Environmental Justice

We care about environmental justice because it doesn't seem fair that poor communities of color should suffer disproportionate health risks.  If we can demonstrate that companies have purposely located polluting facilities in minority neighborhoods, the law provides a remedy. When we can't prove intent, though, it's hard to make charges of environmental racism stick. Unfortunately, there are a great many situations in the United States where African-American, Hispanic, and Native American populations are suffering far greater health and environmental risks than their  caucasian counterparts, whether a company intended this or not. These residents live next to riskier facilities (often unwittingly) because the price of land and the cost of housing are lower, or because it is the only place they were granted access.  It you were the family involved,  it wouldn't make a bit of difference what the company's intentions were, you'd want the situation fixed -- immediately.  That's the problem.  Many law suits have been filed under the law designed to remedy environmental injustice, but they have mostly failed. Discriminatory intent is hard to prove. A consensus building approach, though, one that doesn't rely on litigation, can produce results even if no discriminatory intent was involved.  

In a study I prepared for the Office of Environmental Justice in the U.S. Environmental Protection Agency with my colleague Gregg Macey (who is now on the law school faculty at Fordham University), we demonstrate that communities suffering environmental injustices (whether purposeful or not) can negotiate "good neighbor agreements" and other remedies. The keys to success are:  a well-organized neighborhood group that can document the risks to which they have been exposed; a governmental body of some kind that is willing to listen (even if it doesn't have the power to compel a polluting party to fix the problem) , and the help of a mediator.

         A great many environmental advocacy groups reject the notion that there is anything to gain by sitting down with a company they think is poisoning them.  They are willing to work hard to mobilize (and gather information that might be used in court), but they are skeptical that a powerful corporation will pay any attention to what they have to say or take corrective action unless forced to do so by the court.   I've provided training courses for the leaders of environmental advocacy groups, and I understand their concerns, but Gregg and others have been able to document numerous instances in which negotiation (and mediation) have produced results, even when litigation has failed.  The trick is to work with scientific advisors (often from nearby universities) to demonstrate that the community is experiencing serious health risks, whatever their cause.  Another colleague, Jason Corburn at the University of California-Berkeley (in his book entitled Street Science) shows how residents in immigrant communities in New York City were able to do this with help from public health experts at Columbia University.  A third colleague, Dara O'Rourke has shown, it is quite possible to train residents to gather and analyze "fence line" data showing that pollution problems are coming from nearby industrial facilities. 

With plausible data in hand, an organized residents' group can approach local facility managers (or executives at corporate headquarters) about discussing possible changes in operating procedures, organizing continuous monitoring, or helping families that have suffered. By inviting regulators as well as elected officials to host such informal "problem-solving sessions," residents can make it difficult for managers to ignore their requests.  And, public officials can host such sessions even if they don't have sufficient grounds to act.  They are usually willing to host a session to review the evidence "on its merits."  And, if an agreement can be reached voluntarily-- even if it goes beyond the authority of the regulating body -- many agencies are perfectly happy to include the terms and conditions of such agreements as part of revised permits, and enforce them.

Informal conversations of this kind run the risk of deteriorating into shouting matches, so it is often essential that they be mediated by "professional neutrals" acceptable to all sides.  By preparing appropriately, especially getting everyone to agree to ground rules, mediators can make the difference between successful and unsuccessful problem-solving.  A mediator can also be named in an  informal agreement as the person to call when one side feels that the other isn't living up to its promises.

The consensus building approach (CBA) to pursuing environmental justice can work just as well in international settings, when multi-national corporations are involved in mineral extraction or other development activities (whether licensed or not) that are hurting indigenous groups.  An organized constituency, with independently gathered evidence in hand, can compel a company to attend a problem-solving session, especially one hosted by a multinational agency and mediated by a credible neutral.  CBA doesn't guarantee success, any more than confrontation or litigation do, but it is an option that should be taken seriously.

