Mediation Still A Possibility In Cape Nitrogen Lawsuits

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By: Brian Kehrl
Published: 12/09/11

 The Cape Cod nitrogen pollution lawsuits filed by two environmental advocacy groups may still be settled out of court.

The federal Environmental Protection Agency and the two groups suing it for not doing more to force a cleanup of nitrogen pollution on Cape Cod want more time to try to reach a settlement before a trial process begins, according to documents filed in US District Court in Boston this week.

The Conservation Law Foundation, a New England-wide environmental group, and the Buzzards Bay Coalition along with the EPA and US Department of Justice this week requested an additional 45 days to negotiate a settlement in the two lawsuits. Both sides have been in negotiations since the lawsuits were first filed in August 2010.

The parties filed the request on Tuesday, the day of a court-imposed deadline to file a status report.

The groups have been in mediation since this past September, meeting weekly since October in a total of nine negotiating sessions, but have been unable to work out an agreement.

“Only during the last week did it become apparent that the litigants would not be in a position to report a definitive outcome of the mediation on December 6,” Eric E. Van Loon, the mediator in the case and a former Massachusetts assistant secretary of environmental affairs, wrote in a letter to the court.

“The participants have devoted enormous resources to this effort, negotiated in good faith, and made substantial progress towards settlement. A discrete amount of additional time is required to determine whether that can be achieved,” he wrote.

Federal Judge Mark L. Wolf had not yet determined as of yesterday afternoon whether he would grant the request for the additional 45 days. If he does agree to the added time, the next report would be due January 20.

If they do reach a settlement by the next deadline, they would need more additional time to finalize the agreement.
If they do not, a response by the federal agencies would be due by February 21 and the two parties would sort out a schedule for the litigation.

The status update gives the first window into negotiations, which all participating parties have pledged to keep confidential until the process is concluded, that may play a significant role in the environmental and financial future of the region.

The two environmental groups filed two separate lawsuits against EPA and Administrator Lisa P. Jackson, claiming that the federal government should be doing more to control nitrogen pollution on the Cape, potentially by increasing regulation of residential septic systems.

Towns across the Cape are in the midst of planning multi-million-dollar sewer projects to replace the at-home septic systems used by most residences. The projects are aimed at addressing nitrogen pollution in the area’s salt ponds, bays, and rivers, an environmental problem that has already led to sharp declines in water quality and resources in many waterways.

The lawsuits were received with mixed reviews, with some observers concerned that involvement by a federal judge would lead to a plan out of character with the region, while others applauded the suits as a way to accelerate a solution to the Cape’s most pressing environmental problem.

Details of the negotiation remain secret under confidentiality agreements signed by each participating party, but the request for additional time to negotiate a settlement indicates that they think they can reach an agreement, Andrew Gottlieb, executive director of the Cape Cod Water Protection Collaborative, said in an interview this week.
In a joint statement, Conservation Law Foundation and Buzzards Bay Coalition said, “All parties have worked diligently and devoted substantial resources to attempt to resolve the issues raised in both legal actions through the mediation and have made substantial progress in that regard. Despite the best efforts of all parties, the mediation was not concluded on December 5, 2011 before the status report was due. The parties are, therefore, requesting to continue the mediation process.”

State officials also participated in the mediation, according to a court filing requesting the additional time.
Mr. Gottlieb and Paul J. Niedzwiecki, executive director of the Cape Cod Commission, attended most of the sessions as nonlitigant observers. But last week the two county agencies removed themselves from the process.

“We were there primarily as nonlitigant participants, to educate the parties as to the needs and interests of the region, so they could take into consideration our position as they worked on a settlement,” Mr. Gottlieb said. “The settlement has progressed to the point where we don’t need to be in the room. We weren’t going to be signatories to any settlement, so it reached the point where we felt we had achieved what we wanted to.”

Mr. Gottlieb said the county’s input focused on educating the parties about what the region has accomplished in addressing the issue, voicing concerns about cost implications the projects may have on the area.

“Because we are not absolutely interested in just big pipe solutions, we were concerned about a federal model that has a history of imposing big pipe solutions being imposed on us,” he said.

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