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WHAT DOES THE YOUNGER BUSINESS LAWYER NEED TO KNOW ABOUT ENVIRONMENTAL LAW? PROF. JIM O’REILLY UNIV. CINCINNATI COLLEGE OF LAW.

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Presentation on theme: "WHAT DOES THE YOUNGER BUSINESS LAWYER NEED TO KNOW ABOUT ENVIRONMENTAL LAW? PROF. JIM O’REILLY UNIV. CINCINNATI COLLEGE OF LAW."— Presentation transcript:

1 WHAT DOES THE YOUNGER BUSINESS LAWYER NEED TO KNOW ABOUT ENVIRONMENTAL LAW? PROF. JIM O’REILLY UNIV. CINCINNATI COLLEGE OF LAW

2 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.

3 DON’T BE DISILLUSIONED WHEN WE 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

4 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

5 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

6 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

7 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

8 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

9 “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

10 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

11 Professor Bob Greene Cumberland School of Law Samford University

12 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.

13 B.Five Major Themes 1.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.

14 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.

15 D.Three Types of Environmental Statutes 1.Waste management and pollution control statutes 2.Health and safety laws 3.Resource management laws

16 E.Six Regulatory Targets 1.Activities a.Products b.Pollutants c.Land uses 2.Entities a.Industrial facilities b.Government agencies c.Individuals

17 F.Three Bases for Controls 1.Health (or environment) 2.Technology (or feasibility) 3.Balancing

18 G.Thirteen Types of Regulations (or standards ) 1.Design standards 2.Performance standards 3.Ambient standards 4.Emission limits 5.Use instructions (including prohibitions) 6.Marketable allowances 7.Taxes or emissions charges 8.Subsidies 9.Deposit-refund schemes 10.Liability rules and insurance requirements 11.Planning or analysis requirements 12.Information disclosure (labeling) requirements 13.Financial or Regulatory Incentives

19 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.

20 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).


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