WHAT DOES THE YOUNGERBUSINESS LAWYER NEED TO

KNOW ABOUT ENVIRONMENTAL LAW?

PROF. JIM O’REILLYUNIV. CINCINNATI COLLEGE OF LAW

GOOD & BAD NEWS

• Role of an environmental lawyer in business transactions:

• Due diligence about the land purchased, identifying material issues, explaining complex concepts to business executives and corporate lawyers

• Recognize audience may be intimidated or uninterested in environmental issues, drafting and negotiating skills.

DON’T BE DISILLUSIONED WHENWE ADVISE THE YOUNGER ATTY.:

• Understand impact of environmental issues on a particular transaction. • Understand terms of deal (is there an indemnity, "as is" vs. reps, asset v.

stock, corporate structure, etc); • Not every issue is material. Not every issues HAS to be addressed even

though you think it SHOULD be addressed. • Sometimes you will be forced to advance positions that might be

personally distasteful (e.g., negotiating "no look" or muzzle clauses, advising client it has no duty to disclose information to government or to remediate)

• Also, envtl lawyer often plays catch-up; the deal frequently is cast in stone and envtl lawyer gets information at last minute with little ability to alter deal terms

• sometimes being an environmental lawyer doesn’t mean you're protecting the environment-just that you're dealing with environmental issues

IS THIS TOO MUCH TO LEARN?

• FLEXIBILITY IS KEY TO ADVANCEMENT• CAREER OPTIONS ARE EVERYWHERE• MARKETS VARY GEOGRAPHICALLY, BY NICHE• START SMALL! HUGE NUMBERS OF RULES• MOST IMPORTANT: PATIENT, CAREFUL

COMPREHENSION EFFORTS

BUILDING BLOCKS

• 3 ROLES FOR ENVIRONMENTAL ATTORNEY:• (1) ADVOCATE IN ADJUDICATION – PERMITS &

PENALTY CASES – LIKE LITIGATION ROLES• (2) ADVOCATE IN COURT ENFORCEMENT –

VERY MUCH LIKE DEFENSE LITIGATION• (3) RULEMAKING ADVOCATE – PERSUADE, USE

LOGICAL REASONING & CLIENT’S DATA TO MAKE A PERSUASIVE POLICY CASE FOR RULES

BE FLEXIBLE AS AN ATTORNEY• Practicality, understand client risk thresholds >> no one answer fits all • Work toward creative solutions • Continuously improve good communication skills, • Pro-actively dealing with issues • Do not be afraid to tell client bad news • Be able to support your position when there is pressure to cave to deal

momentum to “get this done”• Because the practice of law is a people profession, you need to have good

interpersonal skills. • Regulators don’t make much money but have lots of power; you always

need to be respectful • Learn to argue or fight fairly

COMMON NORMS TO KNOW• FEDERAL/STATE LINES VARY BY STATUTE• CONGRESSIONAL OPTIONS DELEGATED, SOME

TO BE MICRO-MANAGED, SOME DISCRETION• ABSOLUTELY MUST PAY ATTENTION TO THE

DETAILS IN THE STATUTE, ESPECIALLY ANY EXCEPTIONS OR CONDITIONAL CLAUSES

• ABSOLUTELY VITAL TO UNDERSTAND RULES FOR AGENCY DECISION MAKING

• ENGINEERS RUN ENVTL AGENCIES, SEEKING A CONSISTENT UNIFORM OUTCOME

SUCCESS COMES FROM…

• MASTERY OF DETAILS• PATIENCE IN FACE OF SLOW PROCESS STEPS• FLEXIBILITY TO ADJUST TO CHANGE• READING FOR COMPREHENSION & FOR THE

INTER-CONNECTEDNESS OF ITEMS• WORKING RESPECTFULLY WITH TECH TYPES• HAND-HOLDING SKILLS WITH FRUSTRATED

CLIENT DEMANDING FASTER OUTCOMES

“PLAYS WELL WITH OTHERS…”

