environmental mediation Archives

Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes

July 6, 2016 by Lester Levy Leave a Comment

Some of you may already have seen a copy of my new ebook, in which I propose a new paradigm for resolving complex, multi-party environmental disputes. It relies on mediation — not as it has been compromised and incorporated into standard litigation procedures — but as a true and superior alternative to litigation.

Why did I write it?

I wrote it because of what is going on in the world today. Because there is an urgent need for a neutral forum and a fair process in which to investigate, discuss and remedy some of the myriad problems that have adversely affected our natural resources and our quality of living. I wrote it because I’ve seen first hand, over the last 25 years, how environmental mediation provides the participants with greater control over their own destinies and a route to achieve settlement outcomes that are more scientifically sound, more cost effective and which can be reached in a more timely fashion compared to tort style legal adjudication, and which are designed to better the environment.

I wrote it to show how mediation provides a unique opportunity to bring together the parties involved in an environmental problem, their representatives, including scientific experts and environmental regulatory agencies, to intelligently assess the conflict, agree on the testing required, agree on the most effective and least costly remedy, and make informed decisions about a fair and equitable allocation of actual costs of investigation and cleanup among the parties.

The e-book describes the general methodology I’ve developed as well as key steps and issues raised along the way, from initiation to final resolution of environment disputes. It includes the presentation of a basic financial model to illustrate the significant financial benefits to be realized through a mediated process instead of proceeding via traditional litigation. I believe strongly that this new paradigm is much better suited to the culture and concerns endemic to environmental regulation and the related dispute resolution needs—current and future. I also believe that many of the ideas discussed here are directly relevant to other types of complex, multi-party commercial disputes, so the potential advantages and benefits of mediation are far from limited to the environmental field. If you are interested in reading it please fill out the form below in order to download a complimentary copy.

Learning To Make The Most Of Imperfect Evidence

May 20, 2016 by Lester Levy Leave a Comment

Call it “rough justice” if you prefer. This is yet another reason why many lawsuits are well suited to the mediation process. In environmental cases, for example, we cannot “rewind the tape” to see exactly when and how much of a particular contaminant was released into the environment, and by whom. Similarly, we cannot perfectly dissect the subsurface beneath our feet (like cutting a slice of birthday cake) and see the precise soil and groundwater pathways that a chemical release traveled over the course of months and years, vertically and horizontally. The best we can do is to drill for samples at various locations and depths where we expect the contamination to be found, to study the resulting evidence of the subsurface contours and the chemical concentrations found at each location. From this data we “reconstruct” what we believe most likely happened many months and years ago, where the chemicals were released and where they are now located, how we can most efficiently and cost effectively clean them up, and what will happen to the affected media if the problem is not corrected.

We cannot go back in time. Therefore, we must draw informed yet imperfect inferences from all the evidence we can find.

This is where environmental mediation comes in. With this data in hand, as evaluated by experienced professionals working for the disputants, we can vet the various studies presented though informed and professional debate. From these studies, peer review and discussion, we draw rational inferences from which we can answer the key legal and scientific questions presented, including: where is the contamination found and in what concentrations, what methods are available to clean it up it to required levels, at what cost and, ultimately, who should bear the costs and in what proportion. [Read more…]

A New Paradigm for Solving Complex Environmental Disputes

April 1, 2016 by Lester Levy 1 Comment

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…]

Our Environment is a Precious Resource and Should be Treated as Such

March 20, 2016 by Lester Levy Leave a Comment

A New York Times article on March 17th includes an op ed., stating in part,

“Water may be the most important item in our lives, our economy and our landscape about which we know the least.”

Concurrently, the Washington Post ran an article reporting that:

“The World Health Organization has put a number on the people estimated to have died as a result of living or working in an unhealthy environment and it’s big — 12.6 million. That number represents one in four of all deaths globally and underscores the devastating impact of the chemicals and waste we’ve been putting into the air, water and earth since the end of World War II.”

