Coming Full Circle

Thanks to Ian Boisvert for starting this blog and Blue Sky Mediation – now it’s my turn.  So let’s go back to the beginning and come full circle.

You can learn a few things if you work in consensus building and conflict resolution for 20 years.  The mistakes pile up, but so do the lessons.

Some lessons are learned early.  It was twenty years ago that I tried to help a group of people who had to make hard decisions about how to prevent the spread of HIV infection.  It was the 80’s and too many people were suffering and dying from AIDS.  Protease inhibitors were beginning to change the outlook, but not fast enough.  Preventing transmission of the virus was (and is still) vitally important.

A group made up of those infected with and affected by HIV, public health professionals, advocates and caregivers gathered monthly as part of a project called Coloradans Working Together to reach agreement on priorities for prevention funding.  Their recommendations drove funding allocation from the Colorado Department of Public Health and Environment.

The lessons I learned through the trial and error of their consensus-building effort continues to inform my work.

-  Lead with your heart – if you care about helping, it comes through even when you make mistakes

-  Give people the opportunity to be their best, and ask them to try – if you help those in conflict recognize that they can rise above and work with those who disagree with them, more often than not, they will make the effort

-  Set big goals – if you believe that a breakthrough agreement is possible, others begin to believe it too

-  Don’t give up – if it looks like there’s no possibility of agreement then work harder, you haven’t exhausted the possibilities

Later this month, I’m going back – bringing it all full circle – to help the Colorado HIV and AIDS Prevention Grant Program (CHAPP) Advisory Committee.

I hope I’m a more effective consensus builder than I was 20 years ago, that I’ll make fewer mistakes and that this group will benefit from my experience.  But that’s not the important thing – I’m more convinced than ever that the four lessons I learned twenty years ago are still the ones that matter.  You (and they) can be sure that I’ll continue to apply them.

If you want to learn more – I’ve been fortunate that Coloradans Working Together caught the attention of a couple of authors – John Forester produced a profile of the project in his most recent book “Planning in the Face of Conflict” and another profile was published years ago in “The Consensus Building Handbook” by Susskind, McKearnen and Thomas-Larmer.

BlueSky Enters New Chapter

BlueSky Mediation & Law is about to enter a new and improved chapter. A well-established and successful environmental mediator has offered to buy BlueSky Mediation & Law. His name will be revealed in the coming days. What I can say is that his timing, like his professional track record, is impeccable.  He and I are finalizing a few details. We will issue a joint press release before the end of the month.

Oh, wait. You had a question? What makes his timing impeccable? In the last few months I have been moonlighting. That moonlighting has started taking on a life of its own. More importantly, I have felt drawn to it in inexplicable and unstoppable ways. I am committing myself to it. You can discover the answer to what “it” is here: free-quill.com.

moth_light_500But remember to check this blog frequently for the exciting news of who the new owner and torch-bearer of BlueSky will be. I thank you all from the depths of my heart for your support and encouragement as I have built BlueSky into an entity attractive enough to buy.

Increasing Adjacent Possibilities

Adjacent possibility is a concept that theoretical biologist, Stuart Kauffman, coined to describe the nature of life to seek out more complexity at a rate sustainable to itself. Internet/culture/innovation pundit and keen observer, Steven Johnson, applies the concept more broadly:

The strange and beautiful truth about the adjacent possible is that its boundaries grow as you explore them. Each new combination opens up the possibility of other new combinations.

Imagine that!

Imagine that!

For this to happen both living organisms and their environment have to be at some equilibrium. For a counterexample think of Da Vinci’s helicopter sketch: the prevailing environment could neither understand nor physically support such a futuristic idea. On the other hand, Apple’s iPod found footing because Sony’s Walkman helped create and condition the environment to manufacture, accept, and use personalized listening devices.

In my grossly biased opinion, collaborative processes like mediation or facilitated negotiations offer an environment for the participants to explore more adjacent possibilities than judicial or governmental processes. Why? Unlike the latter, collaborative processes are not strictly rule bound. So if parties want to open a metaphorical door, they can. Adjacent possibility being what it is means that by opening one door, the parties enter a room with four more doors, each of which leads to rooms with four more doors, and so on. By contrast, the litigation environment is defined by narrowness, limited options, and a single track, which encourages strategic legal thinking, but not creative problem solving. So the next time you want to create more options to your environment, energy, or water problems, open the door to a collaborative approach. The adjacent possibilities might surprise you.

Mediators Enter the Fray for Peace

KARMA POINTS (& free mediation)
A colleague and I would like to share our wisdom to help people develop and hone their collaboration skills at SXSW Eco, which picks panels based on crowd voting. Vote for us and you get 90 minutes of free mediation for any kind of dispute before October 2013. “Thumbs Up” our submission at http://panelpicker.sxsw.com/vote/16573

Enter the Fray

At ease in the fray.

At ease in the fray.

At a recent conference in Chicago Sen. George Mitchell stood at the podium addressing a vast ballroom full of mediators and other recovering lawyers. He leaned in to deliver an unexpected message, “Working in Ireland and Israel I was a mediator, but I was not a neutral. When a mediator enters a conflict he is no longer neutral because he is part of the dispute.” He concluded with a story about returning to Northern Ireland to watch Parliament in session with his son. When his son asked if they could leave Parliament because it was boring he knew he had helped establish a lasting peace in Northern Ireland.

At a conference this past week I heard Lucy tell her story. She, like Sen. Mitchell, is a mediator. She was invited to mediate a dispute between rural Southwest counties and neighboring Native American reservations. The first thing Lucy did when she arrived was to introduce herself and then have the parties introduce themselves. The third person (of about 20) took 35 minutes to introduce herself. She shared her life story, her fears, and her motivation for being there. That openness created trust for subsequent people to share more about themselves. The underlying dispute wound up resolved.

Entering into the fray, Sen. Mitchell and Lucy were independent participants who came to know the parties but did not become a party, they came to understand the conflict but never added to it, and they respected the power of holding an independent but not neutral position. A worthwhile mediator or facilitator brings trust, understanding, and a willingness to dig deep so grievances can be aired, relationships restored, and trust rebuilt. How can the value of a mediator in the fray help your country, your company, or your neighborhood find peace and a lasting solution to conflict?

Another Fine Collection of Environmental, Water and Energy Links

BlueSky Blog is on the road for the next week. Here’s a collection of the more interesting stories on environment, water, and energy issues around the world. But first…

EARN KARMA POINTS (and free mediation)
A colleague and I would like to help people hone and develop their collaboration skills at SXSW Eco Conference in Austin, TX. SXSW Eco picks its panelists based on crowd voting. Vote for our submission and BlueSky Mediation & Law offers you 90 minutes of free mediation for any dispute (even non-enviro issues) anytime before October 2013. Please “Thumbs Up” our submission:  http://panelpicker.sxsw.com/vote/16573(Registration is required).

Pakistani Water Dispute Ends in Murder 
Pakistani farmers slay another over he allegedly stole water from their irrigation canal.

Port Angeles, Washington: Border Dispute Leads to Bulldozing A House
A logger, a bulldozer, and a bad outcome.

US Congress Mixes It Up in Chatahoochee River Dispute 
Congress hopes to pressure Florida, Alabama and Georgia governors to negotiate over decades old Lake Lanier water dispute. Maybe Congress should lead by example.

Egypt Takes The High Road: No Force Over Nile Controversy 
Egypt says it won’t use force to resolve the dispute with Ethiopia on the disputed quota of Nile river water.

tibetan woman

Praying it doesn’t melt

High Tibetan Ice Hotting Up?
When hell freezes over? How about when heaven melts? Tibet’s ice sheets are known by some as Asia’s water tower because there are 46,000 glaciers covering 100,000 square kilometres. If and how fast they melt could affect 1.5 billion people (and growing) in 12 countries.

Melting Down the US Utility Monopolies
Alliance of solar providers are taking on power utilities’ efforts to undercut their business model.

Vote For Our SXSW Eco 2013 Submission!

A colleague and I just submitted to present at South-by-Southwest Eco Conference in Austin, TX. Our proposal is to help folks hone and develop their collaboration skills for environment and energy issues. SXSW Eco picks its panelists based (partly) on crowd voting.

I’m going to sweeten the deal: Vote for our submission and BlueSky Mediation & Law gives you 90 minutes of free mediation for any dispute (yep, even non-enviro issues). You can redeem this offer anytime before October 2013.

Please vote for our presentation. GO HERE:  http://panelpicker.sxsw.com/vote/16573.

Eco13-voteformysession (1) copy

Vote for us today!

Dare to change corporate culture? Engage.

I recently met with one of the nation’s leading environmental lawyers, who has as storied and successful career as one can hope for. He raised a significant question. And since I went fishing with my dad right after our meeting, I’ve had a lot of time to think about it. I’ll paraphrase the question:

If one’s mission is changing corporate culture so it treats the environment more holistically, is litigation a useful tool for causing that change?

I personally doubt litigation is an effective way to change corporate culture in this way. Here are three reasons why not.

First, litigation does not allow for any personal interaction. Let’s take a current example. Lawyers litigating against BP want it to take responsibility for damage it has done in the Gulf of Mexico and surrounding communities. By using the courts, the litigators hand off the decisionmaking and implementation of that decision to the government. It works as intended by our Common Law system: if BP, as a defendant, is guilty or culpable it pays restitution and penalties to make the plaintiffs “whole.” But the process imposes distance, impersonality, and combativeness. The lawyers–who are agents of and therefore not culturally integrated with their clients–argue to the court. When they talk to each other it comes from a position of being adversarial, not ambassadorial. And the parties almost never talk to each other directly.

