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Resolving environmental regulatory disputes
ENVIRONIMPACTASSESSREV 1985:5:383-388
383
BOOK REVIEWS
Resolving Environmental Regulatory Disputes Lawrence Susskind, Lawrence Bacow, and Michael Allen Wheeler, Schenkman Pub-
lishing Co., Cambridge, Massachusetts, 1983
Reviewed by JOHN
FORESTER
Associate Professor, Department of City and Regional Planning, Cornell University, Ithaca, New York.
This is an important book for all those interested in environmental politics and regulation and, indeed, in public administration, public policy and planning more generally. Resolving Environmental Regulatory Disputes is a collection of seven case studies. The cases involve complex political and regulatory disputes concerning issues such as water policy and dam construction in Colorado, power plant fuel conversion in Massachusetts, power plant construction in Montana, regional growth management in Wyoming, industrial waste disposal in Tennessee, and regulatory rule-setting in the EPA itself. The case descriptions include background information, chronologies, and analysis; the complexities of the disputed issues are presented in substantial detail. The editors have worked hard to organize the case material so readers lose sight neither of the substantive issues at hand nor of the more processual negotiation and mediation strategies employed by participants in each dispute's resolution. Rather than summarize one inlricate case to provide an example, in the brief space of this review I will first suggest some lessons that readers may learn, as I did, from this book, and second consider then some of the difficult issues that the book leaves unresolved.
LESSONS No one who reads this book can fail to appreciate the possibilities that conflicts can be managed, structured, anticipated and negotiated, rather than avoided, suppressed, denied, or otherwise wished away by various public and private actors. Yet just how a particular conflict might be managed is always an empirically open question. Especially in cases of conflict in which no one party may clearly prevail, the possible contributions of mediation and negotiation are most interesting. What then might we learn from the deliberate structuring of conflict that is reflected in mediation and negotiation processes? These environmental cases make clear that disputes involve two related, but separable, components: I) issue content, involving conflicts about a range of substantive matters (particulate levels, adequacy of tidal flushing, and so on), and 2) participants' relation-
© 1985ElsevierSciencePublishingCo., Inc. 52 VanderbiltAvenue,New York, NY 113017
0195-9255/85/$3.30
384
BOOK REVIEWS
ships, involving the quality of the relations among a variety of interested actors. Content is disputed when one participant argues that burning high sulfur coal will increase ambient levels of local particulates above a certain thresholds, and another participant denies that claim. In the Brayton Point power plant case, resolving such a technical "content" issue allowed substantial progress in ensuing negotiations. Relationships, on the other hand, are at stake when parties dismiss one another's claims, distrust the mediator, or fail to abide by their own agreements. In case after case here, the personal qualities of participants in the negotiation processes were significant. Distinguishing content and relationship aspects (problem and people aspects, in Fisher and Ury's terms) of dispute resolution processes leads to several opportunities for all parties. Exploring the "content" side poses the possibility of finding "joint gains." Such "win-win" gains are rarely obvious in the beginning. To take another example from Brayton Point, a technical study of particulates enabled the EPA to adjust its demands, thus allowing settlement options unforeseen as feasible at the negotiation's start. Effective mediators may make significant contributions by carefully uncovering participant's interests and conceivable options. With such an expanded reformulation of initial positions and possible outcome packages, bargaining to reach joint gains may then be realized. Such outcomes may or may not actually exist; mediated negotiations at least organize the search for them. On the "relationship" side of mediated negotiations, face-to-face meetings of the disputants in these cases generated increased levels of trust that turned out not to be incidental by-products but essential conditions that made real settlements possible. Communication skills are similarly essential--not to replace, solve, or efface political differences but to allow such differences to be articulated clearly, forcefully, sensitively as well. Trust and communication make cooperatively achieved conflict resolution possible; in their absence we may have status quo posturing with gains likely only for those already most powerful. The dispute resolution processes described in this collection also suggest lessons regarding: 1) the creation of consent, 2) agenda-setting by participants, 3) participants' learning, and 4) the ubiquity of conflict in