A Community Guide to Using Alternative Dispute Resolution to Secure Environmental Justice

May, 2011

Part 1: Preparing for ADR

Before beginning ADR, it is important to learn as much as you can about the problem you want to solve, because your understanding will determine how you approach the entire ADR process. In fact, your definition of the problem will probably change as you do more research. This section of the handbook will lead you through this critical first step, which may require a lot of time and effort.

Understanding the problem

Begin by describing the problem. Think carefully about each of these questions and write down your answers in as much detail as possible:

Who is affected by the problem?

• Where do most of the people who are affected live and work?
• What is the race, ethnicity, income, and age of the people affected?
• Are "sensitive populations" of people (such as children, women of child-bearing age, the elderly, or people with asthma) affected? If so, roughly what percentage of the population is affected?

What are the impacts of the problem on people and the environment?

• Are people getting sick? Is quality of life affected? Are they suffering stress?
• Is there physical evidence of the problem? For example, is there an oily film on surface waters or windows? Soot in homes or on windows? Is there an unusual smell in the air? Does tap water look or taste different?

When did the problem first occur?

• How long has the community been affected?
• What are the key events in the history of the problem? Develop a chronology of events with specific dates and times, if possible.
• If you are trying to prevent a problem from occurring, how long do you have before it starts?

How are people exposed to the hazard (if your problem involves pollution)?

• What is being polluted? Pollution can enter soil, air, groundwater, or surface water bodies like lakes and streams.
• If the problem involves exposure to chemicals, how do the chemicals get from the environment to the people? Common "pathways for exposure" include touching soil, breathing air, drinking water, or eating food (such as fish from a local river or vegetables from a garden) that has been contaminated.

Once you have a definition of the problem you want to solve, think about why the problem exists in the first place. Figuring out the root causes will help you focus on possible solutions and on the problem-solving process. Consider who is responsible for causing the problem (for example, a polluting factory), and who might have prevented it (for example, a government agency).

Once you have figured out the root causes of the problem, you will be ready to start thinking about acceptable solutions. Keep a list of potential solutions and update it as you continue your research.

Getting organized

Because ADR requires a tremendous amount of work, it is essential to bring together various members of the community. One way to work together effectively is through "community-based participatory research" (CBPR). CBPR takes advantage of community knowledge and gives key roles to community members in research, problem solving, and information sharing. CBPR helps identify and take advantage of experts with the special skills needed to research and solve a particular problem. Even if your community does not start a formal ADR process, these organizing efforts and research strategies will be helpful in addressing your particular environmental issues.

Organize a steering committee. A steering committee is a group of community members who lead the research effort. The committee may also include other experts, but it is critical that community members make up a majority of the committee to ensure that the community remains in control. You can start organizing the steering committee by announcing it to the entire community through the local papers and community e-mail lists. Recruit people who share your concerns and are willing to help. Reach out to key groups, such as community development organizations, local environmental groups, the PTA, and churches or other religious institutions.

Next, recruit other experts. The appropriate partners will depend on your particular situation, but it often makes sense to start by contacting professors at local colleges. If your community group does not already have a contact at a particular college, call the school or check its website for the department that teaches environmental science or public health, to find a faculty member who has relevant expertise or is active in public service. College professors often put their biographies on the school's website, and a quick search may find someone with relevant expertise or who may suggest other experts. Professors may also have students who are available to help your organization, either for potential college credit or for the experience.

Develop "principles for collaboration" for your committee. To be clear about how you will carry out CBPR tasks (and to avoid conflict later), it is important to agree up-front on how you will work together. Your own principles for collaboration will depend on the needs and relationships in your community. Here are a few elements to consider:

• How will your committee reach decisions? Some groups require all members to agree on a decision, while others rely on majority votes.
• How will you keep the community informed at each major step in the process?
• Who will speak on behalf of the group?
• What are the rules about speaking to people from industry or government who might end up "on the other side of the table" in an ADR process? You might decide that committee members should never meet with these groups alone. Or, if representatives of your group do meet with people from industry or government, how must they consult with the rest of the group?
• How will you make decisions about spending funds?
• How often will you meet?
• Who will be primarily responsible for carrying out each task?
• Do the committee members who lead other community groups speak for those groups when they work on the committee? If the committee is a tool for forming a coalition of community groups, it can be more powerful—but there also should be a process for how the different groups work together.