For more information see Susskind and Macey, Using Dispute Resolution Techniques to Address Environmental Justice Concerns: Case Studies. Prepared by the Consensus Building Institute for the U.S. EPA Office of Environmental Justice, 2003

Siting Energy Facilities

It doesn't seem to matter whether we are talking about energy from fossil fuels or renewable sources, there is strong opposition to proposed generating facilities.  The Cape Wind project, a large wind energy facility proposed for the waters off Martha's Vineyard, has been the target of fierce opposition from well-known and well-heeled political opponents. Terrestrial wind projects planned for high ridges in the mountains of New England and in the plains of the western states have been challenged on aesthetic and environmental grounds. Large solar energy plants have been blocked all over California.   The same arguments used to contest the building of coal- and gas-fired power plants all over the world, are now being used to haltthe  construction of renewable energy facilities:  they will have unacceptable environmental and aesthetic impacts;they will unfairly reduce property values; they will preclude other more desirable land uses, and they will cost too much. 

The people likely to benefit substantially from new facilities -- either because they will be employed in some supporting or related industry or reap a direct financial return as an investor -- are usually small in number compared to those who will be (or think they will be) adversely affected.  So, even if the "gains to all the gainers" are sure to outweigh "the losses to all the losers," those who fear large or serious losses will find each other and take whatever actions they can to block new projects. It doesn't matter whether they are renewable energy projects or coal-fired power plants.  The much larger number of beneficiaries who stand to gain (perhaps just a little over a long period) won't be as motivated to advocate for the facility. Thus, regulators are much more likely to hear from impassioned opponents than they are to here from potential beneficiaries.

Our regulatory system requires all kinds of environmental impact assessments, risk assessments and cost-benefit analyses.  These make it easy to document potential costs and possible adverse impacts -- no matter how small or uncertain.  But, they almost always pay insufficient attention to possible benefits because they are much harder to measure, especially over long periods of time. 

A consensus building approach to energy facility siting needs to focus on four things.  First, public policy with regard to the need for more energy (or energy of certain kinds) ought to be the product of an extensive public dialogue.  How will our city, region, state and nation meet its energy needs over the next several decades?  Picture two pie charts. The first summarizes current demand for energy (with wedges showing all the different ways we use it).  The second summarizes existing supplies(with wedges showing the different sources in proportion to each other). Then, think of the new version of each pie chart that the public wants to achieve by a specific point in time. We need public agreement on these four charts. The only way to get that is through public educational efforts involving joint fact finding.

Then, when a decision has to be made about a specific new technology (in a particular location), representatives of all relevant stakeholders (i.e. all groups of potential gainers and losers) need to be assembled (by the relevant regulatory agencies) to seek consensus on the best way of proceeding. It will difficult, in some instances to find effective spokespeople of some of the potential losers and beneficiaries, but the government has to make sure these interests are represented.  In many instances, such ad hoc groups can come up with creative promises, environmental guarantees (or trades)  and compensatory arrangements that maximize benefits, minimize losses and tax specific gainers to compensate specific losers. While these will only be proposals (not legally enforceable requirements), proponents of new facilities are eager to know how they can proceed in a way that will earn wide-spread support.  Regulatory bodies will gladly accept voluntary commitments from facility proponents that go well beyond what the government has a right to require -- and they will agree to enforce them -- as long as they are the product of transparent public dialogue at which all interests are represented.

Both the policy dialogues on future supply and demand targets and the negotiations over the siting of specific facilities in precise locations need to be facilitated by specially-trained environmental mediators.  These dialogues can accommodate large numbers of participants in multiple problem-solving sessions (not one-time hearings). They can even be televised to ensure accountability to the larger constituencies involved. 

For more on how this works see Susskind and Cruikshank, Breaking the Impasse (Basic Books, 1987), Susskind et. al, Negotiating Environmental Agreements (Island Press, 1999), and "A Negotiation Credo for Controversial Siting Disputes," (Negotiation Journal, October 1990, pp. 309-314).  For evidence of how the Credo has worked see Howard Kunreuther, Kevin Fitzgerald and Thomas Aarts, "Siting Noxious Facilities: A Test of the Facility Siting Credo," Risk Analysis, Volume 13, Issue 3, pp. 301-318. 

Leadership

There are a great many theories of leadership -- from highly centralized, top-down (almost militaristic) models to more decentralized, bottom-up, enabling (almost group-transforming) models. Leaders who get others to do what they want by using the power to threaten, punish, or reward can, in fact, get certain things done. As we flatten organizations, however, eliminating middle management ranks and emphasizing the need for flexibility, collaboration and individual initiative, leaders who motivate or manage by exercising power are becoming obsolete.  Quite a few organizations, companies and groups now put a premium on finding leaders who can motivate or catalyze networks of employees, volunteers, supporters, investors and others to take responsibility for defining and achieving the tasks that need to be addressed.