• US EPA, HQ AND REGIONS; RULES & GUIDANCE ARE CENTRALIZED, INTERPRET’N IS SOMETIMES UNEVEN ACROSS REGIONS

• COUNCIL ENVTL QUALITY: NEPA IMPACTS• ARMY CORPS OF ENGINEERS: BIG WATER• US DEPT AGRICULTURE: FOREST & FARM ENV.• STATE EPA AGENCIES: PERMITS, INSPECTIONS,

HIGHLY VARIABLE

POLITICS & ENVTL DECISIONS

• CAREER FEDS DON’T LIKE POLITICAL GAMES• CONGRESS HAS SHORT ATTENTION SPAN• FUNDING APPROPRIATORS CAN CUT OFF $$• “DEREGULATE” & “CUT RED TAPE” SIGNAL A

POLITICAL ATTACK ON EPA IS COMING• JOB STIMULUS, RETENTION AFFECTED BY ENV

EFFECTS OF PROJECTS SEEKING PERMITS, SO EPA OPPONENTS BLAST JOB-KILLER RULES

Professor Bob GreeneCumberland School of Law

Samford University

A. There is no one comprehensive environmental law

1. There are a series of laws enacted to address particular environmental problems.

2. The Environmental Protection Agency, formed in 1970, brought together many scattered environmental responsibilities.

3. A number of other federal agencies also have environmental responsibilities.

4. Much environmental law is state law.

B. Five Major Themes1. The statutes represent an uneasy alliance

between human health and environmental concerns.

2. Many of the major statutes are opportunistic.3. Congress has been wary of creating a federal land

use scheme.4. The statutes show a preference for regulation

(rather than subsidization or planning).- although amendments encourage market-based approaches.

5. Most programs created by federal statutes can be delegated to the states.

C. Two Basic Divisions

1. Government as regulator of private conduct having an impact on human health or the environment.

2. Government as developer and proponent of public works.

D. Three Types of Environmental Statutes

1. Waste management and pollution control statutes

2. Health and safety laws3. Resource management laws

E. Six Regulatory Targets

1. Activitiesa. Productsb. Pollutantsc. Land uses

2. Entities

a. Industrial facilitiesb. Government agenciesc. Individuals

F. Three Bases for Controls

1. Health (or environment)2. Technology (or feasibility)3. Balancing

G. Thirteen Types of Regulations (or standards)1. Design standards2. Performance standards3. Ambient standards4. Emission limits5. Use instructions (including prohibitions)6. Marketable allowances7. Taxes or emissions charges8. Subsidies9. Deposit-refund schemes10. Liability rules and insurance requirements11. Planning or analysis requirements12. Information disclosure (labeling) requirements13. Financial or Regulatory Incentives

H. Ten Common Features of Modern Environmental Statutes

1. They provide national standards regulating the handling, emission, discharge and disposal of harmful substances.

2. Standards are applied through general rules, through permits, or both.

3. EPA is given the authority to enter and inspect and as well as other authority for information requests or demands, monitoring, testing and reporting.

4. EPA is given authority to issue notices of violation and administrative compliance orders.

5. EPA is given authority to seek injunctive relief through civil courts and/or to impose it administratively.

Ten Common Features of Modern Environmental Statutes cont.

6. EPA can seek administrative penalties and civil or criminal remedies. This authority generally allows the agency to eliminate, through penalty assessment, any economic advantage gained by a non-complying source as a result of its non-compliance.

7. EPA has authority to address emergency situations.8. EPA may delegate to the states the authority to

administer and enforce programs; however, EPA retains independent enforcement authority.

9. Federal facilities are generally required to comply with substantive provisions of EPA statutes, although enforcement raises other issues.

10. EPA implements these laws through regulations, assembled in Title 40 of the Code of Federal Regulations (CFR).