Sydney Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Sydney Law Review |
|
ROSEMARY LYSTER[*]
Mediation has been resorted to in the environmental context for at least two decades.[1] It has been used to resolve both site-specific environmental disputes, and, in regulatory negotiations, to formulate environmental policies and regulations. The fact that the practice of environmental mediation is widespread is not a bar to posing the question: should we mediate environmental conflict? The reason for this is that, as O’Leary notes, “despite the plethora of literature touting the advantages of environmental mediation (and at times, the disadvantages), the empirical foundations for most of the conclusions are quite weak”.[2] Moreover, few scholars have offered a theoretical justification for environmental mediation. A survey of the literature on environmental mediation shows that it is written primarily by those who practise environmental mediation. Their writing is largely descriptive, and offers a practical justification for why mediation should be used. Any theory which has developed seems to reflect attempts by theoreticians to pull together the key elements of successful environmental mediation activities.[3]
This article relies on postmodern theory to propose the use of mediation in the context of regulatory negotiation. Also known as negotiated rulemaking, this process may be used by the bureaucracy, with the help of a mediator, to build consensus amongst interested and affected parties with regard to prospective environmental policies and regulations. Postmodern theory is relied upon because of the apparent links between it and the new era of environmental law.
The new era of environmental law had its origins in the 1992 United Nations Conference on Environment and Development (the Rio Conference). Emphasising the need for all nations to achieve sustainable development, it is concerned to marry ecocentrism, community and rights of participation with the right to development. The underlying wisdom of the Rio Conference was the interconnectedness of all the systems of the planet, as well as its finite nature. This is remarkably akin to that of postmodern scientists who view the universe as an unbroken whole. Postmodern political theorists, meanwhile, would reject bureaucrats’ claims that they can evolve appropriate environmental policies and regulations without taking account of the community. In their view, bureaucratic power should be decentralised and the bureaucracy should recognise the pluralistic sentiments of the community.
It seems that environmental mediation, in the form of negotiated rulemaking, is theoretically justifiable if it helps to achieve the goals of the new environmental order. This is particularly so in a regulatory context where traditional methods of regulation are questionable.
The article also addresses the many ethical and social justice concerns that arise with regard to the use of mediation in a regulatory context. Since regulations may become the subject of an application for judicial review, the article also assesses the appropriateness of such review where rules are negotiated.
There are many definitions of mediation. Boulle[4] offers a unique definition of mediation, describing it as “a decision-making process in which the parties attempt to make their own decisions with the assistance of an additional person, the mediator, who assists the parties to reach an outcome to which each of them can assent and to achieve other objectives which contribute to effective decisionmaking.” This definition may be distinguished from others[5] in that Boulle defines mediation as a decision-making process rather than a settlement process.[6] Since this article focuses on the use of mediation in negotiated rulemaking, Boulle’s definition is preferred.
Traditional definitions of mediation are not adequate, however, for defining environmental mediation. The reason for this is that while it shares many of the characteristics found in such definitions, it has features which are unique. The characteristics of environmental mediation include: multiple fora for decisionmaking; inter-organisational conflict; multiple parties; multiple issues; technical and scientific uncertainty; and alternative public/political arenas for problem solving. Environmental mediation can result in fundamental and irreversible alterations in the physical environment.[7]
The 1992 Rio Conference established a framework for achieving ecologically sustainable development and addressing the many environmental problems facing the global community. These include global climate change, the loss of biodiversity, and the destruction of the world’s forests. The “new environmental agenda”[8] is very different from the preoccupations of the last two decades, which focused on “end of pipe” solutions to pollution problems, and the preservation of individual species and landscapes. Previously, regulators believed that the negative effects of pollution were localised, or justifiable when balanced against the gains made in agricultural and industrial development. There seemed to be no need for energy policies alternative to those which relied on fossil fuels and emitted excessive amounts of carbon dioxide into the atmosphere. The destruction of forests was seen as justifiable in the pursuit of purely economic benefits, and there was little appreciation of the ecological cycle upon which the survival of the planet depends.
