Posted on May 5, 2011 by Charles Tisdale
People often ask me why I became an environmental lawyer in 1973 and why I am still practicing environmental law in 2011. I ask other environmental lawyers the same questions. Their answers provide useful information to resolve conflicts in our political and economic systems.
Environmental lawyers representing EPA, state agencies, NGOs and corporations have found ways to resolve environmental problems without the type of litigation and adversarial relationships that are present in other fields of law, such as labor law or personal injury. Environmental lawyers representing all sides regularly attend seminars together and are friends. Such camaraderie is not found in the U.S. Congress and in many state legislatures. How did this collegial atmosphere develop? What can we learn from it?
My discussions with other environmental lawyers resulted in the following conclusion. Environmental lawyers have an interest in the preservation of the planet. We may argue over how clean is clean and what is the best available technology for control of pollution. However, our shared belief that earth must be preserved creates a basis for reasoned debate, which results in reduction of pollution and a successful resolution of conflict.
Environmental lawyers meet and negotiate. They don’t hide data or take positions that avoid addressing the real issues in conflict. Environmental lawyers seek a win/win, knowing that the consequences of not achieving a solution may be a loss for both sides.
Environmental lawyers are also translators and problem solvers for clients. We are called upon to explain complex laws in lay terms and to seek solutions rather than stake out positions that lead to protracted litigation. We may fight vigorously over the provisions of a Consent Decree, but it is still a “consent” document in which both sides must give and take.
Environmental lawyers form groups of potentially responsible parties (“PRPs”) to address contamination caused by insolvent operators. In forming a PRP group, we are creating a vehicle for consensus despite individual differences among the parties.
Why is this status relevant for the current challenges America faces? I suggest environmental lawyers have found a way to get over partisanship and posturing. We have found a way to get beyond emotion to focus on what is relevant and how to solve a common problem. We recognized the concept of sustainability long before it became a trite phrase. If businesses could not comply with the environmental laws and still make money, the economy would fail. Saving the earth appeals to consumers who pay more for products that are made from recycled material or from sustainable practices. Coalitions of environmental interest groups, government and business can accomplish far more working together than fighting in courts or legislatures.
What actions would be appropriate for our current adversarial process? One would be meetings in which everyone has an opportunity to express their views and everyone is treated the same. Rather than having two sides, a group with all stakeholders would be a better way to solve many of our political and economic problems. Coming into a meeting with the idea that you have to negotiate a consent agreement with give and take would be a useful solution for many political and economic leaders. Seeking a win/win is a much better alternative than a filibuster. Focusing on solving the problem might avoid some of the needless expenditure of money to vilify the other side. Going to seminars together and drinking a beer at a reception would be a useful exercise for politicians from different parties. Having to produce all of the information to a governmental regulatory agency might prevent a trader from defrauding an investor in some “black box” investment.