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.”
"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
- According to Patrick Dennis, co-chair of Gibson, Dunn & Crutcher's environmental litigation and mass tort practice group, young environmental lawyers will find that “many of the issues are recent and have not been the subject of litigation.”
- He also remarks: "It's a practice area that is very much subject to politics, legislation and developments in science. For example, now with mapping of the human genome, you can determine if in a birth defects case the causes are hereditary or might be external."
- So, are science qualifications important in the environmental field? Dennis does not think so: "Some of the best lawyers I've worked with have no scientific background at all." He adds: "Lawyers, particularly in this field, need to be really good advocates and good writers. They have got to be flexible and do not have to understand every nuance of science."
- "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," says Robert Wyman, partner and environment don at Latham & Watkins.
- Wyman adds: "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."
- Some lawyers reckon that large commercial practices are downsizing their environmental departments. However, Sive, Paget and Riesel principal Kathy Robb comments: "I wouldn’t say that big firm practices are de-emphasizing their environmental practices; rather they aren’t growing as much as they were 15 years ago." She suggests that this is because clients favor specialist environmental firms with highly experienced practitioners who can deal with "sophisticated environmental issues." Market sources also explain that environmental work tends to attract lower fees than other commercial practice areas, making it less palatable for big, corporate firms.
- What advice does Kathy Robb have for upcoming lawyers? "Do as much reading as possible and study the background on the policy that is driving some of the changes. You can deal better with the nuts and bolts of the day-to-day work if you understand what the theory is behind the regulatory program."
- Climate change is certainly an issue that has formed part of President Barack Obama's political agenda. It has also been championed by non-profit organizations, such as the The Natural Resources Defense Council. Most government action to curb greenhouse gas emissions has been achieved not through congressional but executive powers. The 2010 cap-and-trade bill was famously blocked by Congress.
- In 2013, Obama announced a new national action plan to tackle climate change. It outlined measures to reduce pollution and the impact of climate change. It also focused on America's role in driving international environmental efforts. However, in February 2016, the Supreme Court stayed enforcement of the Clean Power Plan for existing power plants.
- There is ongoing speculation about how the Trump administration will affect the environmental legal market: "In terms of climate change, there is currently a fair amount of civil litigation and I think that is going to continue regardless of the Trump admin," says Patrick Dennis.
- It is fair to say that Trump is unlikely to follow Obama's green footprints on the domestic or international stage. Trump has said that he intends to withdraw from the Paris Climate Change agreement, which was signed and ratified just last year (2016). Nonetheless, the agreement is binding for three years with an additional notice period of one year, which limits his influence—at least in the short-term. It remains to be seen how the Mexico-Canada-US environmental pact made in June 2016 will fare; the countries have agreed to generate 50% of their energy from clean sources by 2050.
- Market sources believe that the Trump administration is likely to relax state and federal environmental regulations, hampering national and global efforts to cut carbon emissions. It is likely that there will be a significant easing of regulation with regard to fracking and coal extraction.
- Moreover, it is expected that the US will see a radical reduction in the number of enforcement cases brought by the EPA. The resultant drop in work might however be balanced by an increase in compliance cases associated with a surge in traditional energy development.
- According to some legal practitioners, the Trump administration is likely to lead to a rise in litigation, chiefly in citizen suits. NGOs will also become more vocal.
- While Superfund cases are becoming less common, compliance cases, typically involving the Clean Air Act and Clean Water Act are becoming more widespread. There has been an increase in brownfield development recently as the economy has picked up, which is particularly beneficial for attorneys working in the transactional sphere of environmental law. This type of work will receive an even greater boost if the new administration slashes taxes.
- The Flint, Michigan toxic tort case continues to make headlines across the world. Between 6,000 and 12,000 children are believed to have been exposed to drinking water with high levels of lead. The crisis led to a federal state of emergency being declared by Obama in 2016. Criminal charges were brought against several officials.
- Patrick Dennis does not anticipate that traditional toxic tort class actions (for example, litigation pertaining to contaminated air or water) will increase under the Trump administration, as “courts are not particularly favorable to class actions for that kind of tort. He notes that they tend to be more open to product liability cases, such as contaminated food and imported retail goods, but each case is different.”
- Environmental work has become increasingly international in scope: "Much of the environmental law that is applicable to those operating any facility manufacturing goods has become regulated not just by US environmental law but by laws from other countries, and harmonizing legal requirements in different jurisdictions is increasingly part of our engagement," says Kathy Robb. Moreover, the compliance issues associated with international climate change treaties at a global and national level will continue to give rise to opportunities within the environmental legal sector.