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Shall We Fight or Will We Finish - Environmental Dispute Resolution in a Litigious Society

NCJ Number
C E Dinkins
Date Published
20 pages
Relying on the court system to deal with the massive number of disputes under the farreaching environmental statutes enacted during the past 2 decades will not work; alternative forms of dispute resolution should be increasingly used in environmental disputes.
Laws have become more numerous and more complex, resulting in the dramatic expansion of accompanying regulatory regimes. A corresponding increase has occurred in the amount of environmental litigation involving Justice Department environmental enforcement attorneys. Although litigation is an important tool in resolving ambiguities, apparently irreconcilable provisions, and indefinite statutory standards, it is a cumbersome and inefficient mechanism for dealing with facts. Thus, alternative dispute resolution could be of great use in helping resolve factual disputes once litigation has interpreted the requisite legal framework provided by Congress. Settlement through face-to-face discussions is perhaps the oldest and most often used alternative to litigation. This approach is being increasingly used in environmental enforcement. The use of an integrated enforcement scheme with substantial incentives for settlement has proven successful in the Corps of Engineers' enforcement of Section 404 of the Clean Water Act. Other agencies have also used a sequential and flexible approach to settlement. Mediation and arbitration have been used as well, although the injection of a third party when the Federal Government is involved raises substantial legal concerns. The administrative court option has also been used.