Second, environmental litigation typically leads to financial restitution (maybe some physical clean-up), but that’s just a cost of doing business to the company. But what if it’s a massive fine? Could that cause BP to change its culture? Doubtful. Imagine BP or other supermajor oil company having to pay an $12.5 billion dollar judgment. For BP, this is not hypothetical for its Gulf Oil Spill. BP’s 2012 revenue was US$388.285 billion so it earned just over $1 billion of revenue in one day. (Go ahead, re-read that.)  A $12.5 billion fine is just barely over 10 days of BP’s revenue. (Go ahead, re-read that.) So if it’s cultural change–that is, a shift in thinking, speaking, and interacting together as a group and with the world–then I doubt a fine that reflects about 28 hours of corporate revenue is unlikely to encourage meaningful change. There may be a fine so high that a company would have to buckle under its weight, but it’s unlikely that a court will levy that kind of fine. If it did, the appeals process would certainly knock that down.

"Did she just say 'cultural transformation' to me?"

“Did she just say ‘cultural transformation’ to me?”

And that brings up the third reason: courts are places to protect and defend rights, not change corporate culture. There are enormous benefits to our Anglo-American legal system, like rule of law, civilized transactions, and the protection of personal and civil rights by an entity capable and trusted to do so. But if one’s goal is changing corporate culture, the courtroom fails. Judges have no right let alone training to impose cultural change. Being based on an adversarial process, lawyers and parties feel like they are under threat from each other. One partner I worked for told me to “cultivate a mindset of paranoia.” (REALLY? Yes, really.) Courtrooms heighten fear which leads to people entrenching themselves deeper in their culture rather than feeling open to change.

I agree litigation can be a tactic in a bigger strategy to spur on cultural change. Brown v Board of Education exemplifies how one case fit into a much larger strategy to affect cultural change around civil rights. That strategy included well-orchestrated and -organized civil disobedience, protests, marches, and media campaigns against well-documented intentional, hateful, and bigoted actions. It also involved the federal government telling state and local governments not to infringe on the Constitutional rights of United States citizens; a role the federal courts are supposed to and designed to play.

I believe that if one’s mission is to influence a corporation’s cultural attitude toward the environment, then one must engage with the people that make up the organization. Create the forum, the process, and the dialogue in which you invite them to participate. Talk with them so you hear what words they use, and have the chance to introduce new or substitute words or concepts that they take back, consciously or not, to their organization. Open up to understanding and empathizing with their point-of-view to, which does not mean agreeing with them. It does mean they are more likely to soften their defensiveness, be more receptive, and allow your values to affect theirs. Engaging directly gives one more opportunity to affect corporate culture on the environment than is ever possible in the courtroom. And if direct engagement fails, litigation is always there as a backstop.

But these are my beliefs. What do you think? Share your thoughts.

The Marvel of Human Silk

Sustainable development

Sustainable development

Spiders generate their own silk to spin their bed, build a home, lay a lure for the opposite sex, and create a trap for prey. They have a conjurer’s ability to create something amazing, complex, and multi-purpose from seemingly nothing. It all starts when they let one gossamer strand float in the wind. When it catches they start building.

We humans have a similar ability to create something amazing, complex, and multi-purpose from nothing more than the thinnest of ideas. I’m not only talking about websites, nanobiotechnology, and aircraft carriers; those are mere strands on existing webs. More impressive to me are the millennia of science, math, philosophy, religion, and engineering that came first. Imagine: a human conceived the first thread of a math idea, sent it out to the world, and it caught. It caught because someone else picked up on it, built on it, and sent it on to others. We are still building on it, and, in my case, writing on this laptop because of it.

BlueSky Mediation & Law celebrates its first anniversary this month so I am acutely aware of how amazing and fragile building on nothing more than an idea and a vision can be. Fortunately, my ideas have caught on here and there. I move between them, string them together, strengthen them. That spiders tighten their first strand by carefully walking along and strengthening  repeatedly until the thread is strong enough to support the rest of the web is a fact not lost on me. I send out more ideas. Some catch, others don’t. Like communal web builders, I pick up others’ threads and collaborate with them to mutually bolster our individual webs. Like spiders that spin specific silks for specific functions, I have to keep generating different ideas as needs arise.

Swing kids

Enjoying the ride!

For all the metaphorical similarities we share with spiders, one critical point (among many) differentiates us from spiders. We can have fun and experience the joy of flying through the air on swings we know ourselves to have created. What a marvel!

A Fine Collection of Environmental, Water and Energy Links

BlueSky Blog (that is, me) is (and has been) on the road for 2 weeks. Here’s a collection of the more interesting stories on environment, water, and energy issues around the world. Have you signed up for BlueSky Updates? If not, it’s easy, painless, and you can always unsubscribe. Sign up here. Enjoy!!

Yale Fails To Distinguish Coincidence from Causation
Dear Yalies: Marine mammals in the US may be on the rebound. But that does not mean “the Marine Mammal Protection Act has accomplished what its framers” hoped for.

Dolphin smile

Say what?

Does anyone speak dolphin? I might need a translator
If dolphins, chimps and other animals have “personhood” and they sue their captors then I will happily mediate their cases. I’ll be certain to charge the homo sapien humans. But I might need an interspecie translator. Know any?

Seattle Longshore Union Fight Short-Haul Truckers Over Port-a-Potties
Seattle’s short-haul truckers want access to a restroom with running water. Unions are preventing them. Really?

Compulsory Environmental Insurance Goes Global
Here, in China
And in Turkmenistan

Water Disputes in America Go Beserk
New Mexico: hold back because SCOTUS considers taking your case
Utah and Nevada stand off over Snake Valley water

California Fracking Gets Real
The regulators and, predictably, the lawsuits fire up

All together now

All together now

A California Oyster Farmer Unites Strange Bedfellows
Alice Water is now linked with a United States senator from Louisiana, Tea Party supporters, and the Keystone XL Pipeline in support of the Drakes Bay Oyster Farm

BlueSky Springing On

Fossilized now but what a great run it must have had

Fossilized now but what a great run it must have had

Nearly a year has passed since BlueSky Mediation & Law opened. I have made strides, met many new and wonderful people, and am just now starting to feel like I am attracting the work I set out to do. Gaining clients is not easy and BlueSky is still a long way from financial viability. But otherwise fallow environments have erupted instantly. Look at the Cambrian Explosion. I mean that took only 20 million years and BOOM animal life everywhere. Blink of an eye, right;)

I do believe that companies, governments, and organizations will start coming to BlueSky because our collaborative and innovative approach to solving environment, energy and water disputes offers them something necessary and unique.

I’m happy to share two wonderful developments from the last few months. Coral Reef Alliance (CORAL) elected me to join their Board of Directors. CORAL is the only international organization working exclusively to save coral reefs around the world. It is in a significant growth phase right now and I’m very excited to be part of it. Second, I am advising a group setting up an ethics commission for Buddhist leaders and temples in North America. For those not familiar with the issue, a couple American Zen Buddhist temples are struggling to deal with long-standing allegations of sexual misconduct by their abbots and have made national news, which is negatively impacting the American Zen community and beyond. Advising the three courageous folks starting this commission dovetails my long-standing Zen Buddhist practice with my interest in conflict resolution and restoration of trust. I am honored that they trust me to help.

Finally, spring is here so let me scatter an idea to see how it grows. BlueSky Mediation & Law is offering a free 30-minute training that covers the what, why, and how of environmental negotiations. This free training would be perfect at lunchtime or as part of larger training efforts for companies, governments, and organizations. Call me at 415-568-8135 to schedule the presentation. Of course if you know other environmental organizations who might benefit from this training, please pass along this offer along or send me their contact information and I will happily follow up.

ianindagrass

At ease but not a fossil yet

Your support, offers to make introductions, and great feedback about BlueSky Mediation & Law buoy me and keep me striding on. Thank you for all your help!

Civil Water Wars in the US

That states battle over borderland waterways may not surprise readers of BlueSky Blog. But Georgia and Tennessee are disputing the actual location of their border along the Tennessee River. Peter Gleick, President of the Pacific Institute, wrote about this conflict at Huffington Post:

What is the issue? If the border can be redrawn (or “corrected” as Georgia puts it), it would give them access to the northernmost bank of the Tennessee River, and a new right to water resources that Georgia would now, desperately, like to tap to satisfy growing demands in the Atlanta region.

water balloon fight

An American past-time. AJC/Jamie Gumbrecht

Peter’s article only skimmed the surface of how many water disputes are boiling over in the US. The US Supreme Court (SCOTUS) agreed to listen to Texas and Oklahoma argue over a Texan water supplier trying to get water from a portion of Red River that Oklahoma claims as its own. Texas also just submitted another water dispute to SCOTUS this time with New Mexico over the Rio Grande. Last year, SCOTUS punted on deciding a long-running argument between Georgia, Florida and Alabama over access to water originating from Lake Lanier. Meanwhile, other state and tribal water disputes simmer on: Kansas and Nebraska over the Republican River Basin;  Oregon, Klamath Tribes and many others over Klamath River Basin; and anywhere the Colorado River meanders.

