Environmental Justice
“from claiming to creating through ADR”
Harsha Fernando
Attorney-at-Law
Consultant, ADB - Sri Lankan Resident Mission
Negotiation & 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
Private decision making
by parties
Private
third party
decision
making
Public (Legal)
third party
decision
making
Extra legal
coerced
decision
making
Conflict avoidance
Informal Discussion
& problem solving
Negotiations
Mediation
Administrative
decisions
Arbitration
Judicial Decision
Legislative
Decision
Increased coercion and likelihood of win-loose outcome
Non violent
action
Violence
Adopted from Christopher Moore; “The Mediation Process”
Operational framework for mediation
COMMUNICATION
RELATIONSHIP
INTERESTS
OPTIONS
CRITERIA
If “Yes”
COMMITMENT
If “No”
ALTERNATIVES
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
Operational framework for mediation
• 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”)
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” –
Philosopher (1914 – 2004)
Stuart Hampshire, British Social
• (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”
Conflict
Our material
desires versus
sustainable
capacity of the
environment
(perceived threat
to survival)
Justice
Diagnosis
Process
(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
A+B
B
BUT IN Arbitration/Courts
A
A
B
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