The “old” environmental agenda reflected the era of “modernity” in which science, technology, and capitalism supposedly improved the human condition. It may, in fact, have been dehumanising. In order to dominate nature, scientific thought and capitalist society has required the individual to emerge as distinct from nature, and so “despiritualise” her internal nature.[9] “Modernity” may also have given rise to environmental destruction and an inability to control technology. As Bohm explains:
With the coming of the modern age ...[t]he earlier, basically religious approach to life was replaced by a secular approach. This approach has assumed that nature could be thoroughly understood and eventually brought under control by means of the systematic development of scientific knowledge through observation, experiment, and rational thought ... The modern mind went from one triumph to another for several centuries through science, technology, industry, and it seemed to be solidly based for all time. But in the early twentieth century, it began to have its foundation questioned.[10]
Bohm explains that relativity theory, and to a lesser extent quantum theory, questioned the assumption of an intuitively imaginable and knowable order in the universe. Physicists realised that they could not grasp the world as “an intuitively comprehensible whole”.[11] Both relativity and quantum physics seem to agree on the unbroken wholeness of the universe.[12] Bohm concludes that fragmentary thinking led to disorder, disharmony and destructive partial activities. He states that “seriously exploring a mode of thinking that starts from the most encompassing possible whole and goes down to the parts (subwholes) in a way appropriate to the actual nature of things seems reasonable.”[13] The insights of postmodern science have been reflected in the emerging principles of environmental law. There have to be global responses to the global environmental crises which bear out the lesson of physics – that there is an unbroken wholeness to the universe.
The link between the development of environmental law and scientific evidence of, and explanations for, environmental degradation is evident. Emond[14] has organised the development of environmental law into three stages of consciousness, each influenced by the underlying science of environmental degradation. He has described these stages as symbolic regulation, preventive regulation and mutual or co-operative problem-solving. In the symbolic regulation stage, pollution is seen as a technological problem which can be solved by technical or scientific “fixes”, and regulators will focus on prescribing the right technology. This is often described as the best available or practicable technology. Law, regarded as a process for regulating conduct, will regulate discharges of pollutants to achieve an “acceptable” level of pollution.
Environmental law in the stage of preventive regulation differs because the scientific understanding of environmental problems changes. Here, scientists note a new order of pollution. Substances, described as “exquisite toxics”, are odourless, colourless, and tasteless yet they are deadly and cause birth defects, allergies and mutations. Many are bioaccumulative.[15] An understanding of the fact that environmental problems are highly complex, interdependent and polycentric begins to develop. The legislative response is increased regulation, including the liability of corporate officers and directors for pollution, new environmental impact assessment legislation, clean up and remediation provisions and environmental auditing.[16]
In the phase of co-operative problem solving, regulators find that their approach has relied too heavily on technocratic solutions and an adjudicative model of dispute resolution. As Emond states, “[i]t has proceeded from an adversarial, competitive, rights-oriented model that was destined to siphon off creative energies in a contest of rights regulated only by the logic of justice and due process.”[17] The new model needs to recognise interdependence, connectedness, respect, obligation and co-operative approaches to problem-solving. So the language of the postmodern scientist and the environmental lawyer coalesce.
Emond has identified the need for a new law making process, to reflect the scientific underpinnings of environmental degradation. The reason for this is that the technocratic lawmaking process has failed to deliver good environmental outcomes. Criticisms of the bureaucratic/modernist era of environmental decisionmaking have been made by others, including postmodern philosophers. Douzinas and Warrington state:
When ... we view modernity as an iron cage of bureaucratisation, centralisation and infinite manipulation of the psyche by the “culture industry” and the disciplinary regimes of power and knowledge, postmodernism is celebrated as an exhilarating moment of rapture. It defies the system, suspects all totalising thought and homogeneity and opens space for the marginal, the different and the “other”. Postmodernism is here presented as the celebration of flux, dispersal, plurality and localism.[18]
Pertinent to the role of the bureaucracy in formulating environmental policies and regulations is the following observation:
[S]tatutes, delegated legislation, administrative legislation and adjudication ... cannot be seen any longer as a coherent, closed ensemble of rules or values. Legal language games have proliferated endlessly and cannot be presented as the embodiment of the public good, the general will, the wishes of the sovereign electorate or of some coherent system of principle.[19]
The philosophers of postmodernity expose as mythical the bureaucracy’s claims to legitimacy. In the environmental context, the bureaucracy can no longer pretend to wholly understand the scientific basis of all environmental problems. It must rely for its information on an ever expanding pool of knowledge, drawn from a diversity of sources. Indeed, it must accept the uncertainty of science, and be prepared to engage in “data” negotiations. Moreover, the bureaucracy can no longer simply claim that the policies and rules, which it fashions, achieve “consensus” and are formulated in “the public interest”. It must seek the views of interested and affected parties. It must recognise the pluralistic sentiments of the community and “open space for the marginal, the different and the ‘other’”. Bureaucratic power must be decentralised. The reason for this is that the contextual analysis of environmental problems can only be solved effectively at the community level.[20] The bureaucracy must engage the community in effective processes of public participation.