These water disputes persist due to simple economics: demand exceeds available supply. That point about “available” supply explains a lot. Typically,  government agencies in charge of releasing the water supplies have to satisfy many different and opposing water uses from conservation to recreation to consumption. Some  argue that, considering we have strong institutions and respect for property rights, a pure commercial water market untethered from government restrictions would solve water disputes in the US. Yes, that might reduce transaction costs associated with water allocation, but I doubt that it will make litigation over water less likely. If anything, strong property rights and rule of law may embolden Americans to litigate to fiercely protect what is “mine.” With natural resources like water I would recommend calling truce and empowering a multi-party stakeholder group to work with a team of scientists to create an evidence-based plan that the group can implement. Yes, it is a messy and difficult process. The stakeholders in Apalachicola-Chattahoochee-Flint basin, though, are showing it can work.

Do We Need Climate Change Quixotes?

don quixote

Hot enough for you?

I went to a meeting last week of San Francisco Bay Area organizations collaborating to prepare for climate change. At least two speakers casually linked catastrophic weather events to “Climate Change.” One speaker, a scientist, showed slide after slide of raging wildfires, parching drought, and severe tides. His message was that we can expect all these, and more, to worsen because of “Climate Change.” Listening to this my thought was, “If you want Americans and Bay Area residents to work with you, they have to trust you before they can believe you. If you casually link any and every significant weather event to climate change, you are not building trust.” But maybe I’m wrong. Maybe the best approach is to throw logic and science out and just connect bad events and scary images to Climate Change.

Yes, Americans are worried about climate change and its effects (here, here and here). But polls show mixed results and that the worriers only just outpace the deniers. The Economist’s Democracy in America blog analysed colorable reasons Americans balk at accepting what the scientific community embraces: That humans are driving climate change and we will experience significant shifts in weather stability, water levels, and so on. Among the reasons The Economist blogger analysed are religious beliefs, psychology, and politics. The trust and beliefs that accompany peoples’ religious, political and psychological outlooks are not based in sound logic, although people might employ a sort of logic to rationalize their outlook. Instead, they largely rest on emotional, cultural, and other non-rational experiences.

If our goal is increasing American support for political action addressing climate change, do we need more Climate Change Quixotes linking every aberrant weather event to Climate Change? Or would a phased approach of building trust, encouraging acceptance of the science, and then asking for support be more effective? Based on the striking results of this survey, I’d say we are beyond the rational so bring on the Ingenious Gentlemen from La Mancha. 

Environmental, Water & Energy Links of Interest

BlueSky Blog (that is, me) is in full-on volunteer mode for the San Francisco Wisdom 2.0 conference through the weekend. So I thought I would collate a few of the most interesting stories on environment, water, and energy issues around the world. If you are a regular visitor and haven’t yet signed up for BlueSky Updates it’s easy, painless, and you can always unsubscribe. Sign up here. Enjoy!!

If Marines and surfers get in a fight, who wins?
The answer might surprise you.

Count carefully. You don't want to lose that subsidy.

Count carefully. You don’t want to lose that subsidy.

Fishy news emerging from Europe
Paying people to fish in overfished fisheries leads to low stocks. EU might change that.

Global water scarcity
Warning: A graphic image!

Environmental protesters in the US
drawing “lines in the sand” against the Keystone XL Pipeline…

…should be thankful they can do so
without getting killed, as is happening in Brazil, Cambodia, the Philippines, and places beyond.

French do it in the dark
because their government mandates it.

And the Dutch beef up their natural dykes
because they like efficiency.

The Chinese change
the balance of environmental risks by requiring some companies to buy environmental insurance.

Well said.

Well said.

I’ll let the Maori
Have the last word.

US Seeks A Mighty Large Umbrella

The federal government is in the market for the world’s largest umbrella insurance policy. The United States Government Accountability Office (GAO), a non-partisan agency, announced that the federal government is facing high financial risk related to climate change. Deloitte, a consultancy, would applaud that degree of openness and transparency about the federal government’s financial risks related to the environment.

Deloitte published a report showing that companies open about their environment, social and governmental risks (ESG for more acronymese), perform better in the marketplace. These risks range from the Seattle WTO riots to community protests over oil and gas drilling. “ESG disclosure is valuable because it helps a company demonstrate that it is managing its risks and has a track record of paying attention to its ESG performance.” I’m glad to see I’m reaching the same conclusions as those better-paid, fancy consultants over at Deloitte.

Get thee better insurance

Get thee better insurance

Now that the GAO report is out in the open, what will Congress and POTUS do about it? Will ESG come to mean “Environment Sinks Government”? If you sell environmental insurance, maybe you should get in touch with your Congressperson. For the less rational legislators (James Inhofe, as one example), tell him or her you’d be happy to sell them the world’s largest umbrella because the climate is about to get Biblical. The God Almighty One just said so.

A Water Vise Tightens Around California

Last week I had the pleasure of touring NASA’s Ames Research Center in Silicon Valley. Ann Clarke, Assistant Director of Operations, generously showed me around the property explaining everything from their enormous wind tunnel (care to test a 747?) to a mock-up site to test robotics for the Mars Rovers. These were indeed impressive. But the most striking view was seeing where their land meets San Francisco Bay. The water sloshed above eye-level just beyond some levees. Being below sea level isn’t itself a problem. Being a quarter Dutch and having spent my childhood in Holland predisposes me to feel at home behind levees looking up at the sea. But California ain’t Holland. California’s water problems go much deeper, and from the look of it are about to get much thornier.

If 150 years of Californian’s battling each other over freshwater allocation weren’t bad enough, California’s local governments and citizens are now preparing to battle a rising ocean. San Francisco Bay sea level rise scenarios do not portend good things, as this and this graphic illustrate. King Tides, like this one in a North Bay parking lot, punctuate the sea level rise narrative with unforgettable images.

Now you see me.

Now you see me.

Sea level rise will reclaim land that people and companies have spent decades and billions uncovering for their own use. It could also threaten the governor’s efforts to engineer a new freshwater delivery system from the San Francisco-San Joaquin Delta to the southern California residents who rely heavily on the Sierra Nevada runoff.

Southern California, though, is not sitting idle hoping that Governor Brown succeeds at his bid for the multi-billion-dollar Bay Delta Conservation Project. Orange County, for instance, could be getting a new desalination plant with a capacity to produce 50 million gallons of freshwater from ocean water. San Diego County has a similar desalination plant under construction. They both will require enormous amounts of power that are largely going to come from non-renewable power sources. The irony thickens.

Freshwater supplies will continue to diminish as seawater will intrude further and further inland and into aquifers. Thus will a water vise squeeze California. NASA Ames may have their sights set on outer space, but the San Francisco Bay has its sights on Ames field. Fortunately, NASA’s futuristic vision translates into a more prosaic one for rising sea level. Will Californian politicians and citizens have the vision and moxie to call truce to freshwater fights to deal collectively with the arguably greater threat of rising sea levels?

Obama Courts Controversy Along the Atlantic

When Obama spoke about climate change squarely in the middle of his second inaugural speech he invoked the US Constitution’s preamble:

“We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity. We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”

He followed these high-flying words by noting that “[t]he path towards sustainable energy sources will be long and sometimes difficult.”

Got oil?

Gunning for oil

Considering that Obama is opening oil and gas exploration off the mid-Atlantic Coast, he may be courting that difficulty. A federal agency that oversees offshore oil and gas activities, Bureau of Offshore Energy Management, is preparing an environmental review for seismic exploration 150 miles off New York’s Long Island in an environmentally sensitive region called “the Canyons.” Taking offshore energy exploration in this direction falls in lock step with Obama’s predecessor, George W. Bush, who overturned his dad’s moratorium on any continental shelf drilling. The lawyers for environmental groups are already posturing for a long fight. Oceana’s president, Andrew Sharpless, said he and other conservation groups “…intend to fight to maintain and ultimately extend that prohibition [for offshore drilling].”

Just spin?

Just spin?

The Obama Administration is also moving in a direction more consistent with his emphasis on sustainable energy and concern over climate change. The Interior Department is spurring on offshore renewable energy development with a new submerged power line to connect offshore wind and other ocean renewable power sources from Virginia to New York. While the US has (or had) a few pilot phase wave and tidal devices scattered around Maine, Hawaii, New York, Oregon, and Texas, it has no offshore wind turbines anywhere. The proposed Atlantic Wind Connect power grid, would create the infrastructure necessary for renewable ocean energy–wind, wave and tidal–to develop at scale. Considering the controversy that has embroiled the Cape Wind project off Martha’s Vineyard, a safe bet is that Atlantic Wind Connect might expect a similar welcome.

Obama is indeed expressing an audacious hope by backing these two plans to extract power from the Atlantic Ocean. The oil and gas exploration over the Canyons will be within seismic-gun-shooting (see top picture) distance of the Atlantic Wind Connect’s New York terminus. How the two in combination might affect ocean life will cause activists to fight both to the bitter end. Obama is fulfilling his own prophecy that ”[t]he path towards sustainable energy sources will be long and sometimes difficult.” When you combine sustainable energy projects with oil and gas ones over environmentally sensitive regions you make the path more difficult than it need be, Mr. President.

Whole Foods Feeds on Stakeholder Engagement

Harvard Business Review recently interviewed Whole Foods CEO John Mackey on  why and how he believes a corporation can and should ground itself in an ethical framework that respects stakeholders.

Mackey contends that when the roots of capitalism sprouted they did so in an environment dominated by Judeo-Christian morals and ethics. Indeed, Adam Smith spelled out those moral underpinnings and community obligations in Theory of Moral Sentiments before he wrote Wealth of Nations. Mackey argues that moral framework has eroded over time and in its place has seeped the belief that business should maximize money and profit.

Engaging stakeholders?

Engaging stakeholders?

Hold on! 400 years before Smith, Chaucer told of a wife complaining to her husband’s cousin, a monk and her lover, that her merchant husband did nothing but count money in the dark and was too stingy to spend it on the household. She convinced “Dear Sir John” to ask her husband for 100 francs so she could go shopping. The husband gave Sir John the money, but the monk of course lied to get it. So Mackey’s historical view of trade and ethics is too simplistic by half. Tension has always and will always exist between the two. Throw sex in that mix and…you get it.

But I appreciate that Mackey tries to balance growth with how his company affects and interacts with the community at-large. Indeed, the HBR interviewer tells him that in her neighborhood of Somerville, MA, people protest large multi-national chain stores. Lo and behold they welcomed Whole Foods!

We could characterize Somerville residents (and Whole Foods customers, generally) as elitists. But that’s facile and negates that Whole Foods does a lot to engage stakeholders. It donates 11% of profits to nonprofit organizations, its employees have great health benefits, and when it enters a new location Whole Foods works to secure good relationships with local suppliers and vendors.

Steady as she goes. Stakeholders ahead!

Steady as she goes. Stakeholders ahead!

Mackey may not be much of a philosopher or historian. But he has steered Whole Foods from a basement operation to a multi-billion dollar corporation. He accomplished that while continuing to engage rather than disregard stakeholders, keeping employees happy and healthy, and securing good relationships with local small-businesses where Whole Foods open up. How many CEOs can claim that?

Seriously, I’m interested in hearing from CEOs who can claim that. I think it’s great and want to spread more than just Mackey’s story.

Can Vulcan Adapt?

Vulcan, so the myth goes, was the main architect and builder of Olympus. He presumably did so with Jupiter’s permission and didn’t have to worry much about the other gods, deities, and nymphs. Outside of autocratic countries, large-scale developers don’t have it so easy today.

Companies building big public projects face a new era, a maze of regulations and more stakeholders who are better-organized, better-connected, and better-off than even fifteen years ago. The new era means litigation is a costlier, riskier, and longer approach. Yet power, mining and engineering businesses tend to have outdated cultures that prefer a model of lobby, litigate, and react.

Vulcan

Vulcan exposed to risk

What power companies, utilities, and other natural resource companies ought to do is directly engage with stakeholders as a first course. (I’m working on an article with Britt Ide, Mike Hughes, and Holly Campbell about just this.) Direct engagement employs negotiations (facilitated, if necessary), meetings, collaboration, mediation, or some combination of these. It allows the companies to preempt, reduce, and perhaps remove disputes from their project. The savings from this approach can be invested back in operations, management, and construction.

What I am curious about is whether these companies are better off building in-house teams that specialize in direct stakeholders engagement, training existing staff (like lawyers, engineers and scientists) in collaboration and other non-linear problem solving techniques, or hiring consultants to help with the thorny projects. It seems like training staff would help start a cultural shift for the company toward direct engagement. If the company regularly finds itself in development disputes, then building a direct engagement team might be the next step.

Do you work for a company like the one described? What’s your opinion of direct engagement versus the traditional approach? Of how to encourage a direct engagement culture?

Bench the Litigators

Twelve environmental lawyers and staff gather for a catered lunch meeting to discuss their strategy for an upcoming trial. They are fighting over who pays to clean a small, contaminated lot in heavily industrialized Los Angeles. The case started nearly a decade ago. Only four attorneys talk. Every one else teeters between boredom and looking at their phones to make it seem like they have important roles somewhere. The meeting conservatively costs the client $25,000.  A few months later the case settles for only a few million dollars.

"Don't worry, we're litigators."

“Don’t worry, we’re litigators.”

Having been one of those environmental litigators I can say these meetings happen all the time. Rarely, if ever, do they benefit the client. Litigators are paid to fight by the hour, and so they will. They are just living up to their name. Litem agare, the root phrase for litigator, means to conduct or drive a dispute or quarrel. Litigators are not problem solvers, they are agitators, and that mindset does not favor corporations and companies unless they are trying to solve a point of law. A business’s environmental issues are almost always a point of fact, not law.

What should corporations and companies with environmental liabilities and regulatory requirements do instead of litigate? They should negotiate. Its Latin roots, neg + otium, translates into “not easy; lacking leisure.” And, yes, negotiating is more difficult than punting the problem to the litigators. But then again approaching environmental issues as a course of doing business increases the likelihood you will solve it faster and less expensively than giving it to a team of lawyers to fight it out for years while charging you for the privilege.

Renewable Energy: Feed Me, See More.

With Obama’s reelection comes more federal support for renewable energy than I (safely) think would have been the case had Romney won. The support starts with the Department of Defense (DOD), which is continuing its efforts to increase renewable energy production. As only a US Navy blogger could write:

The use of alternative fuels follows SECNAV’s call to create the “Great Green Fleet” by 2016. The Navy is already “Green” in many areas using biofuels in its ships, aircraft, and helicopters. This Navy initiative is working toward at least 50 percent of total energy consumption by Navy vessels coming from alternative sources and utilizing more flex fuel and hybrid fuel/electric vehicles.

…OUR Navy is a balanced force able to do it all in a moments notice – Anytime, anywhere, and on target – just a bit faster than the Army and a little more capable than the Air Force!

[As the son and son-in-law of retired Army officers, I couldn't resist including the last bit.]

We move from “OUR” Navy to offshore renewable energy. The Department of Energy (DOE) is awarding $28 million in grants to seven offshore wind projects. Each developer stands to receive up to $4 million to engineer, design and permit their projects in six states. Three of those will then receive up to $47 million over four years, subject to Congressional appropriations, for construction and installation.

seymourUndoubtedly, some people will howl in protest at federal support for renewable energy by raising specters of the Solyndra failure. But these curmudgeons might, although unlikely, be persuaded to accept that the federal government draws in vastly more revenue from leasing public lands and waters for energy production than what paltry amount it spends on renewable energy support. Feds took in $12 billion from these leases, which cover all types of energy extraction and production. These offshore wind DOE grants are an upfront cost, but if they lead to devices in federal water then the feds earn decades of lease fees. Alternatively, renewable energy grants are federalized insurance to reduce greenhouse gas emissions and thus slow impacts from climate change, which the private insurance industry is taking seriously since it costs them serious money.

If feds feed money into renewable energy, they end up seeing most if not all of that plus additional revenue return through lease and royalty fees. And DOD warriors, arguably, spend less time defending foreign fuel supplies. If we don’t feed the growth of renewable energy, we feel the costs from climate change. To offer an admittedly simplistic choice, would you rather feed the growth of domestic, secure power production or greenhouse gases that spur on the effects of climate change?

Links of Interest

BlueSky Blog (that is, me) is going offline through December 10th. So I thought I would collate a few of the most interesting stories on marine, water, and energy issues around the world. I look forward to returning to regularly blogging after December 10th. If you are a regular visitor and haven’t yet signed up for BlueSky Updates it’s easy, painless, and you can always unsubscribe. Sign up here.

New Zealanders diss new organisms
members of the public can propose specific new organisms to be made “not new”.

Financing that dam removal you’ve been dreaming about
Grants are now available for stream barrier removal projects that help restore riverine ecosystems, enhance public safety and community resilience, and have clear and identifiable benefits to diadromous fish populations
. Fish can identify benefits?

Water You Warring About?
As if Israel and Palestine fighting over land isn’t enough…and,
Foreign Affairs weighs in on Why Climate Change Has Not Led to Conflict (log in required).

Goby a lawnmower

Fijian Coral Has On-Call Landscaping Service
gobies, inch-long gemlike creatures, report to the affected areas of the corals and nibble the aberrant seaweed back into place
.

Neighbors learn to share
U.S. and Mexico have reached an agreement on how to share water from the Colorado River.

Another intern goes to Washington
And learns about the future of hydropower in North American tidal and wave energy.

The People’s Republic of California Prices Carbon
NYT (unerringly) errs in calling it “A free-market auction…

Remember to sign up for BlueSky Updates here.

Fences and Footpaths

All man-made law, all positive injunction
Is broken everyday without compunction
For love.

- Chaucer, The Canterbury Tales

Since before the Middle Ages people have tussled between enjoining behavior and avoiding those injunctions. For Chaucer’s Knight, love was the reason to break man-made law, but many less noble reasons abound.

For example, a more pedestrian struggle is materializing in my own backyard on The Presidio, a federally-owned slice of San Francisco.  As you can see from the picture below, Presidio management tried discouraging walkers by covering a preexisting path with discarded wood and timber. Look closely and you see an impromptu trail emerge from the bottom left, winding through the middle of all the detritus before sliding downhill next to the log. The footpath began a few days after management attempted to fence people out.