These reports underscore many of the themes that I have been writing about these last few months: Why do we leave these critical issues to resolution as we might any other tort-based claim. By contrast, the societal impacts of pollution directly affect our health and enjoyment of our natural environment. The costs of investigation and cleanup – whether in the form of scientific remediation or as damages to those injured by the contamination – are borne directly by our business communities and the American taxpayers. Further, we spend far too many discretionary dollars in moving these cases through an over-burdened and overly expensive court system – which is not designed to handle the difficult scientific and regulatory issues that predominate in environmental cases. [Read more…]

Mediation Can Accelerate Cleanup

March 11, 2016 by Lester Levy Leave a Comment

A recent exposé broadcast on New Jersey public television revealed there may be as many 100,000 unaddressed and leaking underground storage tanks in New Jersey. Many of the tanks contain hazardous materials including petroleum products such as heating oil and gasoline, PCE-used by dry cleaners over many years to clean our clothes-and volatile organic compounds (VOCs), such as “degreasers,” used in many manufacturing businesses. If not contained, these chemicals, which are potentially hazardous to human health and the environment, can threaten the groundwater we drink and use to irrigate our crops.

Many of these tanks have remained in place for decades-either forgotten, because historical users have moved on, or ignored because our current legal and administrative system lacks the resources to investigate and require necessary remedial action at all sites. Cases involving multiple parties and adjoining properties are at the mercy of the judicial and administrative procedural inefficiencies identified above and the “business-as-usual” attitude of the legal professionals handling them. So resolution-and cleanup-are delayed while the contamination at issue continues to migrate or volatize, thereby risking harm to people and the environment.

Mediation provides a way to cut through this backlog. Environmental mediation as an alternative or adjunct to traditional federal or state court litigation has proven to be enormously successful. Unlike immutable judicial rules, mediation procedures and outcomes are not limited to any one statutory scheme-or to any pre-determined set of remedies. Mediation has fewer technical and tactical delays than traditional litigation because its progress is driven entirely by the parties themselves. The federal Environmental Protection Agency, Department of Justice, and their counterpart state environmental agencies, attorneys general and environmental project managers, can join in the mediated discussions even if they are not formally parties to the case. In my experience, the sooner the agencies are involved, the sooner the courts require mediation of cases that will benefit from its use, the faster the case can be resolved to the satisfaction of the parties and the agencies. Streamlining the dispute resolution process can provide a correspondingly huge savings of time and money. And the money that is spent “in process” is focused on resolution and cleanup. [Read more…]

Using ADR to Resolve Mass Environmental and Toxic Tort Cases

January 25, 2016 by Lester Levy Leave a Comment

There has been a lot of news recently about large-scale releases of contaminants into the air, water and soil, which have affected large numbers of people and their property. One such example is the discovery of high concentrations of lead in Flint, Michigan’s drinking water system. Another is the ongoing release in Southern California of large volumes of natural gas into the soils below the homes of residents living there. Other examples include the oceanic release of oil into the Gulf of Mexico, and the widespread property damage caused by hurricanes Sandy and Katrina to many thousands of people living in their paths.

In each of these cases, a single event or series of related events caused harm to a large number of people. As a general matter the types of harm suffered are similar but the degree of these harms differs among the affected population. In court, these cases may be filed as class actions or coordinated mass torts (possibly MDLs) and present an enormous challenge to our already overburdened court systems, which can result in substantial delays in resolving them.

Mediation and other ADR processes have repeatedly proven to be enormously valuable as a means for resolving these mass toxic tort claims as well. ADR provides a way to condense many years of expensive litigation into a precise, cost-effective, and efficient process that provides fair and individualized compensation to thousands of people that were affected by an accidental release or other tragedy.

[Read more…]

A Crisis in New Jersey with Underground Storage Tanks

December 16, 2015 by Lester Levy 1 Comment

New Jersey Public Television (NJTV) recently completed a broadcast of a three-part expose on the dangers and difficulties stemming from as many as 100,000 underground storage tanks that remain in the ground throughout the state. In very stark terms the NJTV report warns that some of the sites are “nightmares” and “environmental ticking time bombs”, posing an immediate threat of contamination from seepage into ground water and basements in heavily populated areas.

