By Hannah Satein for EDRBlog.org
Though it may seem paradoxical, litigation filed by a participant in a collaborative process may offer a tool to help facilitate collaboration. Traditional collaborative governance scholarship suggests that trust is essential to collaborative processes and that litigation filed by a participant in the midst of a collaborative process will destroy the trust needed for successful collaboration. However, other scholars have argued that strong imbalances of power can exist within environmental collaboratives, with natural resource users possessing more power than environmental interests, which can lead to mistrust and a lack of commitment to collaboration on both sides. In this context, litigation can serve as a mechanism to facilitate collaboration by rebalancing power and increasing commitment to collaboration for both powerful and weaker players. I recently tested this proposition for my master’s research, Fighting to Cooperate: Litigation, Collaboration, and Water Management in the Upper Deschutes River Basin, Oregon, in the Water Resources Policy and Management program at Oregon State University. In my research, I examined the impact of litigation filed under the Endangered Species Act on two collaborative processes underway in the Upper Deschutes River Basin, Oregon to change the water management regime.
Water in the Upper Deschutes River Basin has been almost fully allocated, predominantly for agriculture, since the early 1900s. However, the basin faces new pressures from growing populations, climate change, and unmet environmental needs. Thus, the two collaborative processes arose to try and shift the water management of the Deschutes River to address these needs while still maintaining historical agricultural uses. Stakeholders representing the diverse interests in water management in the basin were involved in both processes including local governments, state and federal agencies, environmental organizations, irrigation districts, and the Confederated Tribes of Warm Springs. However, a participant in the processes, an environmental organization, was concerned that they were not progressing quickly enough to prevent significant ecosystem impacts and filed litigation under the Endangered Species Act to force specific water management changes.
The findings from my research support the argument that litigation can serve as a mechanism to facilitate collaboration. While the litigation did have negative impacts on trust and communication within the two collaborative processes, stakeholders involved believed the collaboratives would still be able to successfully achieve their goals. More importantly, stakeholders believed that the litigation shifted the balance of power in the collaborative processes. The litigation raised the risks of not collaborating for the powerful stakeholders, the irrigation districts, such as negative economic impacts from a judicially mandated change to water management and the loss of control over the shape of the future water management solution. Moreover, litigation also created more assurance for the weaker stakeholders—those representing environmental interests—that their priorities would be met in the collaborative processes. These changes ultimately strengthened both groups’ commitment to the collaboratives and changing the water management regime.
While stakeholders perceived the litigation to be beneficial in facilitating the collaborative processes, they still believed that the collaboratives offered the best venue in which to craft the new water management regime because collaboration would generate a more sophisticated and balanced solution than one developed in the courts. This perspective supports the widely-held view, one shared by scholars on both sides of the litigation and collaboration debate, that collaboration can generate more innovative, flexible, and balanced solutions than traditional policy tools such as statutes, regulations, and litigation arising out of citizen suit mechanisms.
Stakeholders in the Upper Deschutes River Basin are still working to reconcile all the competing needs and complex factors required to establish a new water management regime for the basin, but the results of my research indicate that the litigation has increased the likelihood that the resulting change will truly meet the needs of all the diverse interests in the basin. More generally, the findings of my research add support to the argument that while collaborative processes offer strengths over more traditional policymaking tools, these traditional tools serve to support collaborative processes, and ultimately both are critical for strong, sound environmental management.
Hannah Satein recently completed her Master of Science in Water Resources Policy and Management at Oregon State University. She is pursuing PhD programs for 2019 with the intent to continue studying the interplay of collaboration and more traditional policymaking tools in natural resources management. Hannah is currently spending her time sharing her love of active travel and beautiful outdoor spaces leading bike tours across the U.S.