The State of the States in Environmental Dispute Resolution:
TEXAS

Status:
Texas has a well-established environmental mediation program administered by the Texas Natural Resources Conservation Commission (TNRCC). The program primarily addresses contested permitting applications, but is involved in all areas of TNRCC jurisdiction. The mediation office approaches parties and offers its services once it is determined that an administrative hearing is necessary but before the case is sent to a hearing. The program has been in place since 1990 and has a good reputation within the agency and the regulated community.

Legal Authority:
TEX. GOV’T CODE ANN. §§ 2008.001–.055 (West Supp. 1999) (authorizing the establishment of ADR procedures for the resolution of disputes before state agencies).

Contact Information:
     Carl Forrester, Director
     ADR Office
     Texas Natural Resources Conservation Commission
     MC-222
     PO Box 13087
     Austin, TX 78771
     Phone: (512) 239-4010
     Fax: (512) 239-4015
     E-mail: cforrest@tnrcc.state.tx.us

Program Summary

The TNRCC has a long-standing mediation program focused on contested permit applications—e.g., air, water, and landfill. When it is determined that a hearing is warranted, but before a hearing is scheduled with an administrative law judge, the office approaches the parties and offers mediation services. If an agreement is not reached in mediation or if any party refuses the offer to mediate, the case goes to a hearing within four to six weeks. The program is prepared to provide arbitration if parties request it, but has not yet arbitrated any cases.

In 1989, the chair of the Texas Water Commission (now the TNRCC) directed that the mediation program be started, and, by 1991, program rules were adopted and the program started. The program grew slowly. First, it was limited to water permitting disputes because they usually had smaller parties and easier science than more complex environmental cases. But as capacity grew and the program gained support with the agency, regulated community, and stakeholders, the program expanded to other media and more complex cases. The program has mediated cases in all areas of the TNRCC’s jurisdiction including some enforcement matters, Superfund clean-up efforts, and innocent landowner access cases. Today, the program is an independent ADR office within the TNRCC, reporting directly to the TNRCC Chair.

• Postmediation evaluations suggest that mediation has positive unintended consequences: people leave the mediation with a positive feeling that government is listening and is involved.
• Laptops and portable printers can be valuable tools to take to mediations. Boilerplate language can be saved on the computer, then when agreements are reached parties may draft and sign the settlements at the negotiations. This allows the parties to walk away with a signed copy of the agreement.
• Maintain a list of outside mediators. Even if parties do not use it, they feel better knowing that it is an option.
• If possible, do not charge for services.
• Maintain a reputation for neutrality.
• Most cases can be resolved in one or two days. If they are not settled by then, the cases can be sent back to hearings. This prevents abuse of the process and the use of EDR to delay hearings.
• Support for a successful program must come from the highest levels in the agency.
• Starting the mediation process early—before cases are sent to hearing—will save considerable administrative costs.
• It is difficult to evaluate an individual mediator’s performance. You cannot just use the rate of cases successfully closed, as each case is different.

Offices

Center for Public Policy Dispute Resolution, University of Texas School of Law, 727 E. 26th St., Austin, TX 78705, Phone: (512) 471-3507, Fax: (512) 232-1191.

Publications

Rebecca Lynn Urquart, EDR and ADR with the EPA, the TNRCC and Y-O-U, TEX. LAW., Oct. 1996, at 28.

Further information about EDR in Texas is provided by the ADR Section of the State Bar of Texas at the following Website: http://www.texasADR.org

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington