Resolving Public Health Conflicts with ADR

Resolving Public Health Conflicts with ADR

Large-scale coal seam gas and wind energy developments have been introduced by many countries with the goal of moving to a low carbon economy to combat climate change.

But both these projects have raised community concern over potential risks to public health.

Divergent scientific opinion has led to information conflict over the possible long-term risks to public health from some of the chemicals, or chemical mixtures, used in the hydraulic fracturing (“fracking”) process to crack the coal seams to extract the natural gas in CSG operations.

Also, the scientific methodology for predicting risks to public health from chemicals, but especially chemical mixtures, used in CSG operations is problematic. This leads to scientific uncertainty.

There have been claims by people living near wind farms in North America and Australia that infrasound produced by wind turbines causes an adverse risk to public health suffered by some people who live in close proximity to wind farms.

Divergent scientific opinion has led to scientific uncertainty whether infrasound produced by the turbines causes adverse health impacts similar to those described for a medical condition called “Wind Turbine Syndrome”?

But, there is another significant need for safeguarding the community from the potential risks to public health from coal seam gas and wind energy developments.

That is, to ensure environmental management and monitoring programmes – as prescribed by Government as part of the environmental approval and licensing process – provide adequate public health safeguards for the community?

Developing environmental management and monitoring programmes requires Government and industry to have in place effective community engagement processes. The community should be able to rest secure in the knowledge that their viewpoints have been properly taken into account in the programmes approved by Government.

It is not surprising, because of the scientific uncertainty over the potential long-term public health risks from coal seam gas and wind energy developments, that public opinion is polarised.

Polarised public opinion decreases public trust and confidence in the traditional community engagement processes relied on by Government and industry to offset community concern over scientific uncertainty.

The alternatives to community engagement are litigation or ADR.

The advantage of ADR and interest-based negotiation, where scientific uncertainty exists and where public perceptions of risk need to be understood, is that it involves a process of shared responsibility, joint problem-solving and agreement by consensus — all features that are not part of litigation.

Also, courts have less flexibility, compared with ADR and interest-based negotiation, for balancing the broad public policy considerations that affect competing land use interests when decisions have to be made over the management of risks.

The ADR pathway for resolving scientific uncertainty and divergent expert scientific opinion over the potential risk to public health from coal seam gas and wind energy developments needs to be based on conflict management principles. It requires scientific conclusions that are both relevant and reliable.

The pathway for achieving this goal is the scientific round-table – a joint fact-finding strategy based on the ADR process of independent expert appraisal. The representatives at the scientific round-table are scientific professionals, having expertise in the subject matter of the conflict.

An independent dispute resolver convenes the scientific round-table. The dispute resolver undertaking an independent expert appraisal would require expertise in science and ADR process skills.

One objective of the scientific round-table is for the scientific experts to reach consensus on scientific issues in dispute. The round-table gives effect to one of the key elements of principled negotiation: insisting that agreement on disputed issues is based on the use of a common set of objective criteria to evaluate the scientific database.

Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion based on an objective and impartial analysis of all relevant and reliable scientific data. The purpose of the non-binding opinion is to facilitate the experts to reach consensus on the disputed issue.

The dispute resolver is also required to prepare a summary of outcomes from the scientific round-table – which then become the foundation for the next stage: conflict resolution and negotiating agreement using evaluative mediation.

The ADR pathway for dealing with the issue of providing adequate public health safeguards for the community from coal seam gas and wind energy developments, through effective environmental management and monitoring programmes, needs to be based on conflict resolution principles.

For environmental management and monitoring programmes to be effective, there must be public trust and confidence in the Government agencies involved in the environmental regulatory control of risk from coal seam gas and wind energy developments.

United States experience indicates that “no other strategy offers a more telling acknowledgement of the legitimacy of local concerns” than those who have to live with an activity that may represent a potential risk to public health know they can trust the environmental management and monitoring programmes approved by government.

In this regard, the starting point for government agencies for building public trust and confidence with the community – and to effectively reflect community concerns – is to characterize and then assess the public health risk that might arise from coal seam gas and wind energy developments.

Given that the community has to live with coal seam gas and wind energy developments, the responsibility for determining an acceptable level of risk to public health – using risk management – must be shared between government, industry and the community.

ADR and interest-based negotiation – unlike the legal process – provides the dual approach for risk management for determining an acceptable level of risk , as advocated by the International Risk Governance Council: to provide equal room to consider both objective scientific evidence and value-based community perceptions of risk.


Dr Ted Christie is an environmental lawyer, nationally accredited mediator and an environmental scientist.  He specializes in alternative dispute resolution processes for finding sustainable solutions for environmental conflicts where divergent expert scientific opinion prevails.  He is based in Brisbane, Queensland.

 
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