I think of these people as facilitative leaders -- men and women who help teams and networks of employees and partners set ambitious but workable agendas, problem-solve in creative ways, and support each other and the organization as a whole in the face of unexpected opportunities and obstacles. 

From what we have learned in the consensus building and organizational development fields, I see three behaviors or "moves"  that define facilitative leadership.  First, a facilitative leader is someone who consults with the people s/he is leading to define the process by which the group will do its work or make decisions.  Second, a facilitative leader is someone who will find ways to enhance the capacity of the individuals and groups involved so they have both the information and the confidence they need to make informed decisions or recommendations.  Third, a facilitative leader is someone who commits to decision-making by consensus. That is, a facilitative leader won't impose a decision or settle for a majority vote; rather, they will keep working until the group comes as close as possible to unanimity on how to proceed. [See Susskind et. al, The Consensus Building Handbook (Sage, 1999) for more detail.]

Lots of leaders (including many of those who operate in a top-down fashion) claim that they want to consult or involve others in choices that must be made.  But they don't mean it.  What they really want is confirmation for what they have already decided or the veneer of democratic decision-making.  A facilitative leader, on the other hand, makes explicit what the process will be by which the input of all relevant parties will be tapped, presents that process for review and revision by the people who will be involved, and makes sure that the process is followed.  Even facilitative leaders may have to impose time constraints or other limitations. But when they do, they make these constraints explicit along with the reasons why they can't be ignored.

Capacity building is the second key task of facilitative leadership.  It is not enough to invite people to have a say.  A facilitative leader must give those being consulted access to the technical information or independent professional advice they need to present their concerns or suggestions in meaningful ways.  They also need to hear that their informal ("local") knowledge is important and will be incorporated into whatever decisions must be made.

A commitment to consensus building often means involving a professional neutral to provide facilitation or mediation services.  A facilitative leader knows that it is not a sign of weakness to ask for such help -- especially when the leader wants to have a say on particular issues being discussed, and thus isn't in a position to be entirely even-handed in engaging others in collaborative decision-making.  Consensus building also requires putting the right kinds of questions to the group. For example, asking for proposals that will solve a problem in a way that meets the interests of everyone involved rather than asking for each persons favorite solution.   It also means insisting that the group shouldn't seek compromise; instead, it should aim to maximize the creation of value -- coming as close as possible to meeting the concerns of everyone involved. 

It's hard to be a facilitative leader; it is certainly more of a challenge than being a traditional visionary leader who is supposed to figure out what's best and knock heads until everyone does what they are told. 

Management of Corporate Teams

While a great deal of corporate decision-making is top-down, there are occasions when task forces or work teams representing various divisions or departments need to operate by consensus. The selection of  a uniform computer architecture, for example,  that each segment of the company will have to accept will be easier to implement if everyone is on-board with whatever software is chosen. While it is possible to impose a decision from the top (based on the recommendation of the IT department), the transition to a new system is likely to be a lot smoother if an informed agreement can be reached by a cross-divisional work team.  

Consensus building in a corporate context usually begins with an announcement that a task force or work team has been created to figure out how to implement a decision that has already been made at a higher level.  All too often, the people put in charge of such groups are selected because of their seniority rather than their facilitation skills.  Thus, when this happens, it is wise for the group leader to tap a skilled facilitator to help.  Instead of waiting for each division to announce its stand on what it wants or doesn't want, consensus building hinges on the initial willingness of the team leader (or the facilitator) to meet with each department or division representative to hear (privately and confidentially) what their interests are as well as the reasons they hold the views that they do.  With this results of such a survey in hand, the team leader can then generate an agenda and a work plan that take account of important overlaps and differences.  He or she can also summarize (without attribution) the range of concerns that the task force must address.  The technique avoids personalizing disagreements.

