Tuesday, January 7, 2014

#polarvortex, Climate Change, and My Course on Environmental Dispute Resolution







Understanding and Solving Complex Environmental Issues


This Cold Morning

Schools and offices closed as the temperatures dipped to lows not seen in decades. Experts explained what was happening here and here.  A deep dip in the jet stream allowed the frigid cold and winds of the North Pole to descend far south.  

This morning, my little micro-climate in the central Appalachian Mountains registered a temperature of nearly six degrees below zero.  My home town of St. Louis, inundated with a large snow fall and even colder temperatures, is reportedly "closed" today.  The entire city.

As I write this post, I am bundled in a fleece robe, long underwear, yoga pants, a hat, and my pink, fluffy, finger-less gloves.  I've got a lap blanket wrapped around my legs and mid-section, but I'm about to crawl inside my down sleeping bag so I can continue to work at the computer comfortably.

Boo Boo, my littlest dog, is wearing two layers of dog clothes and has curled up on what I call his "heating station," a heating pad set on "4."  I've wrapped him in a lap quilt to finish the heat treatment.   

Climate Change: The Deniers and the Believers

In a New Year's tweet, Donald Trump used the bitter winter weather to argue that global warming is "bullshit."   On Facebook, a friend posted this response:  "Just because you can stick your head in your fridge's freezer does not mean the house is not on fire!"  

And so, that is how so many conversations about our big problems go.  Funny, but they do not help us move forward in any meaningful way.

What might?  How about building more capacity for group facilitation, consensus building, and cooperative behavior?


Environmental Dispute Resolution Course at the Appalachian School of Law



Last year, my Dean, Lucy McGough, invited me to teach a course on Environmental Dispute Resolution. Yes, I said!  Please!  

Less than 20 of the 200 ABA-approved law schools in the U.S. offer this type of course. I am proud to say Appalachian School of Law is one of them.  

But, what a sad statement that statistic offers about the kinds of skills we are teaching the next generation of civic and legal leaders graduating from our nation's law schools. These graduates face complex problems that repeatedly teach us that "we are all connected."   Yet, they have a modest tool box of tools, unless they attend a school like ours.

Here's how I describe the course to students:
This course explores the characteristics of environmental disputes, how they arise, and how we choose to resolve them.  We will examine a range of consensual and non-consensual processes (litigation, arbitration, multi-party negotiation, mediation, negotiated rule-making, consensus-building, collaborative governance, and group facilitation) and evaluate the consequences of process selection.  We will explore and examine the advantages and disadvantages of different process choices in environmental disputes.
The course gives me a place to teach these various processes and their corresponding techniques, skills, values, and ethics.  I also use it to teach distributive bargaining skills when parties have a fixed pie they must divide.  More often than not parties think they have a fixed pie when, instead, they have many opportunities to expand the pie before they begin dividing it.

I rely on four original simulations to teach the course:
  • Icky Stuff (about a dangerous by-product of a manufacturing process);
  • To Hell with Your Angels' Share (about widespread property damage resulting from a fungus that grows in the presence of ethanol fumes arising from aging whiskey);
  • Proposal to Reintroduce Red Wolves into the Central Appalachian Mountains of Southwestern Virginia (as the name suggests); and,
  • The East River Wind  Farm Project (about the attempt of Dominion Power to locate a wind farm on a ridge of the Appalachian Mountains located about an hour from the law school).  
















Students are assigned roles that include government officials or regulators, local businessmen, industrial representatives, farmers, landowners, environmentalists, eco-terrorists, hunters, local politicians, and labor.  Each representative has confidential facts he or she can share strategically as the negotiation evolves.

Last year, my trained mediators got an opportunity to serve as the group facilitators. They were surprised at the additional skills the task required and pleased at the chance to experience the complexity and promise of these types of processes.


At the end of the course, students will know:
  • The relevance and prevalence of consensual processes (multi-party negotiation, mediation, negotiated rule-making, consensus-building, collaborative governance, and group facilitation) in solving environmental problem;
  • The role of environmental litigation and adjudication to enforce standards, interpret laws, and to attribute liability;
  • How to effectively prepare for and participate in an environmental problem-solving process;
  • What consequences process selection has on the outcomes that are possible;
  • How environmental conflicts differ from other conflicts and how they can be managed effectively;
  • The central elements of effective advocacy and the different ways organizations manifest them;
  • The purpose and effective elements of public comments to administrative agencies;
  •  Judicial review of administrative decisions;
  • The role of arbitrators and administrative law judges in administrative decision-making;
  • Basic theory and practice of administrative adjudication;
  • Basic theory and practice of administrative rule-making;
  • Basic legal processes; how a case proceeds through the courts; and,
  • The basic structure of government, and the federal/state separation.

I must have done something right last year, even if I barely stayed one step ahead of the course calendar. This year, I understand the course has a wait list.  I know it will be a lot more fun for me, and based on the lessons I learned last year, it should be a better course for students.  

We won't tackle climate change, although Mediators Without Borders keeps trying. But, we can get a sense of how talk works even with big, polarizing issues, like climate change. 

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