public policy contexts. Consider each briefly. Without joint consent, negotiated settlements cannot be reached. These cases suggest that external, quasi-independent parties can play a large role in the creation of consent: such outside parties may suggest alternatives, perform technical studies, reflect applicable precedents in related cases, and so on. Both A and B may find it easier to agree with C than with each other----even if it comes to the same thing once both agree with C. Timing can be crucial to the success of negotiation. In several cases reported here, negotiations were able to proceed once mediators managed to postpone debate about particular issues that seemed irresolvable early on. In the Brayton Point case, for example, subsequent findings ultimately settled the earlier sticking point (burning a $9 million high sulfur coal reserve) that had threatened to stop the entire process. Agenda-setting counts. The very richness of these cases suggest that policy conflicts are not easily circumscribed and defined. Regulators, finns, and environmentalists have many interests; regulatory issues are multidimensional; public and private roles are complex and multi-faceted. Private firms, for example, may want not only to reap profits but to maintain stable relations with regulators, manage competition, maintain public image, balance short term verus long term gains, and so on. The cases reported here suggest that all participants, the organized and relatively unorganized as well, learn more about their own interests
BOOKREVIEWS
385
and others' interests as a result of the negotiation process. If dispute resolution efforts may in part be public learning processes for many participants, then planners, policy analysts, and students of public policy more generally have good reason to pay careful attention to the underlying organizational, social and political mechanisms at work. The same complexity of roles, interests, and issues suggests that conflict in public policy contexts is ubiquitous and not isolated. If this is true, then issues of conflictresolution deserve a central place in the curriculum of all programs training environmental planners, public administrators, policy analysts, program managers, and related professionals. Resolving Environmental Regulatory Disputes shows the power of ad-hoc negotiations that may supplement existing administrative, legislative, or judicial processes. From these environmental cases, we need only take a single step further to see that questions of conflict resolution occur routinely in many contexts of professional policyrelated practice. The educational and practical implications of this collection extends, then, far beyond environmental regulatory disputes. Consider now, though, several troubling problems raised by such dispute-resolution approaches.
PROBLEMS This collection of cases raises disturbing questions no less than it promises practical lessons for conflict resolution. Readers will (unfortunately) not be surprised to learn as they review these cases that the powerful remain powerful after the various negotiation strategies described here are employed. The questions that follow, of course, are: "how powerful? Still more powerful? Are the relatively powerless (yet affected) made any more powerful as a result of these dispute resolution processes?" These are not easy questions to answer; it seems neither that the powerful will always become stronger as a result of negotiation nor that the relatively powerless will always suffer. If both sides make gains, what then? This ambiguity alone should fuel interest in the processes. A passage desribing the outcome of the Foothills water treatment project case in Colorado illustrates the problems here: although few of the parties were completely pleased with the outcome, they all agreed that they had achieved a 'workable' solution and, in fact, that it was as good as or better than they were likely to achieve otherwise. The environmentalists and the EPA still wish they had been able to stop the project altogether; but most members of both groups believe that the political power of the DWB (Denver Water Board) was so overwhelming that such an outcome was virtually impossible. Therefore, the most the environmentalists could reasonably have hoped for was an extensive impact mitigation and compensation program, which they won (RERD, p. 204). This passage simultaneously captures much of the appeal and the ambiguity of mediated negotiation processes concerning environmental disputes. What's appealing? The process promises realism: the parties were not pleased, but they felt they'd achieved a workable solution. The process promises pragmatic benefits: the parties felt that the final result was as good or better than anything they might otherwise have achieved. In this process, even the losers may Win something: the EPA and the environmentalists did better than losing the war while gaining reparations; they circumscribed the battlefield, limiting and mitigating impacts. Compared to what might have happened (more on this below), even the losers seem to have made some desirable gains.
