Environmental Justice“from claiming to creating

through ADR”

Harsha Fernando Attorney-at-Law

Consultant, ADB - Sri Lankan Resident MissionNegotiation & Mediation Trainer

harshafdo@yahoo.com

My point

• Be the change we want to see and use the best process that helps you to do so. (from legal justice to justice)

• “Justice is conflict” – Stuart Hampshire • There are no “winners” in environmental

“cases”• “If there is a way, there is more will”

Continuum of Conflict Management & Resolution Processes

Conflict avoidance

Informal Discussion & problem solving

Negotiations

Mediation

Judicial Decision

LegislativeDecision Non violent

action

Violence

Arbitration

Private decision makingby parties

Private third partydecisionmaking

Public (Legal) third partydecision making

Extra legal coerceddecisionmaking

Administrativedecisions

Increased coercion and likelihood of win-loose outcome

Adopted from Christopher Moore; “The Mediation Process”

If “Yes” If “No”

INTERESTS

OPTIONS

CRITERIA

COMMUNICATION RELATIONSHIP

COMMITMENT ALTERNATIVES

Operational framework for mediation

Adopted by Sea-Change Partners (Pvt) Ltd based on “Getting to Yes”; Fisher & Ury

Operational framework for mediation• Communications

– All Information beyond evidence (factual & emotional)– From “hearing both sides” (audi alteram partem) to

“understanding all sides” (All stakeholders consulted (not merely parties)

– Framed broadly instead of too narrowly (in legal proceedings)– Empathetic inquiry instead of adversarial advocacy

• Relationships– From “parties to the conflict” to “stakeholders in a process”– Bringing together multiple parties with wide discrepancies in

power and resources– Move towards “shared vision” (e.g. intergenerational equity)– Process enhances relationships (win-win)– Building social capital

• Interests– Brings out the needs AND fears (being heard a key interest)– Penetrates power and positions and gets to real interests– Explores common and joint interests (instead of choosing)– More interests more options more value

• Options– Value creating opportunities instead of zero sum games (creating value

before claiming)– Innovative solutions (beyond legal pleadings). All options considered and

the best selected– Trade-offs and Joint gains

• Criteria– Equity more than Rule of law– Joint fact finding, assessments and common criteria (from “either/or” to

“what is best”) instead of limiting to “winner’s set of expert evidence”

Operational framework for mediation

• Alternatives– Less likely to engage in disruptive behavior– Ability to assess respective “Alternatives” in the

light of environmental considerations• Commitment– “Persuaded” instead of “coerced”. – Self implementing sustainable agreements (to

realize the “shared vision”)

Operational framework for mediation

Mediation as a process• Not only an “alternative process” but a different

approach/paradigm

• Interventions before its too late; upstream (policy making & planning) as well as downstream (once disputes have arisen)

• Contextualized systemized

BUT

• ADR: “Substitute” or “Complementer” or “parallel” to court processes - Different dynamics.

• Is not best for “legal justice”.

• Mediation ends where adjudication begins

Environmental Justice

• Can it be diagnosed from a legal angle?

– At the very least a very broad concept combining legal, regulatory, administrative & constitutional paradigms.

• Environmental Justice “debate is about the very foundation of life”

• “Justice is conflict” – Stuart Hampshire, British Social Philosopher (1914 – 2004)

• (Environmental) conflict (leads to) environmental justice (?)

The Court’s Response

• Polluter pays

• Standing in PIL

• Precautionary principle

• Intergenerational equity and “trust”

• Principles of non regression (constitutional paradigm)

• Innovative remedies Writ of Kalikasan

• Activism for change (& for status quo) (Protagonist Judge)

• Specialized Courts (policy)

Within the limits of…• Environment is still seen as “public Policy /

administrative discretion” sphere (outside judicial intervention) - Confrontation with political and policy arena

• Scientific and technical complexity (unclear of what is to be decided exactly)

• Inability to offer injunctive reliefs and quick responses

• More emphasis on procedural justice (due process) when compared to distributive, restorative and therapeutic justice

• Environmental law skewed in the civil and political rights sphere (maximizing rights)

More challenges

• Civil rights protect minority/individual from majority environmental rights protect majority from the actions of a few (mostly)

• Environmental law has the difficult issue of causation and risk impact (remoteness)

• Paradigm to maintain our life style some sort of environmental degradation is acceptable

• Protecting authority (CEA) is within the executive leading to regulatory capture (as against an independent judiciary for civic rights)

Two thoughts • “Larger and more immediate the prospect for

material gain, the greater the political power to use to ensure and expedite exploitation because not to exploit is perceived as loosing the opportunity to someone else”.

• “If we are going to protect the planet, we are going to need to find alternatives to the consumerist dream that is attracting the world. …. how will we avoid setting people against each other when resources are depleted”

Chris Maser & Carol A Polio – “Resolving Environmental Conflicts”; 2nd Ed.

New Paradigm For Environmental Justice

• Intergenerational Equity “children of today, tomorrow and beyond are parties to every environmental conflict that takes place”

• Everything is connected to everything else (ecosystem) with global implications

• Solar is the only free energy

• Historically communities sustained through changing environments by moving Now, no place left to go

• “Winners curse” (in environmental disputes) Vs shared vision for the future

Adopted from Chris Maser & Carol A Polio – “Resolving Environmental Conflicts”; 2nd Ed.

“Environmental conflict” to “Environmental Justice”

Diagnosis Process

ConflictOur material

desires versus sustainable

capacity of the environment

(perceived threat to survival)

Justice (human point of

view) “we owe

something to everyone

sharing the planet with us”

“Process is the human bridge between justice and peace”Prof. Carrie Menkel-Meadow (on Dispute Resolution and Civil Procedure)

IN Mediation/Negotiation/Conciliation

A

B

A + B

BUT IN Arbitration/Courts

A

B

A

B

Final Thoughts

What is the best means (method/methods) for effective (problem) solving?

“Transformative empathy is among the most significant and important ways of grounding justice and moving people to new places…” Inaugural Lecture of the A.B.Chettle, Jr. Chair in Dispute Resolution and

Civil procedure. © Carrie Menkel Meadow (2006)

Thank you

References• Carnworth, Robert; “Institutional Innovation for Environmental Justice”; Pace Environmental

Law Review; Volume 29, Issue 2; Winter 2012• Fisher, Roger & Ury, William; “Getting to Yes”; Random House Publishing; 2012• Maser, Chris & Polio, Carol A; “Resolving Environmental Conflicts”; CRC press, Taylor &

Francis Group; 2012• Meadow, Carie Menkel; “Inaugural Lecture of the A.B. Chettle Jr. Chair in Dispute Resolution

and Civil Procedure; Georgetown University Law Centre; 2006• Moore, Christopher W.; “The Mediation Process”; 3rd Ed., John Wiley & Sons; 2003• Rogers, Nancy H. et al; “Designing Systems and Processes for Managing Disputes”; Wolters

Kluwer Law & Business, New York; 2013