process is the same for everyone. Every case is handled the same way.