Once you reach agreement on these issues, summarize your principles of collaboration in a single document, and ask each member of the steering committee to sign the document.

Collecting information

Making the case for change through an ADR process depends on having good information. For most communities, this information will come from a combination of community knowledge, technical data, and knowledge of environmental law.

Community knowledge. Community members typically have lots of information about what is going on in their neighborhood. Talk to people in the community to find out exactly how the problem is affecting them and their neighbors. Gather any photographs, videotapes, or audiotapes that help to document the problem—where it is coming from and how it is affecting people and the environment. The "Community Workbook" that is included in the supplement to this handbook, Setting the Table for Environmental Justice: A Collection of Environmental Law Materials for Communities, suggests some questions that may help you get relevant information from community members.

In addition to talking with individuals, you can hold community dialogue sessions on the problem. This is an opportunity to meet potential partners and learn more about the community's knowledge, concerns, and ideas. It is important to talk to community elders with historical knowledge of the problem, and to workers with an inside view of company operations. Conversations with parents may be especially helpful in documenting perceptions about any health impacts, including the effects on children's birth, development, or overall health.

It is important to keep written notes of information that community members share with you through community meetings and individual conversations.

Technical data. Although collecting community knowledge is important, it is also essential to gather information from many other sources. Below are some common examples of places where a community might learn more about a problem. You may come up with additional sources of research and information.

• The internet. Spend time exploring the internet to find relevant information. For example, you might learn more about a company that is causing problems by visiting that company's website. Or if you know that a specific substance, like lead, is causing health problems in your community, a Google search for "lead health effects" will connect you with a variety of resources. Your internet research will take patience and creativity.

• Government databases. The federal government collects an enormous amount of information that can help communities facing environmental problems. Appendix A, Databases Established for Environmental Laws, provides a guide to the major federal databases, which can be accessed on the internet. These databases contain, among other things, permit and enforcement records, air monitoring reports, and data about toxic emissions.

• Permits. Federal environmental laws require government-issued permits for activities relating to:

   

• Air pollution. Under the Clean Air Act (CAA), permits control what chemicals can be released into the air, how much pollution can be released, and how it must be controlled.
• Water pollution. The Clean Water Act (CWA) sets permitting standards for pollution that moves from pipes and other "point sources" into waterways.
• Waste treatment, storage, and disposal. The Resource Conservation and Recovery Act (RCRA) creates a permitting scheme for waste management.

If your environmental problem involves a specific facility, it is critical to find out what the facility is legally allowed to do and what permits may be required of it. The federal databases described above can help you find what permits a facility holds by name and location, as well as give you valuable general information about the facility and its enforcement history.
You may also contact the agency that issued the permit and request a copy. These permits are typically issued by your state's environmental agency, though in some instances they may also be issued by the U.S. EPA. You can learn more about how federal environmental laws work—and how states often administer these laws—in Environmental Laws and Alternative Dispute Resolution: Tools for Environmental Justice. Before visiting or contacting your state agency, you should develop a clear idea of what type of permit information you want to request.

