Bridging the Gulf: Using Mediated, Consensus-Based Regulation to Reconcile Competing Public Policy Agendas in Disaster Mitigation
44 Pages Posted: 6 Aug 2010 Last revised: 7 Jul 2015
Date Written: August 6, 2010
In the Deepwater Horizon – Macondo well debacle, experts from the petroleum industry, along with government and non-governmental organizations promoting stewardship of the environment, were among those who planned, executed and advised poorly during the petroleum products spill period. Yet some will be highly vocal persons seeking to influence policies and future regulations. In circumstances involving environmental disasters, ostensibly there are no experts. Conundrums of science and ethics in disaster mitigation fracture debate over the proper courses of action and future government authorizations of industry action. No one person, or modestly – sized group of persons, has sufficient experience or ability to prescribe how to protect ecosystems from lingering impacts of profound environmental disruption.
Expertise is an elusive concept. Without wise judgment, however, experts trade in illusion. When a natural disaster on a major scale occurs, governments are tasked to translate public policies into implementing legislation and regulations to mitigate the calamity’s impacts in the present and to curb behavior promoting recurrences. Ironically, in numerous human-caused disasters, those very persons whose perspectives and judgments made matters worse take roles at the center of policy discussions on cure and future prevention. Government, industry and environmental “authorities” weigh in to prescribe regulations.
Following the Macondo well “static kill” in August, 2010, a call will issue for experts to be anointed, to lead adoption of new policies and regulations to protect the environment of the Gulf of Mexico. Among those “authorities” are some who lack public credibility as problem-solvers for the Gulf’s environment. Anointing certain particular persons, or small groups, to prescribe long-term strategies for the future of the Gulf’s occupancy and exploitation ignores the “dearth of profound wisdom” problem. For the Gulf, neither government nor petroleum industry officials – nor, for that matter, private enterprises’ (including NGO heads) leadership and other elites – should be anointed to prescribe solutions that comprehensively address competing values in science and ethics. Sound policies of long duration must be adopted to limit the extent of irreversible ecological effects.
The optimal environment to accommodate vital interests of self-interested stakeholders with the needs of the natural world requires the collective intelligence of informed citizens from myriad sources. This paper describes how that collective intelligence might be marshaled efficiently. Implementing “percolating problem-solving,” followed by a process of mediated collective bargaining, can lead to sensible rules adoption for humankind’s stewardship of the Gulf of Mexico or of any environment spoiled by a natural or human-made calamity. Mediated collective bargaining optimizes the use of science in natural resource management and in adopting sustainable public policies. Systemic processes for inputs through group processes on specific disaster mitigation issues crystallize the vital interests of stakeholders. In turn, bargaining among “interest caucuses,” populated by a spectrum of stakeholders and supported by science panels that objectively find relevant facts (minimizing value-judgments), produces collaboration in policy adoption. These methods enhance social acceptance of public visions addressing disaster mitigation implemented through administrative regulations and legislation.
Note: This paper, published in Volume 74 of the Albany Law Review in March, 2011, has been updated (indicated by highlighting of text and footnotes) following (a) the issuing by the National Commission on the Deepwater Horizon and Offshore Drilling's Final Report,on January 11, 2011 and (b) the Final Report released on September 14, 2011 by the BOEMRE/U.S. Coast Guard Joint Investigation Team (Volume II of that Report; Volume I having been released on April 22, 2011), and (c) conclusion of the Phase Two Trial on the quantity of oil spilled by the Macondo Well into the Gulf and issuance of Judge Barbier's order of January 15, 2015. Cross references to footnotes numbers may have been compromised in the process of updating the paper.
Keywords: negotiation, bargaining, environment, natural resources, mediation, mediators, collaboration, consensus, Deepwater Horizon, environmental calamity, experts, public inputs, town hall, public participation, negotiated regulation, consensus bargaining
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