There are good reasons for attempting to shatter the “iron cage of bureaucratisation”. As the state attempts to secure social justice, and assumes an ever greater regulatory role, the powers and functions of the administration have an enormous capacity to affect the rights and liberties of people. The Executive branch of the state has acquired an immense accession of power. Parliament no longer exercises an effective supervision of Executive action. As Sir Gerard Brennan has noted:
Parliament no longer stands as a counterweight to executive power. Nowadays Parliament is the ally of the Executive, giving effect to the Executive’s programs and policies. ... Parliament ... is now a buttress of executive power.[21]
If the Executive, and thereby the bureaucracy, has indeed acceded to power then Parliament is no longer an effective body for representing societal interests in the policy and law making process. Public participation in the bureaucratic rulemaking process becomes, then, an essential feature of democratic government. Without it, citizens must be satisfied to vote periodically in an election to place representatives in a weakened Parliament.
The question now is, if there are scientific and theoretical justifications for a new environmental agenda, in both a substantive and procedural sense, do the instruments generated at the Rio Conference withstand scrutiny? Do they go far enough in promoting the new agenda?
The Rio Conference heralded a new era of environmental law. It changed conventional thinking about both the substantive and procedural nature of environmental regulation.[22] Although the Conference gave birth to a number of seemingly disparate Conventions and statements of principles, an underlying theme runs through them all – “the unbroken wholeness of the universe”. While a suspicion might arise that these instruments constitute totalising thought, the lawmaking process which they promote is essentially postmodern. Most of the Rio instruments insist that public participation is an essential mechanism in formulating national and regional responses to global environmental problems.
The purpose of the Conference was to formulate strategies to achieve “sustainable development”[23] worldwide. Essentially, the Rio instruments recognised the interconnectedness of all systems on earth, and the need to protect them. Chapter 8 of Agenda 21 promotes the integration of environmental, social and economic systems in areas of policy, planning and management. The Convention on Biological Diversity recognises the need to protect the biodiversity of the planet, since all species and all ecosystems are linked in the web of life. The Climate Change Convention provides the framework for ongoing negotiations, like those at Kyoto and Buenos Aires, to establish maximum permissible emissions of greenhouse gases. This Convention has at its heart the interconnectedness between the climate change phenomenon and the polluting activities of every country. Finally, the Forest Principles recognise the crucial link between the health of the forests and the health of the planet. Forests provide homes for diverse indigenous communities, they act as “sinks”[24] for greenhouse gases, and sustain megadiverse ecosystems. All systems in the forest depend on each other for survival, and humanity in turn depends on them.
The Rio Conference did not only produce a substantive vision for sustainability, however. All of the Rio instruments recognise that the sustainability of the earth depends on national responses that are crafted with the fullest possible extent of public participation. They recognise the need to “recover a sense of the interconnectedness between communities and the land.”[25]
Principle 10 of the Rio Declaration on Environment and Development states:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.
These sentiments are endorsed in most of the Rio instruments.[26] What the instruments seem to recognise is the need for “flux, dispersal, plurality and localism.” The “plurality” of the States, and within the States, will inevitably produce “local” responses to the principles of ecologically sustainable development. So, as local or regional programs and policies evolve in response to global environmental problems, the Rio instruments are “dispersed” and will be forever in a state of “flux”. The instruments are “dispersed” from a forum, like the Rio Conference, to virtually every country in the world. The unique responses of individual countries, subregions and regions, underpinned by disparate social, political, cultural and economic paradigms, will ensure that the instruments are in a state of “flux”.
Although the Rio instruments call for the participation of all concerned citizens, it may be appropriate to offer a typology of citizen participation.[27] The typology reflects varying degrees of citizen power in participatory programs. It will be argued that, for bureaucratic power to be properly decentralised, citizens must engage the State in a meaningful way. As Arnstein notes, “[t]here is a critical difference between going through the empty ritual of participation and having the real power to affect the outcome of the process.”[28] In devising an eight rung ladder of citizen participation, she distinguishes the following rungs: therapy and manipulation (non-participation); placation, consultation, informing (degrees of tokenism); and partnership, delegated power and citizen control (degrees of citizen power).
Effective participation can only occur on the last three rungs of the ladder. Where the State is prepared to enter into a “partnership” with interested and affected parties, power may be “redistributed through negotiation between citizens and powerholder.”[29] Citizens can also achieve a dominant decision-making authority where power is delegated to them. In some programs, they may be in full control of all policy and managerial aspects. Clearly, where any of these models of participation is present, the bureaucracy will no longer dominate. In formulating environmental policy that is consistent with the substantive principles of Rio, it is submitted that citizen/State partnerships must be established. Negotiated rulemaking may provide an appropriate framework.