• The Freedom of Information Act (also called "FOIA"). FOIA gives the public access to most information that is held by a federal government agency, as long as the information is not subject to a legal exception. To obtain these documents, you must send a written request for specific information to a federal agency. It is important to be as specific as possible about what you are looking for. More information on FOIA and a sample FOIA request letter appear in Appendix C, Sample Freedom of Information Act Request Letter.
  Additionally, each state has its own law that allows citizens to access public records in the possession of state agencies. You can find information about state laws on this website: http://www.nfoic.org/state-foi-laws.
  It may take a state or federal agency a long time to respond to a FOIA request, so you may want to use this tool at the same time that you are starting other research strategies. The information you seek may already be publicly available online through one of the databases described in Appendix A. In other cases, you may be able to get the information you need by calling or visiting the appropriate government agency offices.
• Environmental Impact Assessments. In many cases, governments analyze the environmental and public health impacts of a new facility or other type of project before it can be built. The National Environmental Policy Act (NEPA) requires federal agencies to study the environmental impacts of any major actions they plan to take, including large activities funded with federal dollars or private facilities that require federal permits. The Environmental Assessments (EAs) and Environmental Impact Statements (EISs) required by NEPA are good sources of information about the anticipated environmental impacts and options for avoiding them.
  You may be able to find an environmental impact assessment even if the facility in your community is not regulated by the federal government. Several states have laws similar to NEPA that require state agencies to consider and disclose environmental risks before permitting a project. In a few states—California, New York, Washington, and Hawaii—city and county governments must perform environmental reviews before approving certain projects.
• Records of property ownership and other property transactions. Local county and city government offices can be a rich source of public information about property ownership and transfers. You might need this information to find out who owned a facility at a particular time in the past when it caused problems, or if you are having difficulty determining who the current owner is.
  Local governments maintain this information in different ways and in different offices. For example, your town may do it through the clerk of court, a recorder, a register of deeds, etc. Some government offices make this information available online, but often you will have to visit the office in person to ensure you have the information you need. Moreover, every locality has an office that handles property information, which might include plats, deeds, mortgage documents, liens, and information on easements and rights-of-way.
• Past lawsuits. You may learn that someone else brought a lawsuit in the past against the polluter, possibly for the same problem you are facing. If so, you may be able to benefit from their efforts. Information and evidence developed in lawsuits is almost always available to the public through the files maintained by the clerk of the court in which the case was brought. In the early stages of any lawsuit, the parties use a process, known generally as "discovery," to obtain large amounts of information and evidence from each other.
  A visit to the courthouse clerk's office with a "docket number," or unique number assigned to each lawsuit, will give you access to most of these materials, which you can usually photocopy at the courthouse. It will often be easiest to begin by obtaining from the file the name and telephone number of the lawyer who brought the lawsuit, and asking if he or she can direct you to key pieces of information—and perhaps provide you with insights about the case that may not be obvious from reviewing the files.
• Whistleblowers. A whistleblower is a person, usually an employee or former employee, who reveals dishonest or illegal conduct that is happening within the government or a company. Whistleblowers with inside knowledge of the problem faced by a community are a rich source of information, but they can face very real personal and career risks. Many laws try to protect whistleblowers from retaliation by their employers for reporting violations, but, sadly, retaliation is still common. For a guide to whistleblower protections in federal laws, see http://www.dol.gov/compliance/laws/comp-whistleblower.htm.
• Local resources. Local government records can provide useful information about industrial facilities. The facility may have gone through a City Hall approval process, or complaints may have been made to the City Council about it. City Council records are generally available by visiting the Council clerk at the town hall, and some communities now post meeting agendas and minutes online.

Community-based research. Even with the wealth of information available through these sources, to prove there is a problem you may need new data that does not yet exist, such as water or air monitoring data. Communities can take the lead on efforts to study environmental and public health impacts. The resources in Appendix E, Publications and Web Resources on Community-Based Research, can help you use community-based participatory research to investigate the problems in your community.

Environmental law. Environmental laws can help you prepare for ADR in two different ways. First, as discussed above under "Technical data" and listed in Appendix A, many environmental laws require companies and government agencies to make information available to the public. Second, environmental laws set forth legal requirements that can act as "hooks" to bring a company or the government to the table and help find a resolution to your community's problem.

For more information about federal environmental laws, see Environmental Laws and Alternative Dispute Resolution: Tools for Environmental Justice, which is a supplement to this handbook.