These old storage tanks, both above and underground, are from homes, gas stations and dry cleaning sites – closed or currently in operation – where the chemicals have leaked over time. The chemicals include fuel, PCP (dry cleaning fluid) or VOCs like degreasers and other chemicals used in automotive or other manufacturing sites. As storage tanks are prone to corrosion, some of the chemicals have leaked into the soils and then leached into the groundwater. This is true of almost every tank that was built or installed more than ten to fifteen years ago, when the technology was changed to build tanks with several layers of protection. Often neighboring businesses’ tanks release chemicals into the soil which then leaches into the groundwater and combine to form “plumes” of contamination in the ground water, which flow with the groundwater in underground channels to other properties. One of the main concerns is that these plumes of contamination can reach areas where drinking water wells draw water from the contaminated groundwater or where the chemicals in the plume “off gas” as vapor upwards through the soil into buildings and homes. These scenarios present very real risks to human health and welfare.

All expletives aside, the problems and risks stemming from these buried and abandoned underground storage tanks perfectly illustrate the reason we need a new approach to solve long-standing environmental cleanup problems. As the NJTV reporters observed, the NJ Department of Environmental Protection is simply overwhelmed by the magnitude of the problem. Given budget limitations and the protracted legal process involved when regulators move to compel cleanup, the NJ DEP has essentially been performing radical triage, focusing its resources on the situations needing immediate attention, which likely will result in the vast majority of these storage tanks remaining in the ground – and the contamination remaining in the groundwater — for many years to come. [Read more…]

Why I Created this Website

November 16, 2015 by Lester Levy Leave a Comment

I created this website to discuss real life examples of why environmental mediation really works. It is not a “how to” site. There are thousands of those out there. It’s more of a “why” or, more accurately, a “why not” site. It is focused particularly on why environmental mediation fits so well into and is consistent with the aims of maintaining and cleaning up our environment, our waters, air and soil.

There is another reason. Over the last 25 years it has become apparent to me that there is much more extensive use of mediation to resolve environmental cases on the West Coast, particularly in California, than in other parts of the country. I’ve seen this first hand, as my mediation practice has grown national in scope, and yet the environmental cases I handle remain heavily concentrated in California. I’m not sure what accounts for this disparity. Environmental disputes are similar, no matter where the pollution or groundwater contamination may happen to occur; the governing laws are similar and so is the regulatory framework. To my way of thinking, then, mediation could prove equally beneficial for environmental lawyers based in New York, Washington and Chicago as well those working on the West Coast. To the extent that lack of awareness and prior experience is a contributing factor in explaining why California remains so much more advanced in the use of environmental mediation, I hope this website will serve to ameliorate those deficits. [Read more…]

Why Early Insurer Participation is Critical

September 24, 2015 by Lester Levy Leave a Comment

In many environmental cases, pre-pollution exclusion policies are invaluable assets that prove absolutely necessary in order to fund case resolution. This is especially where the insured-defendant is no longer in business or has few or no assets available to respond to the environmental cleanup requirement. But while the insurance coverage may be key to resolving the case, it is not uncommon for there to be an adversarial relationship between the policyholder and its insurance companies, as each is attempting to spend as little as possible of its own money in contribution to the settlement effort.

Needless to say this dynamic can create an impediment to reaching a settlement. What often happens is that policyholders opt to keep their insurers in the dark as much a possible, in an attempt to avoid disclosure of facts and circumstances that could provide the insurers with a basis to deny coverage. There is tension between facts that tend to establish coverage and which may also be harmful to the policyholder in the underlying environmental case.

Traditional litigation often fails to provide an effective way for insurance carriers and the value of their policies to effectively participate or contribute to resolution of the main environmental court proceeding. There may be ancillary lawsuits between various policyholders and their insurers but these are normally stayed pending resolution of liability issues in the environmental case. Even if the insurance coverage cases are not stayed there is no formal – and little informal – coordination between the various cases. [Read more…]