In the search for models of participatory democracy, negotiated rulemaking has many promising aspects. Negotiated rulemaking is a process of administrative rulemaking which had its genesis in the United States. However, before analysing its features it may be useful to refer to its precursor – “notice-and-comment” rulemaking – which is the conventional rulemaking process under the United States Federal Administrative Procedure Act 5 USC (APA). Here, before finalising policies and regulations (rules) regulators are required to publish a notice of the proposed rule in government newspapers and invite public comment within a certain time. Participation is usually limited to the making of written representations, which must be taken into account by the regulator when formulating the rule.
In Australia, notice-and-comment proceedings often form part of the rulemaking process, either informally or formally as a statutory requirement. In New South Wales, for example, section 5(2) of the Subordinate Legislation Act (1989) requires the Minister to publish a notice in the Government Gazette and a newspaper circulating throughout New South Wales and, where appropriate, in any relevant trade, professional, business or public interest journal or publication. The notice must state the objects of the proposed statutory rule, advise where a copy of the proposed rule may be obtained or inspected, and invite comments not less than 21 days from publication of the notice. In addition, consultation must take place with appropriate representatives of consumers, the public, relevant interest groups, and any sector of industry or commerce, likely to be affected by the proposed statutory rule. All comments and submissions received must be considered. The nature and extent of the publicity and consultation are to be commensurate with the likely impact on interested and affected parties.
Section 5 needs to be read together with Schedule 2 of the Act which requires the Minister to complete a regulatory impact statement including: a statement of the objectives sought to be achieved and the reasons for them; an identification of the alternative options by which the objectives can be achieved; an assessment of the costs and benefits of the proposed rule, including the costs and benefits relating to resource allocation, administration and compliance; an assessment of the costs and benefits of each alternative option mentioned in the statement; an assessment of which of the alternative options involves the greatest net benefit or the least net costs to the community; and a statement of the consultation program to be undertaken. Advice on where a copy of the regulatory impact statement may be obtained for inspection must be included in the notice published in the Gazette, under section 5 of the Act.
The fact that interested and affected parties are not permitted to participate directly in notice-and-comment proceedings seems to encourage a climate of adversarialism in the rulemaking process. This occurs when interested and affected parties compete to influence the rulemaking process. The drawbacks of an adversarial process in environmental rulemaking are that: parties may adopt extreme positions anticipating that the regulator will attempt to reach a compromise; polycentric[30] environmental disputes are not adequately resolved using adversarial processes; and defensive research undertaken by parties is timeconsuming and expensive. Finally, the chances of voluntary compliance are reduced as the loser in the adversarial process may believe that the final rule is not legitimate.[31]
Recognising that the rulemaking process had become increasingly adversarial and unduly formalised, the 1982 Administrative Conference of the United States recommended that guidelines be drawn up for negotiated rulemaking procedures.[32] The United States Negotiated Rulemaking Act (1990) now encourages agencies to engage in negotiated rulemaking.[33] Executive Order 12866 obliges federal agencies to identify rules for negotiation and to decide whether negotiated rulemaking should be conducted within a year.[34] Here, notice of a proposed rulemaking is published in the Federal Register. Interested and affected parties are empanelled to negotiate a draft rule. After comments have been received from the public, the negotiations are resumed before publication of the final rule.
Negotiated rulemaking is typically facilitated by a mediator. The principal justification for involving a third party in the negotiations is that the intervention adds to the legitimacy of the process. The third party is neutral to the substantive issues involved. During the process, the agency is simply a party to the negotiations. The mediator has responsibility for identifying and contacting potential participants, thus removing from the agency the potential power to empanel only sympathetic parties. The mediator must also advise the agency whether the rule is appropriate for negotiated rulemaking. Once the decision is made to negotiate the rule, the mediator must design the structure of the negotiating panel and identify preliminary issues for discussion.[35] In addition, because the negotiations are likely to involve a large number of participants, the mediator has an important role in interviewing each participant prior to the mediation process.
Although responsibility for the final rule rests with the administrative agency, this must be reconciled with the need to accommodate the consensus reached during negotiations.
The reason that negotiated rulemaking can be regarded as a postmodern process is that it will disperse bureaucratic power substantially. Although the process is essentially advisory, it has the potential to allow the participation of “the marginal, the different and the other” in the negotiation of environmental policy and regulation making.[36] It will lose that potential, however, if the rulemaking model is not appropriate to the jurisdiction in which it operates. Just as the Rio documents anticipate regional, sub-regional or individual responses to their substance, so too must their procedural aspects be contextualised. Some commentators believe that environmental mediation has inherent limitations and that this, together with various ethical concerns, diminishes its utility in the rulemaking process.