386
BOOK REVIEWS
BETTER THAN WHAT? Yet there are problems here too. First, when we compare an outcome to what might have been achieved otherwise, just how do we assess that counterfactual outcome, that array of otherwise possible resolutions? Second, assessments of mediated negotiations cannot avoid discussing the role of political power. Consider each of these problems in turn. In any particular case, knowing "what might otherwise have happened" calls for difficult political judgments. Superficially, mediated negotiations seem to promise direct gains, especially when interested parties are all reluctant to go to court, to spend years in costly legal battles which may or may not address many key issues at hand. Yet to ask any party point-blank at the end of a negotiation process, "what else might have happened?" is to pose a question no less mind boggling than that asking the same disputant at the beginning of the process to predict the likely outcome of the complex negotiation. The transformative character of the negotiation process, its character as a learning process for all involved, means that early predictions of outcomes are precisely those outcome estimations that will be altered, substantially refined" and reformulated. If this is true, two results follow. First, we should hardly be surprised that participants in a negotiated settlement will prize their settlement over their estimates of likely alternative outcomes. Second, though, we should not put too much stock in those estimates. We should indeed discount those estimates of the alternatives foregone as heavily as we might have discounted the disputants' original estimates of what was likely to emerge via the negotiation process. Precisely because a negotiation process teaches all participants, surfaces hidden alternatives, uncovers possible but hardly obvious trades, the negotiated outcome must be compared, if it is to be evaluated, with other equally complex outcomes, outcomes likely to be imperceptible to any single disputant. This point is a backhanded compliment to the negotiation process; it acknowledges its sophistication but then seeks to compare its results to equally sophisticated alternatives. The Colorado Foothills water project negotiation is a case in point. The conclusion of the case history is quite ambivalent; it first refers to the settlement as "better than any alternatives that were possible," yet it concludes.by noting, "Conservation as an alternative to Foothills deserved serious consideration that it did not receive in the course of the d i s p u t e . . , it is possible that the region's interests might have been better served by a stronger conservation plan" (pp. 212-213). Notice that there are two voices here, one taking the perspective of the disputants who finally reached a settlement, the other taking the perspective of an analytical observer noting yet other "possible" outcomes. Here is the rub. We cannot evaluate a negotiated settlement simply in terms of the alternative outcomes that disputants think "possible" (or "just not feasible")--precisely because the power of the negotiation process itself is to change disputants' senses of the possible and impossible, the feasible and infeasible. The disputants' satisfaction is of course one component of an evaluation, but only one~ Analysts must compare negotiated outcomes to the possible results of other complex political processes that might also transform the disputants' senses of possibility and feasible bargains. In the Foothills case, for example, might public exposure of the power of the Denver Water Board have resulted not only in mitigation measures but in a more educated, even "empowered" public as well? Such questions are difficult to answer, but they must be asked. Seeking to answer them will call for comparative research, studies comparing similar issues approached with
BOOKREVIEWS
387
a range of politicized, litigated, and negotiated strategies. Only then may we be more clear about the actual outcomes that might otherwise have been achieved. The disputants' crystal-ball gazing judgment is not an appropriate measure (however significant their satisfication may be). The recognition of inequalities of political power is also central to our understanding of dispute resolution processes. Should we understand mediated negotiation as a strategy to produce egalitarian outcomes, or is it rather an utilitarian strategy by which all participants may seek to maximize gains? This book suggests that the second may be closer to the truth than the first, but that is no small feat. Egalitarian outcomes seem beyond the reach of this strategy, given the enormous differences in power that may set the stage upon which the disputants meet. Yet formal equity considerations are hardly irrelevant, for the question must be asked: does a mediated negotiation process leave the powerless (e.g., generations yet unborn) worse off than they might otherwise have been? The answer to this question is by no means obviously "yes"; indeed, the burden is on the critics of such processes to show how, realistically, given substantial initial differences of power, the