Use and Benefits of Alternative Dispute Resolution

A Statistical Summary Prepared by the Department of Justice

If anyone needs statistical evidence that ADR saves money and reduces litigation, here it is. Last year the government saved over $12 million in litigation and discovery expenses, over 14,600 days of attorney time, and avoided over 1,200 months of litigation by the use of alternative dispute resolution (ADR) techniques, according to the U.S. Department of Justice. These savings were achieved primarily through the use of mediation at a cost of under $2 million. Six dollars saved for every one dollar spent is pretty good cost/benefit ratio, if you ask me.

This data is being reported by the U.S. Department of Justice Office of Dispute Resolution (ODR). The ODR was set up to develop Justice Department policy regarding the use of ADR.

These are just the government’s cost savings and, according to the ODR, are “based on detailed case reports submitted by the lead trial counsel in all cases in which a private neutral conducted an ADR process in Department litigation across the country.”

Also note that in 2011 nearly 75% of the voluntary ADR proceedings (cases in which the government and other parties agreed to ADR without being ordered by a court) were “resolved” (i.e., settled). About 50% of cases ordered into ADR, by contrast, were resolved – still a significant percentage but perhaps an indication of why voluntary ADR works so well.

This chart is pretty strong evidence of the cost-saving benefits of ADR.

Category	TOTALS
	2011	2010	2009	2008	2007
Success Rates for ADR
Voluntary ADR Proceedings	73% Resolved	80% Resolved	78% Resolved	79% Resolved	69% Resolved
Court-Ordered Proceedings	53% Resolved	46% Resolved	42% Resolved	51% Resolved	50% Resolved
Cases in Which ADR Achieved Benefits	86%	73%	83%	No Data	No Data
Quantified Benefits of ADR
Litigation or Discovery Expenses Saved	$12,185,750	$11,662,500	$5,940,287	$3,387,750	$3,001,000
Days of Attorney/Staff Time Saved	14,656 Days	12,260 Days	5,829 Days	23,010 Days	2,797 Days
Months of Litigation Avoided	1,231 Months	930 Months	849 Months	661 Months	429 Months
DOJ Support ADR
Expenditures for Mediation Services	$1,931,900	$1,547,874	$1,141,103	$1,362,320	$1,049,891
Number of Case Authorized for ADR Funding	470	718	528	522	505

Source: U.S. Department of Justice, Office of Dispute Resolution

U.S. Supreme Court Justices Skeptical of EPA in Sackett v. EPA

I recently blogged about a case before the Supreme Court testing whether parties can seek pre-enforcement judicial review of EPA orders (ACOs) without being subject to fines of up to $70,000 per day for failure to comply with the order.

My earlier blog described the essential details of the case, in which, to recap briefly, the EPA ACO prohibited the Sacketts, owners of a property near a lake, from filling in a portion of the property because EPA claimed it was a wetland.

Supreme Court commentators seem to agree that the oral arguments do not bode well for the government. Lyle Denniston wrote in SCOTUSblog, “With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.”

The Legal Planet blog stated: “What distinguishes this case from a routine examination of dry administrative law concepts is the overt hostility towards EPA and its regulatory efforts that many of the Justices displayed in their questions from the bench.”

Here is an example of from the transcript of the oral argument:

Justice Breyer: If we agree then, look, for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen. So tell me why I am wrong on those two points. (A copy of the argument transcript can be found here)

The interesting question is likely to be how the Sacketts win, not whether, and the reasoning and basis for the decision is the important issue, not who wins and who loses.

Will the opinion be a narrow ruling, limited to enforcement of the Clean Water Act? Will it include other federal environmental statutes enforced by EPA by Administrative Orders?

And, most significantly, will the Court base its decision on constitutional grounds, as suggested in several friends of the Court briefs, and hold that the lack of judicial review of ACOs is an unconstitutional deprivation of due process?

Supreme Court Case on EPA’s Power to Order Environmental Compliance

On January 9, 2012, the Supreme Court will hear oral argument on a case that may establish the extent, both under law and the Constitution, of the power of the EPA to order compliance with certain environmental laws – and seek judicial enforcement of those orders.

The two questions presented to the Court are 1) whether parties can seek pre-enforcement review of EPA administrative compliance orders under the Administrative Procedure Act, 5 U.S.C. §704 (“APA”); and 2) whether, if not, the inability to seek pre-enforcement review is a violation of the Due Process Clause of the Constitution.

The Court granted certiorari to hear an appeal of Sackett v. U.S. Environmental Protection Agency (Docket No. 10-1062) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1062.htm. This case comes up from the Ninth Circuit Court of Appeals, the Circuit with the most cases, by far, recently reviewed and overturned by the Supreme Court. In the last term, the Supreme Court reversed the Ninth Circuit in 19 out of 26 cases, an extremely high 79% reversal rate.