Those who argue that there are limits to the mediation of environmental conflict generally do so on two principal bases – the nature of environmental conflict, and the fact that constituencies engaged in the conflict may have better alternatives to a negotiated agreement (BATNA).[37]
The nature of environmental conflict may render mediation less useful for a number of reasons. These include the fact that environmental conflict may have beneficial effects, that environmental conflict often involves intractable moral or values conflicts, and that the characteristics of environmental conflict make it difficult, if not impossible, to mediate.
(i) Environmental Conflict is Beneficial
Preston[38] notes that environmental disputes have a constructive effect not only on those involved in environmental campaigns, but also on society, as the conflict ensures that an environmental consciousness is developed. Referring to legislation, the common law and policy as “authoritative texts”, Preston claims that environmental conflict also engenders a principled development of environmental law and policy.
Although it is clear that environmental conflict has provided the impetus for statutory reform and important legal precedent, Preston’s concerns are not fatal to the thesis of the present argument. First, mediation does not deny conflict but rather acknowledges its positive attributes. When environmental rules are negotiated, the beneficial effects of environmental conflict are not lost as all interested and affected parties will shape the content of the rules. Secondly, it is seldom that environmental legislation provides an “authoritative text”. In an era of executive government, environmental legislation usually creates a regulatory framework which vests significant rulemaking power in the executive.
Thirdly, as shown above, the legitimacy of “authoritative texts” determined by the executive has been rejected as theoretically unsound in the postmodern context. In the environmental context, such texts are drafted, traditionally, by a technocratic bureaucracy which believes that it understands fully the scientific problem to which the regulation must relate. Postmodern scientists would reject this premise while postmodern philoshophers would challenge the bureaucracy’s legitimacy in formulating the regulation without engaging the community to “open space for the marginal, the different and the ‘other’ ”.
(ii) Intractable Moral Conflict?
The claim that environmental conflict is grounded in moral, or value, conflict is probably correct. Value conflicts may arise where parties have different criteria for evaluating ideas or behaviour, exclusive intrinsically valuable goals, or different ways of life, ideology or religion. However, it seems simplistic to believe that in the environmental context the conflict is always “intractable”. Underlying environmental values may render some conflict intractable. The logging of old growth forests, for example, may give rise to intractable conflict as environmentalists insist on “no logging”. In other situations, mediation will produce an outcome to which parties “can assent and to achieve other objectives which contribute to effective decision-making.”[39]
It is unlikely that the focus of environmental mediation will be a reconciliation of values. Rather the process will be used to achieve an outcome which ensures that activities which are likely to affect the environment are properly managed, so that their impact is minimal. The outcome may not be the ideal environmental outcome. However, where interested and affected parties engage in effective participatory processes, it may be that they can assent to the outcomes of the negotiation process. If they are unable to do so, they will withdraw from the negotiation process and seek alternative avenues for pursuing their agendas. Practical experience has shown that mediation can be used successfully to resolve a number of site specific disputes, and to negotiate environmental rules. It is probably more accurate therefore to hold that moral conflict is an “inevitable” rather than an “intractable” feature of environmental conflict.
(iii) Characteristics of Dispute Make Mediation Impossible?
It is often difficult to define the boundaries of an environmental dispute.[40] The interconnectedness of all ecosystems makes the physical and geographical boundaries hard to determine. There is generally a large number of interconnected issues for resolution. There are always multiple parties to the dispute and multiple interests, not all of which will be represented by identifiable interest groups. Although these factors have often been cited as reasons for not using environmental mediation, they have not proved to be insurmountable barriers to resolution. Indeed, a survey of the literature shows that there is no consensus on the extent to which these difficulties interfere with the practice of environmental mediation.[41]
As agreement begins to emerge in an environmental mediation, it is likely that participants will be asked by their constituencies whether the process will deliver the best available outcome. If not, they may elect to pursue their goals in other forums. These alternative forums include appeals to administrative agencies, the pursuit of legal challenges in the courts, or the lobbying of politicians. Essentially, they will be establishing whether they have a better alternative to a negotiated agreement (BATNA).
The question is whether there is a better alternative to negotiated rulemaking within the regulatory framework. The administrative agency is required to formulate rules and policies. Negotiated rulemaking is a sophisticated participatory mechanism which is more advantageous to interested and affected parties than its precursors, like notice and comment procedures. Disaffected parties may wish to resile from the process and challenge the final rule in court. The role of the judiciary in reviewing negotiated rules is a complex one, and is discussed below. It would seem difficult, however, to conceive of a better alternative than the opportunity of meaningful participation in the formulation of rules.