What does this have to do with conflict resolution, whether environmental, social, or other? First, governments can try their best to encourage or discourage certain behaviors, but people will find ways around, through, or over in spite of the regulations. Most people aren’t defiant out of spite. Some do it out of necessity to survive. Others defy regulations because it is often easier, cheaper, faster, or any of combination. And yet others defy regulations because it’s the only to they can create what they envision, but regulations haven’t caught up to technology. Second, what if more government regulation and enforcement are not the best ways to persuade actors who impact the public to behave in specific ways? What if rewarding them to cooperate and collaborate with stakeholders and community neighbors leads to more optimal outcomes at lower societal and financial costs? Third, people want to create, innovate, and cooperate with others who are interested in the same. Too many fences penning people in can cause an uprising. Look at the Arab Spring. We aren’t in the Middle Ages anymore.

Join Us for a Webinar on Ocean Energy and Adaptive Management

I am honored to co-host a webinar on Thursday, November 15 at 1pm Eastern Time (updated!) with the Maine-based Ocean Renewable Power Corporation, the first company to send electricity from any type of ocean or offshore wind-power to the United States grid. (Yes, you can still sign up for the webinar.)

ORPC is one of three ocean renewable companies to have blazed, and continue to blaze, a trail in successfully acquiring all the permits and environmental assessments necessary to test their device, TidGen. To get these permits ORPC had to collaborate with scientists, academics, and regulators as part of the adaptive management process.

Maine power

Adaptive management is a regulatory tool through which regulators require developers monitor their devices and sea life, to collect data, and agree to remove their devices if regulators get skittish of sentient sea life swimming to close to the machines. Regulators employ adaptive management because they do not know what the risks and impacts will be from putting tidal, wave, and wind power devices in the ocean. In short, adaptive management implements the precautionary principle.

As I wrote before, the Precautionary Principle (here, adaptive management) is one factor why renewable power is so slow to develop. People raise the Precautionary Principle for all and any risks they are worried about, no matter how unlikely. But the relevant question isn’t how to avoid risks, rather what is the worst-case scenario if an ocean energy device fails or falls off its moorings? Certainly that scenario is exponentially less catastrophic than a nuclear power plant’s failure as Japan tragically witnessed.

Thankfully, ORPC is ready to talk about how with the right approach, right mindset, and right team in place adaptive management is, well, manageable. Join us on November 15, 1pm EASTERN Time, for a free webinar. Go ahead: risk an hour for the chance to learn something new. What’s the best that can happen? You can sign up here.

Could a League of Rivals Cure California’s Bay Delta Policy Blues?

Playing together nicely

Edit: Eugene Kim over at Groupaya correctly pointed out my mistake that Delta Dialogues are not an alternative to BDCP, but a complimentary process. I’ve edited the post to reflect this.

Historian Doris Kearns Goodwin called President Lincoln’s cabinet a “Team of Rivals” because they were a collection of unnatural bedfellows–the “rivals”–working toward the administration’s common goals–the “team”. Present day examples of Teams of Rivals abound.

One is the collaborative model that an innovative marine scientist in Massachusetts, David Wiley, is working on. David has used this approach to alter commercial shipping lanes to reduce Right Whale strikes in and around Stellwagen Bank. No easy task considering the yachties, fishermen, shipping lines, conservationists, and recreationalists that abound off Boston’s coast.

As I have written about before, California’s Bay Deltas suffer from a lot controversy over policies big and small. People’s disagreement centers on water quantity, quality and supply, while habitat and economic concerns thicken the issues. The Delta Dialogues is a complimentary venue to the mainstream stakeholder engagement process, the BDCP. While the BDCP has no relation to the Team of Rivals, Delta Dialogues incorporates some features. For example, Delta Dialogues convened leaders from different Delta stakeholder groups who boldly agreed to do nothing but attend and listen to each other. The Delta Dialogues Phase I culminated in participants saying that they gained empathy for the positions, interests and motivations of their fellow “rivals” where they had little before. The Dialogues diverged from the Team of Rivals because the group lacked common goals they could work on together to implement. However, if the Delta Dialogues enters Phase II, they aim to incorporate goals and actions into their process. In their last meeting the Delta Dialogue participants were very excited and motivated for this next phase.

There are numerous scientific and engineering points that the Delta’s political stakeholders in general argue about but lack the technical capability to address. They hire their own specialists and consultants with the result predictably being adversity, criticism, and discord. Could the model of David Wiley’s Team of Rivals in the science context combine with the building success of the Delta Dialogues into a Delta Team of Science Rivals?  Or a League of Rivals? That is, create another Team of Rivals to tackle the Delta’s scientific and engineering issues. That team could compliment the Delta Dialogues, whose participants have a broader political focus and lack the skills to do rigorous scientific and engineering work. California’s Delta stakeholders can take comfort in knowing they ain’t facing war and death like Lincoln’s team. But 30 years of litigation and controversy ain’t great either. There’s still a lot blues in the Delta and maybe a League of Rivals can hammer out a resolution.

Seeing the light? Government tells itself to collaborate and use mediators for environmental, water, and energy disputes

Hallelujah! The federal government shows its innovative, cost-conscious side by issuing a memo that directs all federal agencies involved in disputes around environmental, water, energy, or transportation to use third-party neutrals. It strengthens an earlier memo by

by explicitly encouraging appropriate and effective upfront environmental collaboration to minimize or prevent conflict and strengthen the focus on environmental conflict resolution ….

It says “all Federal departments and agencies should leverage environmental collaboration and conflict management approaches to minimize and resolve environmental conflicts.”

“I concur!”

The memo also ties in with an earlier 2012 Executive Order that requires executive agencies and departments to

work collaboratively and concurrently to advance reviews and permitting decisions, and facilitate the resolution of disputes at all levels of agency organization. Each of these elements must be incorporated into routine agency practice to provide demonstrable improvements in the performance of Federal infrastructure permitting and review processes, including lower costs, more timely decisions, and a healthier and cleaner environment.

There are more details that make reading the memo and EO worth reading in depth (just follow the embedded links above).

One question that I and many others have is: how do we ensure that these agencies and departments are following through on the policies encouraging collaboration, neutral problem solving, and stakeholder engagement? And yes these are exhortative policies that lack any penalties or incentives. Still, let’s create a strategy to get the word out.

1. Spread the word to everyone and anyone you know in a federal agency or department involved in natural resources, environmental, energy, or infrastructure permitting or planning.

2. Write a piece for a relevant publication: attorney bar newsletter, trade journal, your blog on environmental conflict resolution (hello!).

3. Meet with decisionmakers in executive agencies or departments that you know make decisions relevant to how the agency handles permitting, planning, and conflict resolution.

4. Inform your Congressional representatives that Obama has seen the light and wants his agencies and departments to stop squandering time and money on environmental, natural resource, renewable energy, and infrastructure permitting by getting into protracted disputes with stakeholders. It’s a time and cost-saving measure to use conflict resolution.

Oh, but you might want to wait until after November 6th because appointed and elected officials might have something else on their minds until then.

Oregon’s Big Waves & Small Fish

Tall, dark cliffs with deep evergreen trees flank one of northern Oregon’s most popular surf spots. Last weekend large waves pounded their way into this bay leaving many of the hopeful surfers frustrated at not penetrating past the walls of whitewater to where they might actually catch a wave. After surfing there on Saturday, I ventured with two other guys into Oregon’s Coastal Range to fish for some of the legendary sea-run cutthroat. Only one of us (nope, not me) succeeded in getting fish of any size. True to the adage, neither fishing nor surfing are called catching for a reason.

A similar observation might pertain to Oregon’s statewide goal of becoming the “global fast follower” for wave energy development. (Scotland currently enjoys being the “global leader” of ocean energy development.) For the better part of a decade, Oregon has attempted to entice wave developers into its territorial seas through money, a “Territorial Sea Plan“–to be voted on this year–the Oregon Wave Energy Trust, and the Northwest National Marine Energy Center. Even Oregon’s current governor follows his predecessor’s policy of supporting wave energy development.

And why not? If Oregonians succeed in wave energy development it could create jobs, reenergize coastal towns, diversify Oregon’s historically natural resource dependent economy, enhance energy security, and reduce the need for hydrocarbon-based electricity production.

There’s more where he came from.

But those interested in creating Oregon’s wave energy developments are finding out why it’s not called “catching.” Nick Edwards, a commercial fisherman from Coos Bay, Oregon, and OWET Board member, powerfully explained some of those reasons at the OWET 2012 conference last week. Nick’s most salient message:

Does the commercial fishing industry, a proven contributor to Oregon’s economy get thrown under the bus for an unproven technology on the Oregon Coast?

The full text of Nick’s speech is well worth reading. Nick, along with Pete Stauffer, a Surfrider Foundation representative, and Kaety Hildenbrand, represented to the OWET conference attendees some of the various interests who are already using the ocean waters that Oregon eyes for wave energy development. These users are unlike walls of whitewater because they are sentient, strategic, and will adjust to what is coming at them. And while fish are sentient, these users are unlike fish in that they are on equal footing with the other humans are interested in pursuing activities in Oregon’s coastal waters. So long as OWET, Oregon’s government, and ocean energy developers proceed on a collaborative, coequal basis with the other ocean users then their chances of succeeding as a global fast follower have a higher likelihood.

Stemming New Zealand’s Ocean Conflict

Thank you to PERC Reports for publishing my article, “Stemming New Zealand’s Ocean Conflict.”