The facts of the case are about the actions Chantell and Michael Sackett took on their own 0.63-acre -vacant lot near Priest Lake in Idaho. The Sacketts filled in a portion of the lot with dirt and rock to build a house. EPA issued a compliance order alleging that the filled in area of the property is a wetland subject to regulation under the Clean Water Act, 33 U.S.C. §1251 et seq. (“CWA”), and that the Sacketts were unlawfully discharging pollutants into waters of the United States without a permit, in violation of 33 U.S.C. § 1311(a).

The Sacketts, without first seeking a CWA Section 404 permit, a jurisdictional determination or informal guidance from the Army Corps of Engineers or EPA, sought a hearing with EPA to challenge the finding that their property was subject to the CWA; EPA refused to grant the hearing, so the Sacketts filed suit in the US District Court seeking an injunction and declaration from the Court that EPA did not have jurisdiction, alleging that EPA’s compliance order was (1) arbitrary and capricious under the APA; (2) issued without a hearing in violation of the Sackett’s due process rights under the Constitution; and (3) issued on an unconstitutionally vague standard of “any information available.”

The District Court granted EPA’s motion to dismiss based on lack of subject matter jurisdiction, agreeing with the government that the CWA precludes judicial review of EPA compliance orders before EPA initiates an enforcement action in federal court. The Ninth Circuit agreed (622 F.3d 1139), stating that “We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process.” Id. at 1141.

This case has become a big deal for the environmental law cognoscenti. Amicus briefs in support of the Sacketts were filed by many, including the American Farm Bureau Federation, the U.S. Chamber of Commerce, the Competitive Enterprise Institute, the Mountain States Legal Foundation and the American Petroleum Institute, among many others.

Interestingly, the APA Watch, a nonprofit organization which describes itself as devoting “significant effort to combating federal agencies’ exceeding their authority under the Administrative Procedure Act…” filed a brief supporting neither party but expressing its concerns about issues not raised by the parties to this litigation under the APA to protect future litigants.

While not raised by the Sackett’s in their case, APA Watch points out that parties injured by non-final agency action have an independent right of redress under the APA §10(c), even when that action is not made reviewable by the underlying statute.

This case presents equities on both sides of the question. On the one hand, agencies charged with protecting the environment must have the statutory and judicial tools necessary to enforce against parties who take action – even on their own properties – that violate the environmental laws that were enacted to protect all of us; on the other hand, the Constitution sets forth due process principles intended to restrain unfair and inequitable governmental actions.
I look forward to seeing how the Supreme Court balances these equities; my guess is that whatever the decision, the Court will recognize and protect the APA interests articulated by APA Watch.

This is the Kind of Person I’d Hire as My Attorney

Like many of you, I read a lot of blogs, some of which are even worth reading and fewer of which might even be true.

I recently read a blog that says it all about our modern life, the practice of law, being a parent and human values. Think about this when you are sweating your practice:

“Hey, Dad, you’ve got a pretty good job.” “Why’s that, Jere?” “Because it’s air-conditioned, and you can get a root beer whenever you want one.” [Think about that the next time you're sitting in your office cursing a colleague, opposing counsel, a client or a judge: "It's air-conditioned, and I can get a root beer whenever I want one."]

The blog is written by Mark Herrmann, Vice President and Chief Counsel for Litigation at Aon, a risk management, insurance and reinsurance brokerage and human capital and management consulting firm. Herrmann is the author of The Curmudgeon’s Guide to Practicing Law which, while I haven’t read yet, intend on doing so simply because of the title.

Herrmann’s blog, Inside Straight: Things My Son Said is funny and oh so very true.

I commend it to your attention. Read it here.

Graphic Video Showing Changes in the Surface Temperature of the Earth

Richard Muller, professor of physics, McArthur Prize winner and principal investigator for the Berkeley Earth Surface Temperature (BEST) project, took a hard look at the actual data regarding changes in surface temperatures on the Earth over the past two centuries.

The BEST project was funded in part by the Charles G. Koch Charitable Foundation, one of the Koch brother entities dedicated to “the advancement of economic freedom” and a conservative climate change skeptic.

Climate change skeptics loved Muller – until he reported on the data.

Muller’s research group has put together a video that shows the changes. Wow.

The video makes the data come alive. It is impossible to miss the huge temperature changes. Look at especially the post-1950 changes.

Watch the whole video; it only takes a couple of minutes. Here's the link.

For more about BEST, see here.