In addition to federal environmental requirements, a state usually has other environmental laws that authorize the state department of environmental quality or another agency to regulate dangerous activities or other aspects of environmental problems. State tort laws can also be used by injured parties to sue for monetary compensation when they have been harmed by another person's wrongful acts.

At the local level, there is tremendous variation in the way city and county governments regulate environmental issues. Local government bodies such as city and county councils typically control activities through local laws, known as ordinances. When local governments have authority over decisions with environmental justice implications, it is usually through the process of zoning for or permitting industrial facilities. If you are concerned about new facility that is being planned in your neighborhood, you will want to participate as much as possible in the local permitting decisions. It will take time, and possibly some expert assistance, to research any important state or local laws that might play a role in addressing the environmental problem that you are working on.

Research potential solutions. Once you understand the problem, its cause or causes, and the relevant environmental laws, you will be in a good position to figure out how to fix it. Based on your knowledge, you can build a list of potential solutions. Your committee should not begin to advocate for any particular solution, however, before answering some key questions: Would the "solution" effectively address the problem? How much would it cost? Who has authority to make it happen? Does everyone agree that this is the right solution to pursue?

Sometimes, the experts on a problem are different from the experts on a solution. For instance, doctors and nurses might be the best experts on the problems facing communities with high asthma rates. Medical professionals can help identify research that shows how chemicals in air pollution cause asthma and the severity of the problem. They might also be experts on some types of solutions—like early medical screening and treatment. But those medical professionals may not know about the technologies available to reduce the pollution from a factory.

You will want to reach out to experts such as engineers to learn about technologies that might help. For instance, you might contact the EPA's Office of Environmental Justice (http://www.epa.gov/environmentaljustice/contact/index.html), or professors and students of environmental engineering at a local college or university.

Financial resources

Getting ready to undertake ADR does not need to be expensive. Costs often do arise from the intensive work of preparing for ADR, but you may be able to find experts and other partners who are willing to volunteer their time.

Community leaders can think creatively about how to undertake ADR at little or no cost. For instance, community groups can often hold negotiation sessions in libraries or community centers to avoid paying for meeting space. The next chapter ("Getting a Seat at the Table") offers additional advice on finding an affordable expert to help with the ADR process.

If you think you may have to hire experts or pay for anything else, you may want to apply for a grant from a government agency or a private organization. Different grant programs support different kinds of activities, so the first step is to figure out what particular programs might be able to help you. The EPA has some programs that support community-driven efforts to study the effects of pollution and improve the environment. In addition, there may be private foundations in your state that support local environmental, health, or other related community issues. Appendix F, Web Resources on Grants, can help you find grant programs that assist environmental justice communities.

Community leaders can explore several fundraising options beyond grants. Depending on the situation, you may receive financial support from individual donors, churches, or creative fundraising activities.

Putting the pieces together

Once you and your committee have collected all the information you can gather, it is time to figure out how it all fits together, and then to communicate what you have learned to the broader community. There will be a lot of information to review, think about, and organize. Here are some tips for making the leap from the preparation stage to the negotiation stage.

First, organize and analyze all the information you now have about the problem and its effects on your community. Start by bringing all of the data and information together in one place. As you review your research, ask yourself the following "big picture" questions:

• Can you draw a strong conclusion about what is causing the problem in your community?
• Has your understanding of the problem changed since you began your research?
• What are the biggest concerns?
• Can you describe precisely how severe the problem is?
• Are there any remaining gaps in your understanding of the problem?

If you are relying on experts to analyze data, it is important to talk with them and discuss the details until you have a solid understanding of the facts.

Second, compare potential solutions. You can use these questions to structure your committee's conversations about what the community needs:

• What solutions are available?
• Which is the best solution?
• What other solutions might be acceptable, assuming that you cannot obtain the best solution?
• How would you rank the possible solutions?

