I think it might be interesting to examine and discuss some of the specific ideas in the Westerman bill. The text of the arbitration section of the Westerman Bill is Title III subtitle B here. I like the idea of pilots- perhaps have two or three approaches and at the end of two years have a bipartisan commission or advisory committee (folks appointed from both parties and all sides of the issue) review how things worked. It seems to be different from the Barrasso bill that we discussed here in 2014, although the legal discussion about arbitration may still be valid.
I like how this process includes both Agriculture and Interior in the pilot, and how the arbitrator has to be approved by each party involved. I particularly like that each intervenor has to put its cards on the table in terms of going with the proposal, or submitting a modified proposal.
Another pilot might be a period of open, transparent public mediation perhaps done through the US Institute for Environmental Conflict Resolution (established by Congress for just these sorts of things). Not only would people have to put their cards on the table (put the public back in public policy) but it would be a great opportunity for science education (e.g., how do you know that this or that will or will not happen)?
Here’s a description of arbitration compared to mediation:
Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process. In simpler terms, binding arbitration replaces the trial process with the arbitration process.
Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.
Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.
Somehow I like the idea of a panel of three arbitrators better than the one in the Westerman bill. Maybe that could be another idea tested in the pilots. Maybe Congress could pick two regions, one in the 9th Circuit and one in the 10th Circuit, and test these approaches on a sample of projects. Maybe a joint advisory group could be developed with folks from differing perspectives to select 20 projects to try each way and report back. Forty projects would not cause ecosystems to collapse nor species to go extinct (the group could even agree on a maximum number of acres treated in the pilot) and we might all learn something.
I bet there are other interesting approaches floating around. There is a group in Australia called PCERA who does this:
Second, PCERA provides a new model for expert determination called Collaborative Expert Resolution. This process involves an independent expert being appointed for each party to undertake an independent informal assessment of the merits of the case. The experts then meet and reach consensus, through a collaborative process, as to the resolution of the dispute on the merits. The assessment may be undertaken on a binding or non-binding basis. The outcome is a form of expert determination process in which the parties can work closely with the assessor appointed to consider their case, ensuring the merits of the case are addressed.
I like the idea of experts being involved in this approach.