relatively powerless might still have done better. Since the participation of all parties is voluntary, as advocates of negotiation will quickly point out, any disputant confident about getting a better deal elsewhere is free to leave. Presumably this holds for representatives of the unborn as well, but problematically. At a minimum, negotiated settlements seem in some cases to present opportunities for the relatively powerless, often citizen and environmental organizations, for example, to improve their lot. In the absence of strategic alternatives in a given setting, mediated negotiations may provide a means for such groups to defend themselves. At other times, of course, the somewhat ad-hoc (noninstitutionalized), unpublicized character of the negotiation process might threaten to weaken the relatively powerless further--but then they need not join the negotiation process. Treating unequal participants equally, mediated negotiations may reproduce inequalities, but solve problems to the participants satisfaction as well. That is more than can often be said of disputants' legal alternatives. In a society riddled with inequalities of power, mediated negotiation assures neither equality nor equity. Yet these cases demonstrate that negotiated settlements promise gains for all disputants when the courts seem unworkable, when issues are highly complex and multidimensional, when power relations are not so lopsided than one disputant can simply walk away from the negotiating table. These problems of power and feasible alternatives might lead us then to an ambivalent appreciation of mediated negotiations in environmental disputes. Resolving Environmental Regulatory Disputes provides a rich array of case material showing the detailed evolution of particular regulatory negotiations, the strategies employed by various disputants, the creation of novel alternatives unseen initially by any party, the significance of the mediator's role in promoting trust, maintaining momentum, segmenting discussions, appreciating and gauging the timing of discussions, and so on. Read in tandem with an introductory primer such as Roger Fisher's and William Ury's Getting to Yes, (Penguin 1981), this book shows vividly, in almost too much detail, the use of a handful of practical negotiating principles. After reading these cases, readers cannot fail to appreciate the importance of (1) exploring disputants' interests rather than focusing narrowly upon original positions, (2) distinguishing the content of issues at hand from the interpersonal relationships between the parties, and (3) appealing to outside, mutually agreed upon, thus legitimated, sources of opinion and evidence.
388
BOOK REVIEWS
This book is no panacea for environmental disputes and its editors do not present it as one, Yet the real contribution of the book is to focus upon cases of conflict and to force our attention to the various ways that conflict may be faced, negotiated, managed, and structured, rather than avoided or simply shunted off to the courts. Especially for those concerned with the interests of the mute, the unorganized, the unborn, with the quality of the environment and the quality of life in the longer term, this book provides both a lesson and then a practical challenge: suggesting ways to resolve disputes in the short term, the book will stimulate many readers to attempt to formulate alternative and refined strategies, some no doubt building on negotiation strategies, to address the longer term as well. So far, far too few planning strategies have been able to do that.
383
BOOK REVIEWS
Resolving Environmental Regulatory Disputes Lawrence Susskind, Lawrence Bacow, and Michael Allen Wheeler, Schenkman Pub-
lishing Co., Cambridge, Massachusetts, 1983
Reviewed by JOHN
FORESTER
Associate Professor, Department of City and Regional Planning, Cornell University, Ithaca, New York.
This is an important book for all those interested in environmental politics and regulation and, indeed, in public administration, public policy and planning more generally. Resolving Environmental Regulatory Disputes is a collection of seven case studies. The cases involve complex political and regulatory disputes concerning issues such as water policy and dam construction in Colorado, power plant fuel conversion in Massachusetts, power plant construction in Montana, regional growth management in Wyoming, industrial waste disposal in Tennessee, and regulatory rule-setting in the EPA itself. The case descriptions include background information, chronologies, and analysis; the complexities of the disputed issues are presented in substantial detail. The editors have worked hard to organize the case material so readers lose sight neither of the substantive issues at hand nor of the more processual negotiation and mediation strategies employed by participants in each dispute's resolution. Rather than summarize one inlricate case to provide an example, in the brief space of this review I will first suggest some lessons that readers may learn, as I did, from this book, and second consider then some of the difficult issues that the book leaves unresolved.