Here’s how it begins…click on quote or link below for full article.

Rugged, enchanting, and powerful coastlines surround New Zealand. The coastlines are powerful not just in wave energy but also as sources of cultural identity, commerce, and conflict. Coastal conflict ebbs and flows to the extent to which patrons seek space for aquaculture or ocean renewable power projects, or, in the case of Māori, property rights. At its peak, conflict became so bitter in Tasman and Golden Bays that…

PERC Reports: Volume 30, No.3, Fall 2012.

Not as pacific as it seems.

California’s Bay Delta: Kaleidescope or Collideoscope?

My wife and I drove the blue highways to Silver Lake in the El Dorado National Forest this past weekend. Because we drive a Volkswagen Vanagon, our pace is suited to byways. Plus it gave us a chance to cross through the working heart of the Sacramento Bay Delta. When seen through the higher vantage that a Vanagon permits, I saw a lot more than would have been the case had we “zoomed” (not really an option in the VW) along I-80.

As the road unfolded we saw a major natural gas-fired electricity plant, glimmering water bodies such as Shag Slough and the tamed Sacramento River, cows grazing on windswept vistas, wind farms on the Montezuma Hills–the towers have red lights that glow in eerie unison at night–workers driving industrial “vacuums” through rows of nut trees, and diminishing Main Streets with antique stores, barber shops, and diners. Two hours of driving through Central Valley brought home why policy planning in the Bay Delta might engender conflict.

Montezuma Hills (Blood Alley) Wind Farm. Credit: Joe Chang

I witnessed that conflict play out on August 29 at the Bay Delta Conservation Plan (BDCP) meeting in Sacramento. The BDCP is supposed to “provide a regulatory vehicle for project proponents to agree to implement a suite of habitat restoration measures, other stressor reduction activities, and water operations criteria in return for regulatory agency approval of the necessary long-term permits for the various projects and water operations . . . to proceed.” The panelists sat at fold-up tables arranged in a square. Predictably, the factions took seats in different corners. The water contractors sat opposite north Delta county representatives. From his solitary perch on the side, the salmon fishing representative spoke often and passionately. Front and center, the Resources Agency representatives and their courtesan and courtier consultants tried to keep order by presenting us with mind-numbing technical information. Meanwhile, various government representatives punched their ticket by appearing, but clocked out the second they sat down. These were the human representatives to the varied uses we saw crossing from Contra Costa to Amador County. But because of the nature of how BDCP process is structured, they collided on perspectives, on uses, on values. The government-run meeting, a well-meaning attempt at “informing the stakeholders,” did little to manage these collisions or harness the potential and kinetic energy that comes from them.

The Delta Dialogues are a wonderful contrast to the “collideoscope” method employed in the BDCP meetings. Facilitated by Groupaya, the Delta Dialogues are more like a kaleidescope in that they assemble a small group of Bay Delta leaders, representing a wide spectrum of Sacramento-San Joaquin Delta uses, with the sole purpose of listening to and reflecting on each other’s perspectives. Through a series of conversations, Delta Dialogues slowly turns these reflections into a shared understanding. That the participants are already asking for another round of dialogues indicates the participants are beginning to see each other as valuable parts of a unique, greater whole, rather than competing uses in a zero sum game. Much credit must be given to Groupaya for creating the process for this to happen, but without the participants showing up and opening up to a new method of problem solving even the most beautiful (ie, “kalos”) form (ie, “eidos”) of interaction amounts to nothing.

There are many roads to take when crossing through the Sacramento-San Joaquin Delta. My wife and I found that going slowly in a vehicle that allowed a higher, wider vantage allowed us to see, absorb, and understand a lot more about what amazing things are going on this unique swath of California.

What’s Your Dam Perspective?

I spent a glorious weekend fly-fishing in the Sierra Mountains. Hatching flies emerged from flowing water as the sun burned off morning dew and again as dusk shadows grew long. Shiny golden trout rose from watery depths to suck down flies, real and man-made. Water snapped off the casting fly line leaving behind rainbow droplets. And dams, holding back acres of water straining to follow gravity, contributed to making the rivers I fished, well, fishable.

Both rivers and the high mountain stream I fished had multiple dams. Even coming from the Pacific Northwest, where hydroelectricity and dams proliferate, I was surprised at how much damming goes on in the Sierra Mountains. But I shouldn’t have been.

A leading expert in all things hydro (I promised him anonymity) and I talked the day before I left to fish. I learned that of the 80,000 dams in the United States only 3% support hydroelectric power production. Moreover, that 3% does not represent the biggest of all dams despite how much propaganda there has been for the likes of Grand Coulee Dam. So notwithstanding prevailing public perception dams rarely equal hydroelectric power. Dams also provide water supply (Buford Dam), protection (New Orleans), recreation (Santa Fe Dam Rec Area), and irrigation (Fujinuma Dam, Japan). I can attest that they also produce excellent downstream fishing in the tailwater.

Elwha Dam: Before & After

However, various campaigns (like this one by Patagonia) to remove dams are emerging. Most famously so far in the western United States is the removal of a dam on the Elwha River in Washington State. Dam removal and decommissioning restores ecosystem services, removes safety hazards, and encourages fish to return and proliferate. From a biased perspective, that enhanced fishery is reason enough to decommission dams even if years must pass before fishing is allowed again.

Wily readers just spotted my inconsistency. Yes, fishing in tailwater can be very good. On the other hand, almost every fly-fisher I know prefers untamed waters because we fish to immerse ourselves in nature, wash off the daily grind, let ourselves temporarily go untamed, unkempt, and a little uncivilized. Thus we naturally want our rivers to be even more untamed and uncivilized than we are. Yet we also like returning to hot showers, running water, and refrigerated beer. This includes United States Supreme Court Justice Antonin Scalia who happened to be fishing the same river and eating at the same country bar in Bridgeport, California, as my fishing buddy and I on Sunday.

So what’s my dam perspective? Conflicted. What’s yours? Tell me here: ian.boisvert@blueskymediationlaw.com

Competing viewpoints

Final Part: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

 Increasing Mutual Gains for All Parties

Negotiated settlements allow parties to directly craft a plan to resolve their environmental conflict, energy disputes, or water war with each other. Litigation, on the other hand, means parties can not talk to each other without their lawyers present. Also in litigation, the court decides the outcome on the narrow and specific questions asked. Rarely does a court decision achieve an optimal result even for the “winner”. Rather than gamble on what a court may decide, people and organizations involved in issues involving natural resource disputes, conflicts over water use, and environmental management can collaborate in ways that increase the overall spoils for each party. Going into negotiations with the mindset that one can emerge with a better deal than if the dispute entered litigation leads the parties to find new options previously not considered. Having a mindset of abundance rather than protection can mean the difference between getting more than you bargained for at less cost versus spending more than you hoped for to protect only what you have.

Questions to Consider

  1. Have we tried collaborative negotiations with the counter-parties in good faith?
  2. What is the worst case scenario if we enter into negotiated settlements over this environmental or energy dispute but the talks do not work out?
  3. If we think we are at an impasse, what creative solutions could we imagine breaking that impasse?

 

Part 9: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

How Your Legal Counsel Helps

In negotiated settlements the parties can take a direct role in crafting the outcome with each other. By comparison, litigation requires the lawyers to lead discussions, make strategic decisions, and know what the other parties are doing. The parties are largely disempowered from participating, and fully  when the court makes a decision. But in negotiated settlements, lawyers can both help their client think about the best strategies to negotiate and prevent the client from agreeing to an offer if it might be detrimental to them in the long term.

Have you talked to your lawyer yet?

Fatigue from negotiations can weary parties to the point where they just want to agree in an attempt to end the negotiations, especially if there is uneven bargaining power. Here the lawyers play a pivotal role in being a backstop to prevent their clients from taking bad decisions. Ask legal counsel to review the terms before signing any settlement offers.

Questions to Consider

  1. Has our lawyer given us insight into long-term outcomes that might result if we win or lose litigation?
  2. How well has our lawyer analyzed the counter-parties’ motivations and willingness to settle? What specifically has our lawyer based his or her decision on?
  3. How will our lawyer support us if we want to enter into negotiated settlements directly?

Part 8: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

BlueSky Blog is featuring questions and strategies to improve  environmental, energy, and water negotiations with an eye toward saving the time, money, and uncertainty of litigation. To get the full e-guide subscribe now.

Direct and Indirect Incentives Matter

Incentives matter enormously. For example, if a non-profit organization mainly litigates to advance its advocacy then its fundraising might be tied to how much litigation it does and, more importantly, wins. For these organizations, and those who interact with them, knowing this information is important because such an indirect financial incentive could alter their willingness to settle, especially before litigation has started.  However, if this kind of indirect financial incentive exists to litigate, it does not mean it is always in that organization’s best interest to do so. For example, that organization might be part of a coalition of environmental groups that prefers negotiating before litigating. Pushing for litigation in that scenario would likely splinter the coalition which could reduce its effectiveness at the negotiation table. It helps to know what direct and indirect incentives motivate you, your counter-parties, and any organizations you affiliate with.

Questions to Consider

  1. What direct and indirect incentives motivate our organization?
  2. What are incentives in the legal or political system that motivate us and our counter-parties to take the position that we take?
  3. How can identifying our counter-parties’ indirect and systemic incentives strengthen our bargaining position?