By requiring participants to sign written ground rules committing them to make every possible effort to respond to the concerns of all the participants -- and not just the concerns of the department they represent -- the chances of reaching a consensus are enhanced.  The team leader should make clear that no formal votes will be taken. Only a plan agreed to by almost everyone will be acceptable.  As the group approaches resolution (within the time frame spelled out by the team leader), the participants may need to be reminded that the best interests of the company require that they invent a "package" that comes as close as possible to meeting all the concerns presented by the team leader at the outset.  No team member will want the leader to report that they were the one who held the group hostage or made it difficult for the group to complete its assignment. 

Consensus can be achieved within a specified time in a way that meets almost all the interests of the groups or departments involved as long a the team leader knows how to facilitate a problem-solving effort (or realizes that he or she may need the help of a skilled facilitator). The goal is to do better than a majority vote that usually leaves a lot of unhappy departments. By getting everyone into a problem-solving mode, an inventive hybrid solution (not a lowest common denominator compromise) can be found.  Worst case, if the group can't reach agreement, the team leader can still propose a solution that reflects the sense of the group. 

(Bi-partisan) Legislative Decision-making

We've all heard the calls for greater bi-partisanship in Congress and Parliament.  Especially in times of crisis,  parties or factions are urged to put aside their differences for the good of the nation.  But exactly how should a legislative body transform its usual approach to decision-making when it wants to operate in a bi-partisan or a consensus-building fashion? And why is this desired only in times of crisis? 

In The Cure For Our Broken Political Process (Potomac, 2008), Sol Erdman and I spell out some of the ways that legislative bodies can operate differently when they are committed to achieving consensus.  To begin,  the body needs to identify the full range of views held by its members on an issue.  Anyone who feels strongly about it should be asked to write down what he or she thinks needs to be done and why.  Then, the rest of the members should be pressed to affiliate with one of these published statements.  The author of each statement can then decide whether or not to modify what they are saying or merge with another author in an effort to win greater support.  When a relatively small number of written positions remains (each with a growing list of supporters), the authors of the remaining statements should be brought together face-to-face to explore the conflicts that remain and to consider ways of bridging their differences. A conversation of this sort should be managed by a professional mediator selected by the leadership, with the concurrence of the authors who have come to negotiate.  By the way, the process I've just described can be used by any legislative body at any time by merely voting to suspend their normal rules.

Notice that parties and party leadership do not play a critical role.  Consensus is more easily reached if party leaders stand aside and let their members participate in the manner I have described.  Then, when a small number of statements remains, the mediator should report back to the leadership of the Congress or the Parliament.  Remember, each remaining statement will contain both a prescriptive section outlining what ought to be done, as well as an explanatory section explaining why that prescription makes sense. At that point, the full membership should be asked to affiliate with one of the remaining statements.  The statement with the smallest number of supporters should be dropped. Members should be asked, again, to affiliate with one of the remaining statements.  This process should be repeated until there is only one statement left with an overwhelming number of supporters. (There may be some members who prefer to drop out along the way rather than affiliate with one of the statements that remains.) 

If this procedure is made explicit in advance, the authors will usually do everything they can at each stage to accommodate as many additional members as possible. The final product will by definition represent a bipartisan consensus. By abandoning majority rule and side-stepping parliamentary procedure, a legislative body can avoid the usual win-lose dynamic.  By emphasizing the reasons that backers should support a statement, it is a lot easier later on for constituents to hold the representatives accountable for the positions they have taken.  So, when members know that their name is attached not just to a proposal but to a list of reasons why that proposal is a good idea, they are more likely to operate in a slightly less partisan way. One can only wonder, why proceed in this fashion only in times of crisis?

International Treaty Negotiation

International treaty-making is one area in which consensus building is the rule.  Because countries are sovereign, a majority vote by other nations can not bind a country that doesn't want to sign a treaty. Thus, there are hundreds of treaties, but very few bind all the nations of the world. This means that any multinational coalition that wants to win support for a new treaty (like another climate change treaty) must propose something that countries will accept voluntarily.  There are three ways to do this.  First, countries can be drawn in on a step-by-step basis.  An initial "convention" might just ask countries to agree that there is a problem that needs attention. They'll sign that. Leaders who sign can get political credit for "doing something," even though signing is just symbolic. Then, that initial treaty can be followed by more detailed "protocols" spelling out who needs to do what by when. Although some countries that signed the original convention might not endorse the subsequent protocols, many will feel obliged to follow, especially if each small step is not too burdensome.  Second, a treaty can offer sweeteners -- financial incentives or other linked benefits (like access to technology) -- that make signatories better off.  Third, a coalition can "shame" recalcitrant countries, either at home or in the world media, if they don't sign.  