Inevitably, a number of ethical considerations will arise when contemplating the appropriateness of environmental mediation. The question is whether or not these considerations are fatal to the process. Environmental regulation is one of the most important public policy issues of our time. Is it appropriate then that environmental rulemaking should be negotiated amongst a few identifiable interested and affected parties? Boulle[42] notes that because mediation is a private process it may be antithetical to many public law considerations such as the desire to create precedents; interest of community welfare, and the national interest or public policy. It seems, however, that the privacy of the process may be of more concern where mediation is used to resolve specific environmental disputes. With negotiated rulemaking, while the draft rule is “mediated”, the process moves frequently between the private and the public domains. Initially, the agency must publish its intention to make a rule, thus inviting interested and affected parties to participate in the negotiated rulemaking process. The parties who have been empanelled to negotiate the rule will produce a draft rule. When the draft negotiated rule is published for comment, it re-enters the public domain. The submissions received from “the public” are taken into account by the negotiating panel when they devise the final rule. There are other considerations, however, which are more difficult to resolve.
There are two principal concerns here: will all human interests be represented in a negotiated rulemaking, and who will represent the environment? The standards of the US Society of Professionals in Dispute Resolution (SPIDR) focus on the fact that interests may not be represented, and that the negotiators at the table need to recognise these interests. The standards reflect a concern that participatory processes may exclude the true interests of “the marginal, the different and the “other”. As mentioned above, unless the process for negotiated rulemaking is appropriate for the society in which is operates, it will not achieve the postmodern agenda. Even then, there is no guarantee that all interests will be represented. For this reason, SPIDR requires the mediator/facilitator to make certain that such interests, which are identifiable, have been considered by the principal parties.[43]
(i) A Feminist Critique44
Ecofeminists see important connections between the domination of women and domination of the natural environment. The domination of women has an important bearing on their ability to participate in the negotiation of environmental rules. Feminist writers have claimed that political theory, which advocates public participation as a means for advancing participatory democracy, has failed to address issues which impede the participation of women. Central to feminist scholarship is the rejection of a clear dichotomy between non-political /private and political/public spheres in society. For present purposes, the public/private dichotomy breaks down because the division of domestic labour raises psychological and practical barriers against women in all other spheres of their lives. In liberal democratic politics, for example, speech and argument are crucial components of full participation. However, women are often handicapped by being deprived of any “authority” in their speech. Women have not learnt to be in positions of authority and are often represented in token numbers in influential positions both in the workplace and on political bodies.[45]
These concerns are relevant to any assumption that negotiated rulemaking can seek out and reconcile the pluralistic responses to environmental rulemaking. However, it should be noted that some participation theorists anticipate that not all individuals in society will be able to participate. Rather, society must be broken into “sub-state” organisations,[46] which represent individuals in larger forums. So, representative women’s organisations will need to mobilise the resources to participate in a process of negotiated rulemaking.
(ii) Who Represents “the environment”?
In a pathfinding article, Christopher Stone posed the question whether trees should have standing.[47] He recognised that his question might be “unthinkable”, but went on to hold that “throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.”[48] Stone argued for the recognition of the legal rights of the natural environment. In so doing, he proposed that the integrity of the environment, itself, should be protected by the legal system.[49] This ecocentric view is distinguishable from an anthropocentric view of the environment, where non-human entities have only instrumental values for human beings. Stone’s question essentially tests the belief that humans, or associations of humans, can adequately represent the environment.
Stephens et al[50] try to resolve the dilemma by asking whether purely nonhuman concerns should be represented and/or protected in environmental mediation, and what the responsibility of the mediator is in drawing attention to these concerns. They argue that although many interest groups claim a special relationship with environment concerns, they have failed to focus on long-term ecological integrity. This is because some environmental organisations are driven by the need to increase membership and to attract foundation political support. These pressures result in compromise or the selective prosecution of violators of environmental standards. Moreover, few environmental organisations can claim to speak for non-human life forms. As Stephens et al state, [i]t would be absurd to claim to be the duly selected representative of a non-human life or a whole ecosystem.”[51]
Five possible measures are suggested by Stephens et al, for the amelioration of this problem. They include: education of the mediator; education of the parties; testing by the mediator whether the parties appreciate the consequences of the action on the environment; diversifying representation to include parties who hold the “environment as worthy of representation” view; and the appointment of a special representative for environmental interests.[52]
One of the primary concerns about the use of mediation to formulate environmental rules is that an imbalance of power amongst the parties may produce an undesirable environmental outcome.[53] It might, of course, prevent parties from participating at all. A power imbalance is likely to occur where parties to the process have unequal access to resources. Resources include not only economic resources but the advantage of a sound education, an ability to speak the dominant language, an ability (geographically) to reach the site of the negotiations, and so on. Economic power is likely to have an important bearing in this context. It is often associated with high educational levels, and language skills, or an ability to employ specialists to interpret information. Those who lack economic power might find that their ability to participate equally in the process is diminished.
