In a nutshell
Environment attorneys advise companies on federal, state and local laws and regulations relating to public health, welfare and the environment. The type of conduct that is regulated includes industrial activity, the development of natural resources, the use of land and everyday activities like driving a car. BigLaw attorneys primarily defend companies that are subject to these laws and regulations.
The laws attorneys work with will depend on the environmental medium: for example, air, water, waste and natural/cultural/historical resources (this touches on historical preservation, land use and endangered species) all have their own statutes and programs. The Clean Air Act – “one of the most complex pieces of legislation on the books,” according to Hunton & Williams partner Bill Brownell – is one example.
The types of proceedings handled by environmental lawyers are also varied. Administrative agency work involves dealing with agencies. In federal government, that includes the Environmental Protection Agency (EPA), the Department of the Interior (DOI), the Department of Agriculture (DOA), the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC). Legislative work involves working with Congress and advising companies on federal legislation and lobbying.
"An environmental lawyer will practice before Congress, administrative agencies, federal and state courts, and international tribunals and organizations. The practice of environmental law also involves politically controversial subjects that one reads about in the papers every day." — Hunton & Williams partner Bill Brownell
What lawyers do
- “I tell students that the practice of environmental law touches on everything a lawyer can do. An environmental lawyer will practice before Congress, administrative agencies, federal and state courts, and international tribunals and organizations. The practice of environmental law also involves politically controversial subjects that one reads about in the papers every day,” says Hunton's Brownell.
- He adds: “When a statute or law is changed it initiates a process that can last for years, from lobbying legislators, to working with agencies that develop rules, to challenging or defending those rules in court, to seeking permits and licenses under those rules, to defending clients in enforcement proceedings.”
Realities of the job
- The laws and regulations have become increasingly complicated over the years. Thus, much of what environmental lawyers do on a daily basis is to “make sure that clients understand all the rules to which they are subject and work with them to ensure they are complying with those rules,” says Hunton & Williams partner Andrea Field.
- “Often, the first time a client realizes that there’s a problem is when the EPA starts an enforcement action, charging the client with breaking federal law." Because the laws are often unclear, “it is the attorney’s job to determine if legitimate arguments can be made that, in fact, the client has not violated the law. And if there are violations, then it is the lawyer’s job to negotiate a reasonable – and, if possible, nonpunitive – way for the client to come into compliance.”
- This field of law is “constantly changing,” according to Field. “International tribunals, Congress and state legislatures enact complicated laws. That prompts regulators to adopt complicated rules and issue guidance to implement the laws.” And then there are the advocacy groups, which can “file lawsuits and do other things to try to push regulators into taking (or not taking) additional actions.” Staying abreast of all such changes “necessarily keeps practitioners on their toes.”
- The legislation is sometimes politically motivated, so environmental lawyers can end up wading into controversies among different branches of government. “And just as you start getting a handle on a program, there is a national or state election, and that ushers in new legislators and new regulators, which restarts the cycle of change,” says Field. But the changing players and changing requirements make things interesting. “As an environmental lawyer, I not only deal with nuts-and-bolts factual and legal issues – I also get to argue important issues of administrative and constitutional law.”
"Day to day we might be involved in rulemaking, consulting with clients or defending an enforcement action, but in each of those contexts we are essentially engaging in the larger debate about how to use the world's resources in a responsible way." — Robert Wyman, Latham & Watkins
- "Practicing environmental law requires an aptitude for sophisticated legal analysis, an aptitude for simplifying complex issues, and an ability for written and oral advocacy,” Bill Brownell says. Andrea Field adds: “And just like full-time litigators, you have to roll up your sleeves and become fully familiar with the facts in your cases. Tempting as it may be to delegate doc review to others, you have to stay involved because you have to know the facts.” A lot of reading case law and doc review can be involved. And there can be a lot of documents.
- Robert Wyman, partner and environment don at Latham & Watkins, says: "Almost everything one does touches on an important area of public policy. Most environmental law practitioners find the job personally rewarding because they have strong views about how environmental risk should be addressed. The practice of law can become routine, but if you're passionate then it never gets old."
- Wyman adds: "Day to day we might be involved in rulemaking, consulting with clients or defending an enforcement action, but in each of those contexts we are essentially engaging in the larger debate about how to use the world's resources in a responsible way."
- Betty Moy Huber, co-head of the environmental group at Davis Polk, says: "An environmental lawyer must have solid communication skills. Even at the most junior level you'll be analyzing very complex environmental issues or laws and having to explain these in plain English to a senior lawyer or a client in a very clear and crisp manner."
- She adds: "You become part of the client's team. They depend on you and often there's a real feeling of camaraderie. This is very rewarding, but the responsibility also creates pressure."
- The political debate surrounding climate change has led to increasingly complex legislative proposals and regulation. “Environmental lawyers will be busy in the next few years preparing clients for possible legislative and regulatory changes,” says Betty Moy Huber of Davis Polk.
- In 2013, President Barack Obama outlined a new national action plan centered on climate change. This included steps to reduce carbon pollution and ensure communities are fully prepared for the effects of climate change – like increased storms, droughts and wildfires.
- The same year, the Natural Resources Defense Council – an environmental group that has had a strong influence on Obama's climate change agenda – recently suggested changes that could lead to even steeper reductions in carbon pollution than those outlined by the President.
- The government has begun to put forth measures to combat global warming, but without the need for legislation from Congress. As an example, it recently announced plans to start cutting emissions of methane as a means of addressing climate change.
- Climate change (and the environment generally) may be a top priority for the government, but it doesn't seem to be as high on the list of concerns for the US public. According to a poll by research company Gallup, only 24% of those who participated worried about climate change 'a great deal'. Similarly, a mere 31% worried a great deal about the quality of the environment. Both were near the bottom of the list, with race relations the only issue to have been ranked lower.
- In August 2015, President Obama established the Clean Power Plan – the first-ever carbon pollution standards for existing power plants. However, in February 2016 the Supreme Court voted to block the plan and debates about its implementation are ongoing.
- After two weeks of talks in Paris in late 2015, world leaders came to an agreement governing greenhouse gases, emissions mitigation, adaptation and finance from 2020. Conference head Laurent Fabius, France's foreign minister, said this 'ambitious and balanced' plan was a 'historic turning point' in the goal of reducing global warming. At the time of writing, the Paris Agreement has yet to be adopted.
- In 2014, the California Legislature passed the Sustainable Groundwater Management Act, a statute designed to create comprehensive sustainable management of groundwater. While the legislation conferred oversight authority to government bodies, primary implementation rests with local groundwater sustainability agencies (GSAs). At the beginning of 2016 the GSAs began implementing legislation to improve California's groundwater supplies. There has been support for GSAs in Berkeley and Stanford law journals as well as in state legislatures further afield and one hopes they will succeed in their endeavors.
- Contaminated water supplies due to aging pipes in Flint, Michigan led to the exposure of between 6,000 and 12,000 children to drinking water with high levels of lead. The children may experience a range of serious health problems as a result of the exposure. In response to the crisis, on January 5th 2016, the city was declared to be in a state of emergency by the Governor of Michigan, Rick Snyder, before President Obama declared it as a federal state of emergency. The Flint water crisis has become a big issue among the nominees for the 2016 Presidential election candidacies.
- “Economics can have a large effect on how you handle specific environmental matters. A client may start off wanting to litigate every conceivable issue in an enforcement case, but the cost of doing that – and the animosity that can create in dealing with regulators with whom the client might need to do business – usually prompts clients to try to find a reasonable middle ground to resolve cases,” Andrea Field says. A down economy is therefore likely to lead to more cases settling out of court in this area.