Get the full e-guide: subscribe now.

Part 7: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

BlueSky Blog is featuring questions and strategies to improve  environmental, energy, and water negotiations with an eye toward saving the time, money, and uncertainty of litigation. To get the full e-guide subscribe now.

 

End of Litigation (Legal Or Financial Barriers To Continuing)

If litigation has ended then the parties often have to start the hard work of implementing the court order. This is another unusual feature of environmental and natural resource disputes. The court does not typically resolve these disputes in a way that gives the parties a practical answer on how to implement the decision. At this stage, it might be useful to consider how to design, create, and implement plans and policies to enact the court order.

Questions to Consider

  1. Do we have the financial ability or legal option to continue fighting this environmental issue?
  2. Are we in a position to propose resolving this natural resource dispute collaboratively?
  3. What advantages can we use to propose a plan that the other parties will agree to?

Get the full e-guide: subscribe here.

Part 6: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

Relationships, Interactions, and Business Beyond Environmental, Energy, and Water Disputes

BlueSky Blog is featuring two entries per week offering questions and strategies that people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving the time, money, and uncertainty of litigation. To get the full e-guide, please subscribe now.

Everybody Pitches In

Environmental conflict, energy disputes, and water wars involve groups, companies, and regulators that despite that particular conflict have other business or other interactions with each other. It might be a community group who opposes an energy project but still relies on the energy provider for electricity and perhaps even jobs. It might be an ocean conservation group whose interactions at regulatory hearings means it will continue negotiating with fishing associations and regulators on other policies. It might be a mining company who relies on local residents to fill jobs or supply services to support mining operations.

The nature of natural resources means that they are shared and are ironically the one thing the parties have in common. In that sense, how parties interact, how they solve their disputes, and how they argue for their share of the natural resource matters for how well their community gets along. If parties want to foster relationships built on civic and cordial discourse it helps to think about how a dispute over a particular issue might affect their other business or interactions. If a discordant status quo is not fine then strong community, business, and political relationships should be encouraged.

Questions to Consider

  1. Does our reputation in our community, region, or industry matter? If so, what would the outcome of this dispute do to our reputation?
  2. Are we likely to continue interacting with our counter-parties in hearings, community events like church, school or work, or in business dealings?
  3. Does our willingness to protect our position mean we are preventing possible outcomes in which all parties, including us, might improve in a shared outcome?

To get the full e-guide, please subscribe now.

Part 5: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

BlueSky Blog is featuring two entries per week offering questions and strategies that people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving the time, money, and uncertainty of litigation. To get the full e-guide, please subscribe now.

“Winning” Environmental or Energy Disputes At All Costs?

If you are trying to win an environmental dispute at all costs then settlement is probably not your preferred strategy. However, before committing to this position it might be worth analyzing the long-term repercussions and unintended consequences of this. For example, will winning this isolated dispute cause the counter-parties to set out on a political campaign to change the law or increase political pressure over the specific issue or your organization? In short, winning the immediate battle might and often does increase the stakes of the larger conflict.

Questions to Consider

  1. Is this dispute part of, or likely to become part of, a larger political movement or battle?
  2. If so, what are the likely tactics that the other disputants might use if we win and they lose?
  3. Are we prepared to win this in court if it means later fighting the issue in state or national legislatures?

To get the full e-guide, please subscribe now.

Part 4: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

BlueSky Blog is featuring two entries per week offering questions and strategies that people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving the time, money, and effort in litigation. To get the full e-guide, please subscribe now.

Importance of Legal Precedents and Constitutional Rights

If you are trying to overturn legal precedent or win on a Constitutional issue then taking your environmental claim to court is most likely your best option. While mediation and facilitated settlements can end your disputes by helping you and the other parties come up with a plan, it cannot change the law or rule on Constitutional rights that have been violated. For that, you need a court.

A Supremely Expensive Option

On the other hand, a court decision that reverses legal precedent or restores Constitutional rights does not necessarily produce a practical solution, it merely clarifies the law. A famous example is Brown v. Board of Education in which the United States Supreme Court said that public schools could not racially segregate students and that desegregation must happen “with all deliberate speed.” Brown clarified the law about school segregation. But it took states, counties, and cities decades to create plans on how to actually desegregate schools. Is that all deliberate speed?

When litigation ends, the parties have to start the hard work of implementing the court order. Because this phase often comes after years if not decades of litigation, parties feelings can be bitter, worn-down, or apathetic. At this stage, disputants can use help creating and implementing plans and policies that are specific, measurable, attainable, realistic, and time-bound.

Questions to Consider

  1. Does our lawyer think any Constitutional rights have been violated? Does an earlier court decision impede us to the point we’re willing to fight to overturn it?
  2. Is the court decision clear, helpful, and explicit about what we, or the other parties, are supposed to do (or not do) with the natural resource or environmental issue in dispute?
  3. If the legal decision stands, how will that affect our future plans and efforts around this natural resource, or similar campaigns we are considering?

Subscribe Now

Part 3: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

BlueSky Blog is featuring two entries per week offering questions and strategies that people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving the time, money, and effort in litigation. To get the full e-guide, please subscribe now.

Confidential Conflict Assessment and Zones Of Agreement

If litigation has started or is just about to, stakeholders often become more rigid or even extreme in the positions that they take regarding their willingness to negotiate, things they say, and so on. Often this is just posturing, even if it does not seem like it to the others involved in the dispute. A problem arises when other stakeholders take that posturing seriously because that in turn causes them to go further in their arguments. Things can get personal at this point.

One valuable way to prevent this downward cycle is with a confidential, neutral conflict assessment. The assessment lets parties know if a zone of agreement still exists. A zone of agreement is a combination of the degree to which the parties are interested in settling their dispute and the degree to which they agree on the facts, law, and other issues underlying the dispute. A conflict assessment benefits the parties because it can reduce speculation about the other’s motives and therefore clarify the data on which parties make their decision to proceed to litigation or not.

Questions to Consider

  1. Are we making our decisions on the best data about the other sides’ motivations or are they based on speculation (even educated speculation)?
  2. Are we willing to compromise if we find out that there is an overlapping zone of agreement?
  3. What speculation do we think the other side is making about our case and position?

Subscribe Now

Part 2: Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

Over the next five weeks BlueSky Blog will feature two entries per week offering questions and strategies people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving the time, money, and effort in litigation. To get sent the full e-guide, please subscribe now.

Environmental and Energy Disputes Prior to Litigation

Stakeholders know there is or likely will be a dispute around a particular natural resource, water, or energy decision before legal proceedings begin. At that point stakeholders are at an excellent point to see if they can reach an agreement without incurring the costs of litigation. However, many stakeholders, especially those without deep pockets, know that litigation can be a powerful bargaining chip. Those stakeholders, such as environmental non-profits or community groups, know it does not make sense to enter into negotiations withouth a credible threat of litigation. Absent that threat they often do not often negotiate on the same level as well-resourced parties. Still, prior to litigation parties are more likely to be open and willing to think creatively about what and how to resolve an environmental issue. An open mind and flexible position allow the parties to find ways of solving disputes that they previously might not have thought of absent their negotiations.

Questions to Consider

  1. Are we about to enter litigation but have not yet talked about negotiating a resolution?
  2. Knowing that litigation remains available, is my organization willing to pause on our path toward litigation to propose negotiations?
  3. What do we see as our strong and weak positions? What do we think others see as our strong and weak positions? And what do we see as the other parties’ strong and weak positions?

Subscribe Now

Tips to Improving Negotiations and Ending Litigation in Environmental Conflicts, Energy Disputes, and Water Wars

Over the next five weeks BlueSky Blog will feature two entries per week offering questions and strategies people, organizations, companies, and agencies can use to help improve their environmental, energy, and water negotiations with an eye toward saving time, money, and effort in litigation. To get sent the full e-guide, please subscribe now.

Environmental Conflicts, Energy Disputes, Water Wars

cleantech wind energy

A matter of perspective

Environmental, energy and water disputes involve multiple parties locked in conflict over how to use, manage, or conserve natural resources, land or water. Even for those on the “same” side their interests are rarely aligned perfectly. Moreover, environmental conflicts, energy disputes, and water wars typically involve deep emotions because they mix private interests with public ones. The mixture causes people who are emotionally invested in the land or water in question to challenge those who are financially invested. People representing the public nature of the natural resource are often motivated by a sense of fairness, social justice, and conservation. On the other hand, people with a financial interest in the natural resource have a personal stake in the outcome. While neither motivation is wrong, both influence the positions and flexibility of the negotiating parties. Yet disputants attack the legal process to support or challenge the substance of the dispute, whether it’s natural resource use, protecting land, water or ocean, or securing approval for an energy project. But arguments about legal process wrench the works without solving what matters to the parties. The combination of these factors make environmental and energy conflict unique from many other disputes. In short, environmental litigation rarely leads to lasting solutions while costing all the parties dearly.

Questions to Consider

  1. Are we involved in a dispute over a natural resource, an energy development, or water use or quality?
  2. Are the counter-parties we are dealing with representing public interests, private concerns, or a mixture of both?
  3. If this goes to litigation, how much time, emotional investment, and financial resources can we afford to contribute?