LESSONS No one who reads this book can fail to appreciate the possibilities that conflicts can be managed, structured, anticipated and negotiated, rather than avoided, suppressed, denied, or otherwise wished away by various public and private actors. Yet just how a particular conflict might be managed is always an empirically open question. Especially in cases of conflict in which no one party may clearly prevail, the possible contributions of mediation and negotiation are most interesting. What then might we learn from the deliberate structuring of conflict that is reflected in mediation and negotiation processes? These environmental cases make clear that disputes involve two related, but separable, components: I) issue content, involving conflicts about a range of substantive matters (particulate levels, adequacy of tidal flushing, and so on), and 2) participants' relation-
© 1985ElsevierSciencePublishingCo., Inc. 52 VanderbiltAvenue,New York, NY 113017
0195-9255/85/$3.30
384
BOOK REVIEWS
ships, involving the quality of the relations among a variety of interested actors. Content is disputed when one participant argues that burning high sulfur coal will increase ambient levels of local particulates above a certain thresholds, and another participant denies that claim. In the Brayton Point power plant case, resolving such a technical "content" issue allowed substantial progress in ensuing negotiations. Relationships, on the other hand, are at stake when parties dismiss one another's claims, distrust the mediator, or fail to abide by their own agreements. In case after case here, the personal qualities of participants in the negotiation processes were significant. Distinguishing content and relationship aspects (problem and people aspects, in Fisher and Ury's terms) of dispute resolution processes leads to several opportunities for all parties. Exploring the "content" side poses the possibility of finding "joint gains." Such "win-win" gains are rarely obvious in the beginning. To take another example from Brayton Point, a technical study of particulates enabled the EPA to adjust its demands, thus allowing settlement options unforeseen as feasible at the negotiation's start. Effective mediators may make significant contributions by carefully uncovering participant's interests and conceivable options. With such an expanded reformulation of initial positions and possible outcome packages, bargaining to reach joint gains may then be realized. Such outcomes may or may not actually exist; mediated negotiations at least organize the search for them. On the "relationship" side of mediated negotiations, face-to-face meetings of the disputants in these cases generated increased levels of trust that turned out not to be incidental by-products but essential conditions that made real settlements possible. Communication skills are similarly essential--not to replace, solve, or efface political differences but to allow such differences to be articulated clearly, forcefully, sensitively as well. Trust and communication make cooperatively achieved conflict resolution possible; in their absence we may have status quo posturing with gains likely only for those already most powerful. The dispute resolution processes described in this collection also suggest lessons regarding: 1) the creation of consent, 2) agenda-setting by participants, 3) participants' learning, and 4) the ubiquity of conflict in public policy contexts. Consider each briefly. Without joint consent, negotiated settlements cannot be reached. These cases suggest that external, quasi-independent parties can play a large role in the creation of consent: such outside parties may suggest alternatives, perform technical studies, reflect applicable precedents in related cases, and so on. Both A and B may find it easier to agree with C than with each other----even if it comes to the same thing once both agree with C. Timing can be crucial to the success of negotiation. In several cases reported here, negotiations were able to proceed once mediators managed to postpone debate about particular issues that seemed irresolvable early on. In the Brayton Point case, for example, subsequent findings ultimately settled the earlier sticking point (burning a $9 million high sulfur coal reserve) that had threatened to stop the entire process. Agenda-setting counts. The very richness of these cases suggest that policy conflicts are not easily circumscribed and defined. Regulators, finns, and environmentalists have many interests; regulatory issues are multidimensional; public and private roles are complex and multi-faceted. Private firms, for example, may want not only to reap profits but to maintain stable relations with regulators, manage competition, maintain public image, balance short term verus long term gains, and so on. The cases reported here suggest that all participants, the organized and relatively unorganized as well, learn more about their own interests
BOOKREVIEWS
385
and others' interests as a result of the negotiation process. If dispute resolution efforts may in part be public learning processes for many participants, then planners, policy analysts, and students of public policy more generally have good reason to pay careful attention to the underlying organizational, social and political mechanisms at work. The same complexity of roles, interests, and issues suggests that conflict in public policy contexts is ubiquitous and not isolated. If this is true, then issues of conflictresolution deserve a central place in the curriculum of all programs training environmental planners, public administrators, policy analysts, program managers, and related professionals. Resolving Environmental Regulatory Disputes shows the power of ad-hoc negotiations that may supplement existing administrative, legislative, or judicial processes. From these environmental cases, we need only take a single step further to see that questions of conflict resolution occur routinely in many contexts of professional policyrelated practice. The educational and practical implications of this collection extends, then, far beyond environmental regulatory disputes. Consider now, though, several troubling problems raised by such dispute-resolution approaches.