(i) Data Conflict
Unequal economic power is acute in the environmental context where the scientific and technical nature of the problem is likely to be complex. Unequal access to scientific and technical expertise would be a significant disadvantage. As Bacow and Wheeler note, “[r]egulatory decisions more frequently than not turn on mathematical models that are based upon simplifying assumptions. This produces a situation ripe for conflict. Because modeling is expensive, there is a tradeoff between accuracy and cost.”[54] In any case, in the environmental sciences, where systems are often particularly complex by nature, it would be foolhardy to conceive of “science as a source of hard facts and objective truth.” Ormerod states that:
Science and law are systems of knowledge or inquiry which share a common fundamental goal: the seeking of the truth. However, ... data or ‘facts’ that are relied upon to form conclusions and make decisions are only considered to be facts because we believe that they contain truth and because they serve the purpose to which they are put.[55]
He states further that both quantitative and qualitative uncertainty are inherent features of a scientific framework, concluding that “scientific truth is relative and not absolute ... most scientific truths are probably wrong.”
Each party to a negotiated rulemaking needs to understand, therefore, that the scientific “facts” of the dispute can be negotiated, and that access to resources like scientific and technical expertise are essential for meaningful participation. Negotiation of the scientific data underlying environmental rulemaking is inherent in the postmodern regulatory model. The scientific facts are no longer locked in an “iron cage of bureaucratisation, centralisation ... and the disciplinary regimes of power and knowledge.” Each party assumes responsibility for analysing the scientific data and for making its own assumptions.
(ii) Cross Cultural Issues
A failure to appreciate cultural differences may be fundamentally disempowering to a negotiating party. Indigenous Australians, for example, are an important interest group in environmental rulemaking. Yet, as many writers[56] have shown, they may be disadvantaged by race, geographical isolation and by a higher level of disability than that of the general population. Their language skills and level of education may be low. They are likely to have significantly different religious beliefs and behavioural patterns.[57] For example, Aboriginal peoples’ view of their cultural heritage as an intrinsic part of their self-identity is often at odds with Eurocentric definitions of heritage.
(iii) Are Power Imbalances Fatal to the Process?
Astor and Chinkin do not believe that a power imbalance is fatal to the use of mediation in the public realm. Preparation for mediation, which is essential for negotiated rulemaking, allows the mediator to address issues relating to cultural difference and power imbalance. The mediator can play an educative role and refer parties to sources of advice and support and make parties aware of their options for settlement.[58] It may be appropriate for the negotiations to be co-mediated, in which case one of the mediators may be an Aboriginal person. Clearly, where power imbalances and cultural difference are not recognised, and dealt with, negotiated rulemaking will exclude the true plurality of interests.
If it is accepted that environmental decision-making is based upon scientific uncertainty, then it must be accepted that decisions may involve irreversible ecological consequences. Cognisance of this fact has led to the inclusion of the precautionary principle as a crucial element of ecologically sustainable development.[59]
The precautionary principle, which is contained in the Rio Declaration and Agenda 21, provides that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. Indeed, Section 3 of the Australian Intergovernmental Agreement on the Environment provides that the precautionary principle should inform policy-making and program implementation. Clearly, to ensure that the consequence of settlement is not irreversible environmental degradation, the principle will be an important consideration for all parties engaged in the negotiated rulemaking process.
Judicial review is relevant to the present discussion as judges may be called upon by affected individuals to review regulations promulgated by the responsible minister. The crucial question here is – should the judiciary use its powers of review to set aside regulations that reflect the consensus of the participants in the negotiations? According to the separation of powers principle, judicial review is concerned with the legality, and not the merits, of administrative action. Thus, decisions of administrative officials will be set aside if they are not in accordance with laws enacted by a representative legislative body, like Parliament. Courts should not involve themselves in the merits of a decision since this is the preserve of the administrative branch of government. They are regarded as being illequipped to deal with the substantive policy issues at the heart of government.