The community may want the landfill to close or the factory to move out of town, but these types of solutions are the most difficult to achieve—and the give-and-take of ADR probably will not obtain this kind of result. So, consider as many kinds of potential solutions as you can. For instance, there may be modern equipment that the factory could install to reduce the pollution being emitted or minimize its harmful effects. More simply, there may be new protocols that the company could adopt by way of staffing, waste disposal, changing the timing of certain events, or other methods of doing business that reduce the impact of the problem.

Once you start ADR, the other party may suggest solutions that you did not think of before. The people who own or operate a facility are likely to have expertise on possible solutions, and may have good ideas for improvement. Be wary, however, of solutions that may be cheaper or easier for the company to perform but do not adequately address community concerns; and use your own experts, if you have them, to verify the effectiveness of proposed solutions.

Third, decide whether ADR is a good tool for trying to achieve the solutions you want. Now that you have a strong understanding of the problem and possible solutions, it is time to decide whether, all things considered, an ADR process is the best tool for your community. As discussed above, ADR is attractive for many reasons. While ADR can take anywhere from a few months to a few years, it can usually help you assert your rights under the law with less time, expense, and risk than is required to bring a lawsuit. ADR also affords community members an opportunity to come up with tailor-made solutions. In contrast, often the best result you can achieve in a lawsuit is a cash payment or minimum compliance with the law. Perhaps most importantly, the ADR process never imposes an outcome on a community. If another party is uncooperative or an acceptable solution to the problem cannot be reached, the community is free to walk away and pursue other remedies.

On the other hand, ADR is not necessarily the best approach for every community and every situation. Some signs that ADR might not work for your community's problem include:

• The other party has been dishonest or has acted in such a way that suggests a lack of commitment to working with you in good faith.
• There is only one solution, such as closing the offending facility, that will resolve the problem, but it is unlikely other parties will agree to that solution through a voluntary ADR process.
• You need something to change very quickly, perhaps because residents or the environment are facing serious, immediate danger.
• There are no agreed-upon, trusted leaders who can credibly speak for the community as a whole, or there are deep divisions within the community on some aspect of the problem or the best way to resolve it.
• Any agreement you reach could affect people who are not participating in the ADR process.
• Most members of your community have determined that litigation is the only way to meet their needs.

Even if you decide not to pursue an ADR approach, all of your research and preparation can help you with other strategies that your community may wish to try.

One tool that can be used to help decide whether ADR is viable for your community is a convening. Usually, a convening involves asking a neutral to meet with all known parties to a dispute, to assess whether it makes sense for them to attempt to resolve their differences through ADR. Often the convening will result in a written report indicating the neutral's assessment of whether an ADR process would be appropriate. The neutral can also help you understand the different forms of ADR and identify all the groups that should be involved with an ADR process. Hopefully, you will also get a sense from the convening as to whether the parties can communicate honestly and find common ground. EPA may be able to help you organize a convening for free. See http://www.epa.gov/adr/cprc_adrcontacts.html for contact information of the ADR specialist in each EPA region.

When thinking through how to respond to the environmental problem facing your community, be aware that private companies may respond aggressively when they think a community group is attempting to constrain their business activities. They may believe that an aggressive initial posture might scare away the community activists before a movement can grow. In some cases they may even bring litigation against a community group. For more information, you can get a free copy of Strategic Lawsuits Against Public Participation (SLAPPS): A Guide for Community Residents and Environmental Justice Activists at ELI's website: http://www.eli.org/research-report/strategic-lawsuits-against-public-participation-slapps-guide-community-residents-a-0.

Finally, confirm community support before you try to initiate ADR. As a community leader, you already understand that community support and agreement are essential. You will be more likely to get a seat at the table—and be a more effective negotiator—if the community stands with you. In addition, engaged community members can help you spot any problems with your approach and improve your strategy. Some communities may be wary of ADR because of previous bad experiences with court-ordered arbitration, so it may help to show how the community can take a leading role in the ADR process and in any solutions coming from it.

Part 2 »