Bringing together 190+  delegations to negotiate a complicated legal agreement is no small chore.  A group-appointed chair is usually tapped to lead such multi-year efforts -- although it is rare that treaty-drafting is professionally mediated.  Lots of unofficial meetings are often held along the way to get the ball rolling or to generate new treaty elements. Within countries, non-government interests can bring pressure to bear on their official delegations to accept or reject proposed treaty provisions.  Indeed, multilateral networks of non-governmental organizations have become increasingly important in global treaty-making.  In general, it takes many years to win support for a global treaty. Each time the leadership in a country changes, treaty-makers have to regroup. Often, scientific or technical questions require special attention. And, since there is rarely an established worldwide group of experts ready to step in, technical debates often cause delays. 

The consensus building approach to treaty-making puts more emphasis on getting early input from a wide range of official and unofficial parties in the treaty drafting process.  It puts a premium on the mediation skills of the individual or group leading the effort.  Ongoing input from a representative team of experts, chosen by all the countries involved, can overcome dramatic differences in technical understanding. And, linking restrictions that one treaty regime wants to impose with benefits that another treaty has to distribute, can help to generate agreement.  For more on how these dynamics work see my articles in the 2008 National Academy of Science and Engineering's Issues in Science and Technology (www.issues.org/25.1/susskind.html) and International Negotiation Journal, 8 (2), 235-266, 2003. 

Natural Resource Management

Consensus building can be applied in all kinds of natural resource management disputes. Even in the face of competing demands, contending stakeholders can reach agreement on how to proceed. With a help of a professional mediator, people or groups (including government agencies) can work out who should get what portion of the land, water, minerals, or forests and for what purposes. They can do this in a way that takes account of legally-mandated rights and regulations as well as radically different needs and values. Their task is to come up with a way of guaranteeing everyone something better than what they would most likely end up with if they took the battle to court or into the political arena.  Sometimes (voluntary) compensatory arrangements can make a difference.  Other times, what look like irreconcilable differences can be resolved by formulating new rules about when and how a resource can be used (for example, your group can use certain portions of the lake for sport fishing during specific weeks of the year while my group is guaranteed that there won't be any motorized vehicles on the water at other times or in other portions of the lake). Neither side "wins" in the sense that the other "loses," but both achieve their most important interests.  Sometimes the key is joint fact finding -- gathering believable information together. This can lead to entirely new problem-solving ideas that go beyond existing laws or practices.  To see how this actually works look at the web site of the MIT-USGS Science Impact Collaborative (scienceimpact.mit.edu).  Also, see Susskind et. al, Negotiating Environmental Agreements, Island Press, 1999 for more examples and theoretical background.  

The Consensus Building Approach (CBA)

Consensus building is an approach to group decision-making that puts a premium on problem-solving.  (The problem, of course, is how to get everyone on board.) Most people approach group decision-making -- whether in a committee, a club, a locality, a community-of-faith, a legislative body, or any other kind of assembly -- with the idea that majority rule is their only option.  That is, only 51% can be happy. The other 49% can't get what they want, and are supposed to lump it.  My question is, "Why?" To me, it makes more sense to seek unanimity, then settle for overwhelming agreement after every effort has been made to resolve differences creatively.  I would never start out with the goal of achieving a simple majority. The typical arguments against consensus building are (1) the process takes too long, (2) there are two sides to every question and people will always disagree, and (3) consensus building produces lowest common denominator agreements -- meaning bad agreements.  As it turns out,  all three of these assumptions are wrong. And, I have the evidence to prove it.  My objective in this blog is to share that evidence and encourage as many people as possible to discuss their own group decision-making experiences.  The key to consensus building, by the way, is that a neutral party -- trusted by everyone involved -- needs to manage each problem-solving conversation.  In each post, I'll include one published reference.  I'll start with Breaking Robert's Rules: The New Way to run Your Meting, Build Consensus and Get Results published by Oxford University Press in 2006 (by Susskind and Cruikshank). It's now available in Japanese, Chinese, and Portugese and will soon be published in French, Dutch, Russian and Spanish.