It is a fundamental principle of administrative law, however, that affected individuals may approach the courts for judicial review on the ground that regulations are unreasonable. In Kruse v Johnson[61] it was held that rules are unreasonable if they are manifestly unjust, partial and unequal in their operation as between different classes, if they disclose bad faith or if they involve an oppressive or gratuitous interference with rights that is not reasonably justifiable. Moreover, in State of South Australia v Tanner,[62] the High Court held that a regulation may be ultra vires the delegated lawmaking power where it is not reasonably proportionate to the end to be achieved. However, the substantive and procedural aspects of the policy-making function are not reviewable as the High Court continues to defer to this executive function.[63]
Judicial review of administrative action has often been viewed as undemocratic. Judges are not elected and, although they deny this, they often exercise their powers in a way that intrudes into the realm of public policy. Some scholars have claimed that the courts do more democratic harm than good, as their efforts hamper the prior decisions of bodies that operate with a democratic mandate.[64] Perhaps, where rules have been negotiated, judges should be more circumspect about exercising their review powers. This is because the administration, by negotiating the rule with interested and affected parties, has engaged in a process which promotes political accountability.
At the US 1984 National Conference on Environmental Dispute Resolution Judge Wald questioned whether the courts should be more deferential to agency expertise where rules were negotiated, concluding that:
[t]he amputation of meaningful judicial review from settlement of negotiated regulation in the environmental field would make these ADR (alternative dispute resolution) techniques far less attractive to some of the parties as instrument of justice.[65]
Wald stated that, at least, where a person who was not party to the negotiations challenges the rule, the courts will still have to determine whether all the appropriate interests were involved in the negotiation. This may be an appropriate mechanism for ensuring that negotiated rulemaking does include the marginal interest groups, which a technocratic bureaucracy may have excluded. Furthermore, the court will have to ensure that the policy and regulations promote the public interest, and that the consensus of the parties does not bind the agency to do something prohibited by the law.
The value of these negotiations was questioned recently, by the US Court of Appeals in USA Group Loan Services v Riley.[66] Here, the Department of Education had used negotiated rulemaking to produce a proposed rule with regard to minimum standards of accountability for student loan servicers. Although an official in the Department had promised to respect the consensus achieved in the process, the agency ultimately rejected the proposed rule, without reasons. The court questioned the propriety of the promise made to the parties, Judge Posner holding that:
It sounds like an abdication of regulatory authority to the regulated, the full burgeoning of the interest-group state, and the final confirmation of the “capture” theory of administrative regulation.[67]
Aman[68] claims that the court did not take seriously “how significant a procedural departure this Act was from traditional notice and comment rulemaking.” He notes that the Negotiated Rulemaking Act was enacted to fundamentally change the dynamic between government and the regulated by immersing both of them more deeply in the bargaining processes that precede a final rule.[69]
Like Wald, Harter[70] believes that a rule should be sustained if it is “within the agency’s jurisdiction and actually reflects a consensus among the interested parties.” In his view, judicial review should give proper incentives to participants engaged in the rulemaking process. These include incentives to encourage relevant interest groups to participate and to encourage the agency to ensure that they are represented. The agency should also be dissuaded from unjustifiably modifying the negotiated rule. Finally, review could encourage all interests concerned with a proposed rule to inform the agency of their concerns so that appropriate action can be taken.
According to Harter, the major components of such review would include standing, the conformity of the rule with applicable statutes and the adequacy of interest representation. The determination of standing to bring the action would help to define who should be represented during the negotiation process. In deciding the question of conformity with statute, the court might defer to the negotiated determination and allow a broader statutory interpretation than under a traditional process.
With the review of interest representation, two scenarios might develop. First, if a court finds that the challenger’s interests were represented during negotiations, it may be difficult to prove that an issue, central to the rule, was not considered and that, had it been, the rule would have been significantly different. Secondly, if the court determines that the interest was not represented, it will need to determine whether participation was in some way excused. It seems clear that an overly interventionist model of judicial review could seriously undermine the postmodern enterprise proposed in this article. Harter’s model for review shows, however, that a deferential model of review might give a voice to those interests that have been marginalised in the process.
It has been argued that the 1990s represents a new era of environmental law. As scientists have come to a new understanding about the interconnectedness of all systems on the planet, so lawmakers have had to respond. At an international level, the response came at the 1992 Rio Conference where numerous instruments were developed to deal with global environmental problems. Importantly, most of these instruments recognised the need to reconnect communities to the environment.
They proposed therefore that national governments engage in participatory processes to develop responses to the Rio instruments. This article has proposed the use of negotiated rulemaking as an appropriate mechanism for engaging the community. The process is not without its difficulties. Nevertheless, it may go some way towards “defy[ing] the system, suspect[ing] all totalising thought and homogeneity and open[ing] space for the marginal, the different and the ‘other’.” It may encourage ‘flux, dispersal, plurality and localism’.”
As Reed has suggested “[e]nvironmental mediation, especially when the objective is sustainable communities, holds great promise as a vehicle for renewed public dialogue about our common fate on planet Earth.”[71]
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/25.html