A Look into the Life of an Environmental Lawyer

When I was asked to write a piece on “a look into the life of an environmental lawyer,” I wondered if readers would be more interested in the life of environmental law itself or in my own career and practice. I graduated from law school in 1975, when environmental law was only developing. In a way, it’s hard to separate the trajectory of my own career from the evolution of the field. So, let’s look at the two different paths, where they led us, and where we are today.

My Life in Environmental Law

In my first job after law school I was a miserable law firm associate practicing in an area that didn’t interest me. In my second job I was a miserable law firm associate practicing in an area that did interest me. So, when an opportunity arose to join a client corporation’s law department and become an environmental specialist, I grabbed it.

Environmental law was still new in the late 1970s, and not many were practicing it. Governmental agencies were also new and still staffing up. Very few law firms had yet explored the field. Corporations saw that complying with these new laws and responsibilities would require substantial resources and energies, and many were building in-house environmental law departments. I was fortunate to find a company that not only saw the need to handle environmental matters but also recognized the responsibility to face up to its environmental responsibilities and handle those matters appropriately. This was our current concept of sustainability in embryonic form.

It was a very exciting time working in an environmentally conscious corporate law department in the early 1980s. New laws and regulations were coming out constantly, and we had to learn them on the fly, explain them to our corporate clients, and then help those clients implement them. With management support, it was a very rewarding practice. Many of the issues we dealt with were of first impression, and I was able to get much closer to clients and to their facilities than one ever could in private practice.

I went on to another corporation where I was the sole environmental lawyer. As I was trying to develop an environmental consciousness similar to my previous company, my employer became the target of a hostile takeover, and my practice became even more varied and exciting. This was the time when environmental issues suddenly became central to all transactions, and because my company was basically doing nothing but transactions—first in the takeover fight and then in the restructuring that followed—I was right in the center of it all.

At this point, I, like many other corporate environmental lawyers, joined a law firm. Some of us were more successful than others in that environment. Ultimately, environmental practice became very difficult to sustain in a big New York City law firm, as clients were increasingly unable to pay the rates the big firms needed to charge.

I have spent the last two decades largely with smaller firms and now as a sole practitioner. It has been far from easy, and not necessarily remunerative, but the work has been most rewarding. There is a great deal that smaller firms and solos can do in this field, recognizing that it is basically a collaborative practice, and one needs to build strategic alliances with lawyers in other specialties, with environmental consulting firms, and with environmental specialists in other areas. Transactions still require environmental expertise, and those same firms that were not able to retain their own environmental lawyers at their going rates still have to fill that need, now from the outside. Environmental litigation has become its own specialty. Local expertise in this age of increasing localization takes on great importance. Particular expertise in areas such as site cleanup, sustainability, and public disclosure are now sought after as prized commodities. There has been, and will continue to be, an opportunity for those who can provide first-class environmental advice at an affordable price. There are plenty of clients who have environmental issues but do not want to pay $1,000 an hour to deal with them. In short, find your niche and deliver it to those who need it.

The Life of Environmental Law

Awareness of the environment, and the need to find legal means to protect it, gained momentum in the 1960s and became a bona fide movement with the first celebration of Earth Day on April 22, 1970. Five years earlier, the U.S. Court of Appeals for the Second Circuit acknowledged the right of “those who by their activities and conduct have exhibited a special interest” in the “aesthetic, conservational, and recreational aspects” of a proposed power plant on the shores of the Hudson River to sue to contest the project. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965). Thus, the courts were opened to environmental claimants.

Congress soon after enacted a series of statutes intended to protect the different media of the environment. The National Environmental Policy Act (42 U.S.C. § 4321) required comprehensive review of the environmental impacts of actions requiring federal approval. The Clean Air Act (42 U.S.C. § 7401 (1970)) attempted to improve the quality of air and regulate emissions into it. The Federal Water Pollution Control Act (33 U.S.C. § 1251 (1972)), better known as the Clean Water Act, attempted to regulate discharges into our waters and make them fishable and swimmable. The Resource Conservation and Recovery Act (42 U.S.C. § 6901 (1976)) attempted to regulate the treatment, storage, and disposal of solid and hazardous wastes. And the Comprehensive Environmental Recovery, Compensation, and Liability Act (CERCLA) (42 U.S.C. § 9601 (1980)) attempted to clean up land contaminated by past disposal of hazardous substances. The Environmental Protection Agency (EPA), established by President Richard Nixon’s executive order in 1970, was empowered to adopt regulations implementing these statutes.

In the ensuing five decades, these statutes have been the principal means of addressing environmental problems, and the principal focus of my own practice. Yet, I have observed three distinct trends that are changing the practice and that will shape environmental law for the next generation.

Trend 1: Complexity. As each of the media statutes became interpreted by courts and by EPA regulations (which now would take up an entire shelf of the Code of Federal Regulations—if any of us still had books on shelves), practicing in each area became significantly more complex. Where once an environmental practitioner could claim expertise in all media statutes, that breadth has become increasingly difficult. One must become a specialist in air, water, solid waste, etc. In addition, the shift to state and local primacy described in the next trend makes it much more difficult to practice the same subspecialty in multiple jurisdictions.