PROBLEMS This collection of cases raises disturbing questions no less than it promises practical lessons for conflict resolution. Readers will (unfortunately) not be surprised to learn as they review these cases that the powerful remain powerful after the various negotiation strategies described here are employed. The questions that follow, of course, are: "how powerful? Still more powerful? Are the relatively powerless (yet affected) made any more powerful as a result of these dispute resolution processes?" These are not easy questions to answer; it seems neither that the powerful will always become stronger as a result of negotiation nor that the relatively powerless will always suffer. If both sides make gains, what then? This ambiguity alone should fuel interest in the processes. A passage desribing the outcome of the Foothills water treatment project case in Colorado illustrates the problems here: although few of the parties were completely pleased with the outcome, they all agreed that they had achieved a 'workable' solution and, in fact, that it was as good as or better than they were likely to achieve otherwise. The environmentalists and the EPA still wish they had been able to stop the project altogether; but most members of both groups believe that the political power of the DWB (Denver Water Board) was so overwhelming that such an outcome was virtually impossible. Therefore, the most the environmentalists could reasonably have hoped for was an extensive impact mitigation and compensation program, which they won (RERD, p. 204). This passage simultaneously captures much of the appeal and the ambiguity of mediated negotiation processes concerning environmental disputes. What's appealing? The process promises realism: the parties were not pleased, but they felt they'd achieved a workable solution. The process promises pragmatic benefits: the parties felt that the final result was as good or better than anything they might otherwise have achieved. In this process, even the losers may Win something: the EPA and the environmentalists did better than losing the war while gaining reparations; they circumscribed the battlefield, limiting and mitigating impacts. Compared to what might have happened (more on this below), even the losers seem to have made some desirable gains.
386
BOOK REVIEWS
BETTER THAN WHAT? Yet there are problems here too. First, when we compare an outcome to what might have been achieved otherwise, just how do we assess that counterfactual outcome, that array of otherwise possible resolutions? Second, assessments of mediated negotiations cannot avoid discussing the role of political power. Consider each of these problems in turn. In any particular case, knowing "what might otherwise have happened" calls for difficult political judgments. Superficially, mediated negotiations seem to promise direct gains, especially when interested parties are all reluctant to go to court, to spend years in costly legal battles which may or may not address many key issues at hand. Yet to ask any party point-blank at the end of a negotiation process, "what else might have happened?" is to pose a question no less mind boggling than that asking the same disputant at the beginning of the process to predict the likely outcome of the complex negotiation. The transformative character of the negotiation process, its character as a learning process for all involved, means that early predictions of outcomes are precisely those outcome estimations that will be altered, substantially refined" and reformulated. If this is true, two results follow. First, we should hardly be surprised that participants in a negotiated settlement will prize their settlement over their estimates of likely alternative outcomes. Second, though, we should not put too much stock in those estimates. We should indeed discount those estimates of the alternatives foregone as heavily as we might have discounted the disputants' original estimates of what was likely to emerge via the negotiation process. Precisely because a negotiation process teaches all participants, surfaces hidden alternatives, uncovers possible but hardly obvious trades, the negotiated outcome must be compared, if it is to be evaluated, with other equally complex outcomes, outcomes likely to be imperceptible to any single disputant. This point is a backhanded compliment to the negotiation process; it acknowledges its sophistication but then seeks to compare its results to equally sophisticated alternatives. The Colorado Foothills water project negotiation is a case in point. The conclusion of the case history is quite ambivalent; it first refers to the settlement as "better than any alternatives that were possible," yet it concludes.by noting, "Conservation as an alternative to Foothills deserved serious consideration that it did not receive in the course of the d i s p u t e . . , it is possible that the region's interests might have been better served by a stronger conservation plan" (pp. 212-213). Notice that there are two voices here, one taking the perspective of the disputants who finally reached a settlement, the other taking the perspective of an analytical observer noting yet other "possible" outcomes. Here is the rub. We cannot evaluate a negotiated settlement simply in terms of the alternative outcomes that disputants think "possible" (or "just not feasible")--precisely because the power of the negotiation process itself is to change disputants' senses of the possible and impossible, the feasible and infeasible. The disputants' satisfaction is of course one component of an evaluation, but only one~ Analysts must compare negotiated outcomes to the possible results of other complex political processes that might also transform the disputants' senses of possibility and feasible bargains. In the Foothills case, for example, might public exposure of the power of the Denver Water Board have resulted not only in mitigation measures but in a more educated, even "empowered" public as well? Such questions are difficult to answer, but they must be asked. Seeking to answer them will call for comparative research, studies comparing similar issues approached with