Subscribe Now

Cross-Post: Carbon Market Architects

I am writing on carbon storage laws for Sense and Sustainability. Carbon Market Architects interviews Kurt Zenz House, CEO and co-founder of C12 Energy, about how that company is building a carbon market while the rest of the country waits for carbon policies to emerge. My money is on C12 Energy and similar entreprenuers making it work because waiting for policy to shift is like hoping climate change isn’t happening.

Carbon Market Architects

The Fishy Cost of Water

California’s lawmakers punted on voting for an $11 billion water bond that would have funded projects like water storage, Bay-Delta sustainability, groundwater clean-up, and advanced water treatment and recycling. The bond also included special funding for interpretive centers, and other pet projects. With politicians pulling levers on water management and funding it is worth pondering whether public management of water is the most efficient and effective model? A lesson from ocean fisheries suggest otherwise.

Over the past two decades fishery managers in California, New Zealand, and elsewhere have implemented Individual Fishing Quotas (IFQs) to great effect. An IFQ is a privately-held, marketable right to a certain amount of fish, set through scientific monitoring, in a specific fishery. The IFQ owner can sell or lease the right, fish the right, or retire the right for conservation. IFQs allow commercial fishing fleets to haul their catch while drastically reducing the gladiator combat they engaged in before IFQs. Evidence shows that where properly implemented IFQs have dramatically improved fisheries and fishing industry efficiencies.

IFQ critics, including commercial fishers, argue that fish should not be “owned,” that only the richest will be able to afford IFQs, and that IFQs are subject to monopolistic effects. In response to the criticisms, folks at places like Environmental Defense Fund, an NGO, design limits on IFQs and lobby to impose them.

Happy with her share

If IFQs can reduce fishing fleet conflicts while enhancing fishery health, could they also work on a local scale for freshwater allocation? Water, like fish, is a common resource that does not respect political boundaries, but is the subject of significant political conflict and occasionally physical ones. If water were allocated via market mechanisms it would need a niftier acronym than IFQ. Let’s arbitrarily call an individual quantum of water a Freshwater Individual Share (FISh). Like IFQs, a FISh would function best with a scientifically-defined limit on how much of the target watershed or water body is open to market allocation, some of which would be open only to locals, and shares can be perpetually retired for conservation purposes.

FISh have at least three advantages over the prevailing government water monopoly. One, they would encourage private negotiations rather than wasteful lobbying of governmental bodies and knee jerk litigation that often entrenches acrimony and stubbornness. Second, FISh shareholders will have an incentive to maintain the quality of the water source because they aren’t assured a specific identifiable “stock” of water but a measurable flow from it. Third, FISh would more accurately quantify the value of the water source than what happens under the commons regime. (Interpretive center anyone?) High prices would motivate rationing when flows runs low.

Freshwater markets do have a mixed history around the world, but often because they were poorly conceived and implemented. And critics are certain to argue that water is a common good and thus should be solely managed by the government. Yet IFQ programs, which the government continues to enforce and manage in terms of catch limits, show that well-designed individual ownership over common resources actually restores the health of the resource while reducing human conflict over it. As freshwater quality and quantity diminishes, the dispersed, unquantified costs of common management increases. Wouldn’t it be better to know the true cost of water than just punt it down the road?

California’s Water Power Problem

Attention to the water-energy nexus usually focuses on water’s role in power production whether for solar thermal energy, hydraulic fracturing, or nuclear power. California’s epic plumbing project makes the role of power in water use a juicier topic.

Nineteen percent of all energy consumed in California goes to water-related uses, according to agency and news sources. That includes electricity produced in California, as well as imported fuels. The biggest share of the 19% goes to domestic use (28%). The extraction, pumping, transfer, and distribution of California’s water comes a close second at 22% of that overall 19%. This does not include irrigation. California devotes 10,300 gigawatt hours (GWH) annually to just moving water. (Total annual use is 265,000 GWH.)

Not easily pushed aground

Seventy-five percent of the water Californians use comes from the northern third of the state. Most of the rest comes from Owens Valley and the Colorado River. KQED has a nifty diagram laying out the wheres and hows of California’s plumbing project.

In a related article Sense & Sustainability has about water scarcity, the author argues:

If [water] demand is increasing and supply is stagnant, how do we avoid surpassing what our natural resources can bear?

We have to start by understand[ing] our own water usage.

Just as many individuals have altered their energy behavior, we should now begin finding efficiencies to reduce water consumption in our daily routines — reduce the water flow while washing dishes or turn off the faucet while brushing your teeth.

Her prescription prompted my good friend and former law professor, Geoff Manne, to remark, “The only problem is that, like politics, water is (largely) local.”

Water and politics may start locally, but when California uses 1/25th of its energy budget to migrate billions of gallons both the water and politics bloom beyond their “naturally” occuring boundaries. Thus the power California uses to slake the insatiable southern demand inexorably increases the power struggles among conservationists, agriculture, and urbanites. From that perspective, the 19% estimate is low because it does not include the significant energy these folks put in to protecting their slice of the sluiced substance.

Cross-Post: Carbon Storage: Subterranean Homeland Green

I am continuing to write for Sense and Sustainability about how an obscure legal trend in America’s heartland might be encouraging long-term carbon storage by shifting liability to state governments. For the market to blossom the usual cast of characters needs to agree that passing liability to state government makes sense. Find out all this and how Bob Dylan factors in by reading Carbon Storage: Subterranean Homeland Green.

Say what?

Water Pressure: How Businesses Can Reduce Water Risks

Dyeing for a drink?

With the quantity and quality of water diminishing globally (here, here, and, from a conservative think-tank, here) the likelihood of conflict grows. For global manufacturers that means increased environmental risks. To reduce their risks some companies, like blue-jean king Levi Strauss & Company, have started reducing their water consumption through stone-washing jeans with, well, stones, but not water. Considering the average pair of jeans uses roughly 900 gallons of water from cotton boll to garbage bin, there appears to be plenty of room to reduce water use. The problem facing global manufacturers is significant enough that the United Nations set up an entire program to help industry recognize their impact on and susceptibility to fresh, reliable water supplies. Current signatories include Nike, Coca-Cola, Danone, Nestle, and Levi Strauss. (To see which companies are delinquent, click here (spoiler: none of the aforementioned are delinquent).)
With the growing environmental risk of reduced water quality and quantity, what are some tools responsible businesses can use to limit their exposure to that risk, enhance local access to fresh, reliable water sources, and maintain commercial competitiveness? The UN’s CEO Water Mandate program is a good place to start. It offers tools for businesses to assess their water risk, to research on the link between water and climate change, and to see what other businesses are doing. Another useful tool that recently came into being is the Ceres Aqua Gauge. While mainly focused on giving investors a way “to assess, scorecard and compare companies on their management of water risk,” it would be a bold manufacturer that did not think it wise to see what their investors see regarding water risk. Finally, World Resources Institute recently launched Aqueduct to map water risks from the local to the global. Aqueduct smartly creates an overall water risk number by looking at three different categories: water quality, water quantity, and political risk (regulations and reputation).

Well of life

Smart manufacturers understand the value of water notwithstanding that in so many parts of the world it is poorly priced, if at all. At one point that paradox of value might have held water. But growing population, climate, industrial, and agricultural pressures increase the value of fresh, reliable water. Better to find ways to reduce water-associated risks than to find out what measures desperate people are willing to take to protect an absolute necessity.

California’s Epic Water Knot Tightens

California’s water allocation, distribution and policies form a liquid Gordian Knot. That’s not unexpected considering the powers that be manage 49 km3 of water per year (or nearly 13 trillion gallons) for interests ranging from ranchers and farmers to semi-arid cities to conservationists in the world’s 8th largest economy.  Perversely, every new management technique or policy California has adopted over the past 150 years only seems to strengthen that knot. So it is not surprising that  arch-villains, dynamite, and, most recently, allegations of political conspiracy and double-dealing enliven California’s water epic.

Another thread in the knot

San Diego is the latest background against which the epic is playing out. The San Diego Water Authority is suing the Metropolitan Water District of Southern California and others for allegedly raising rates in violation of several laws. The Water Authority alleges that defendants are overcharging them because they are improperly categorizing as water transportation costs the money that defendants pay the State of California for water supply and money they pay water conservation and supply increases.

As far as bureaucratic battles go, this water dispute is taking on unbelievable public dimensions. The Water Authority runs a website campaigning against the Metropolitan Water District with the look and feel of the District’s website, which has its own pages dedicated to responding to the litigation and media outpouring. The mudslinging is symptomatic of the complexity and politicization of California’s water allocation system.

The courts will ultimately deliver a decision that temporarily quells this disagreement. But history suggests that San Diego Water Authority never had full faith that purchasing from Metropolitan Water District was a great idea. Moreover, San Diegans have a probably well-founded anxiety that being at the end of California’s freshwater conveyance system means they are at a riskier position than those upstream. The legal decision will at best make this rate dispute end for a limited time. It will otherwise leave unaddressed the history and political incentives causing the parties to act (out) in the way they are. We can thus anticipate that until an Alexandrian Solution arrives more characters, shenanigans, and plot twists of California’s water epic will unfold.

Recent Renewable Energy Policy Shifts: Sparking Development or Resentment?

Complaints abound about the US not increasing its supply of renewable energy quickly enough. Many reasons account for this from market forces for less expensive fuels such as natural gas to risk aversion from environmentalists and neighbors who fear impacts on their surroundings. Continue reading