Trend 2: Localization. Each of the federal statutes mentioned above contemplated that the individual states would eventually assume primacy in enforcement. These laws generally provided that states could establish their own standards provided they were at least as stringent as federal standards. In addition, various states have adopted individual statutes moving into new areas, each establishing further practice subspecialties. California’s Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986, codified as Chapter 6.6 of the California Health and Safety Code, § 25249.14) requiring warnings of chemical health hazards created new concerns in both regulatory and litigation practice. New Jersey’s Environmental Cleanup Responsibility Act (N.J. Stat. Ann. §§ 13:1K-6 et seq.(1983, revised 1993, 1997, 2007, 2009) (now the Industrial Site Recovery Act), imitated by a handful of states, requires chemical contamination to be identified and remediated as a condition of the transfer of property and creates the need for comprehensive environmental review of any corporate or real estate transaction. Creation of licensed state environmental professionals in Massachusetts and several other states moved the locus of enforcement again, from the state agency to the independent private practitioner. And the “little NEPAs” in several states, such as New York’s Environmental Quality Review Act (Article 8 of New York’s Environmental Conservation Law, §§ 8-0101 et seq.), broaden the applicability, breadth, and power of the environmental impact review process far beyond the federal statute.

Even more importantly, a national trend is moving the impetus for environmental control further away from Washington and more into the hands of state and local government. Since Congress amended the Clean Air Act in 1990 (104 Stat., 2399, Pub.L. 101-549), there has been no new federal environmental legislation. In 1994 Republicans took control of Congress shortly after an effort to reauthorize the Superfund under CERCLA failed. Since then, the political pendulum has kept on swinging, but never in the direction of new legislation. When Republicans have power, they place new limits on federal power. When Democrats regain power, they try to restore those powers but are never able to move things past where they were before the previous pendulum swing. As a result, we find ourselves in stasis, where states have much power and discretion. The result is that environmental lawyers find themselves dealing more frequently with state and local authorities, litigating in state courts, and being valued more for our knowledge of local requirements, authorities, and customs.

Trend 3: Climate change and sustainability. The traditional pollution and media statutes of the 1970s are increasingly seen as incapable of dealing with current concerns for sustainability of human life in the face of the global climate change crisis. The Clean Air Act has been pushed to its limit in attempts to regulate carbon emissions. Indeed, there is a great deal of doubt as to whether the authority confirmed in Massachusetts v. EPA, 549 U.S. 497 (2007) will survive the scrutiny of an increasingly conservative federal bench. The established emission control strategy is, in short, insufficient to deal with the global issue. The futile effort of former President Donald Trump’s “I want the cleanest air and water” mantra to address the issue underlines the point. Carbon emissions pose an existential threat to the Earth, but they are not problematic from the simple perspective of cleanliness. Debating the source of climate change is not the issue—change is here, it’s affecting all of us severely, it needs to be dealt with, and we need to adapt. As outlined above, much of the burden of that adaptation is going to fall on state and local governments and the practitioners who deal with them.

As we become increasingly concerned with “sustainability,” that very concept takes on a new and broader meaning. People are concerned, and the law increasingly should be, with more than scientific and environmental issues. Sustainability requires consideration and protection of social, political, and quality-of-life values. Corporations and governmental entities find themselves increasingly required to be accountable to the public for their overall stewardship, not merely their compliance with legal requirements. Lawyers are increasingly asked to aid in that effort.

Environmental Issues for Coming Years

So how does someone find a niche in environmental law today? Look to what is happening and what is likely to happen. We can probably all agree that climate change and sustainability will be the central environmental issues of our time. But those issues are ultimately not going to be dealt with at the federal level or through negotiation of global agreements in Kyoto, Paris, or Glasgow. All will ultimately come down to the local level. Look at the concrete effects your own area is experiencing and will have to deal with in coming years. Regardless of its source, our weather has become more extreme. We are all experiencing floods, tornadoes, wildfires, rising sea levels, droughts, and other catastrophes of varying sizes and descriptions that will have to be dealt with. On the energy side, we will have to deal with more frequent power outages and providing affordable power while shifting from fossil fuels to renewable sources. Increasingly, the burden of dealing with these issues will fall on individual communities and their governments. Lawyers will be critical to providing and implementing solutions to aid local governments in dealing with new challenges and regulations and in aiding individual citizens who will inevitably be lost in the shuffle. The challenges will be new, and creativity and flexibility will be essential in dealing with them. And, by the way, the 50-year-old goal of making all our waters fishable and swimmable still has not been achieved.

New “emerging” contaminants are being recognized faster than regulations can be adopted to deal with them, engendering a new set of environmental conflicts. Contamination with chemicals in public water supplies in such places as Hoosick Falls, New York, and contamination through aged infrastructure, such as in Flint, Michigan, are scenarios that are likely to be repeated. The concern here isn’t so much liability as ensuring public safety. Solutions need to be found, and lawyers must be part of those solutions.

As corporations and municipalities face up to their goals of sustainability, work will increase. Corporations and governments are getting sustainability officers. The question is whether their work will be mere lip service or if quality-of-life issues will actually be addressed. Lawyers will be involved, either in addressing those issues or in forcing them to be addressed.

Beyond the devolution of environmental and energy law to state governments, there is a further devolution to local governments, which are asked increasingly to address environmental issues. Implementation at the local level will have the most effect on people and their real-life problems. As these governments deal with issues such as adaptation, flood control, power choice, and sustainable planning, they will need lawyers to implement those solutions, and the communities will need lawyers to ensure the implementation is proper. Disasters that have happened recently are likely to happen again. As goes the old adage, insanity can be defined as the refusal to change a deficient practice, hoping for a different result. These concerns will apply even to smaller communities—small towns, condominiums, and co-ops. Storms and floods will become more severe and must be planned for. The recent and tragic building collapse in Miami, Florida, will force communities to be more mindful of maintenance and reserve funding. Once again, lawyers will have to be the ones to do it properly or force the ones in power to do it properly.

The natural world is changing. The law’s response to that change is also in flux. One lawyer may only begin to affect those changes—but just one lawyer can do a great deal to help his or her community and clients adapt to those changes and protect themselves.