BOOKREVIEWS
387
a range of politicized, litigated, and negotiated strategies. Only then may we be more clear about the actual outcomes that might otherwise have been achieved. The disputants' crystal-ball gazing judgment is not an appropriate measure (however significant their satisfication may be). The recognition of inequalities of political power is also central to our understanding of dispute resolution processes. Should we understand mediated negotiation as a strategy to produce egalitarian outcomes, or is it rather an utilitarian strategy by which all participants may seek to maximize gains? This book suggests that the second may be closer to the truth than the first, but that is no small feat. Egalitarian outcomes seem beyond the reach of this strategy, given the enormous differences in power that may set the stage upon which the disputants meet. Yet formal equity considerations are hardly irrelevant, for the question must be asked: does a mediated negotiation process leave the powerless (e.g., generations yet unborn) worse off than they might otherwise have been? The answer to this question is by no means obviously "yes"; indeed, the burden is on the critics of such processes to show how, realistically, given substantial initial differences of power, the relatively powerless might still have done better. Since the participation of all parties is voluntary, as advocates of negotiation will quickly point out, any disputant confident about getting a better deal elsewhere is free to leave. Presumably this holds for representatives of the unborn as well, but problematically. At a minimum, negotiated settlements seem in some cases to present opportunities for the relatively powerless, often citizen and environmental organizations, for example, to improve their lot. In the absence of strategic alternatives in a given setting, mediated negotiations may provide a means for such groups to defend themselves. At other times, of course, the somewhat ad-hoc (noninstitutionalized), unpublicized character of the negotiation process might threaten to weaken the relatively powerless further--but then they need not join the negotiation process. Treating unequal participants equally, mediated negotiations may reproduce inequalities, but solve problems to the participants satisfaction as well. That is more than can often be said of disputants' legal alternatives. In a society riddled with inequalities of power, mediated negotiation assures neither equality nor equity. Yet these cases demonstrate that negotiated settlements promise gains for all disputants when the courts seem unworkable, when issues are highly complex and multidimensional, when power relations are not so lopsided than one disputant can simply walk away from the negotiating table. These problems of power and feasible alternatives might lead us then to an ambivalent appreciation of mediated negotiations in environmental disputes. Resolving Environmental Regulatory Disputes provides a rich array of case material showing the detailed evolution of particular regulatory negotiations, the strategies employed by various disputants, the creation of novel alternatives unseen initially by any party, the significance of the mediator's role in promoting trust, maintaining momentum, segmenting discussions, appreciating and gauging the timing of discussions, and so on. Read in tandem with an introductory primer such as Roger Fisher's and William Ury's Getting to Yes, (Penguin 1981), this book shows vividly, in almost too much detail, the use of a handful of practical negotiating principles. After reading these cases, readers cannot fail to appreciate the importance of (1) exploring disputants' interests rather than focusing narrowly upon original positions, (2) distinguishing the content of issues at hand from the interpersonal relationships between the parties, and (3) appealing to outside, mutually agreed upon, thus legitimated, sources of opinion and evidence.
388
BOOK REVIEWS
This book is no panacea for environmental disputes and its editors do not present it as one, Yet the real contribution of the book is to focus upon cases of conflict and to force our attention to the various ways that conflict may be faced, negotiated, managed, and structured, rather than avoided or simply shunted off to the courts. Especially for those concerned with the interests of the mute, the unorganized, the unborn, with the quality of the environment and the quality of life in the longer term, this book provides both a lesson and then a practical challenge: suggesting ways to resolve disputes in the short term, the book will stimulate many readers to attempt to formulate alternative and refined strategies, some no doubt building on negotiation strategies, to address the longer term as well. So far, far too few planning strategies have been able to do that.