April 22 marked the 44th Earth Day celebration. Since that first day honoring our environment, many important legislative acts have been passed, including the Clean Air Act, Clean Water Act, and the Endangered Species Act. While these giant steps forward for the environment are significant achievements worth celebrating, the continuing regulations and updates are certainly something every corporate counsel must contend with. Corporate Counsel Connect spoke with environmental lawyer Elizabeth (Beth) Koniers Brown about what every in-house counsel should be aware of each day of the year, not just Earth Day.
As the former in-house counsel for the non-profit organization Delaware Riverkeeper Network, Beth is well aware of the fact that in-house counsel are often working a balancing act with their time as it is. However, this is an issue that cannot be ignored as environmental legal issues are prevalent for organizations of every size and shape. So what's your best course of action?
"Staying compliant is all about staying up to date," states Beth. What's more, says Beth, "regulations and precedent are constantly being updated, frequently with more stringent compliance standards. What's legal this year might be illegal in the next." She recommends taking the time to learn the regulatory ins and outs of the highest priorities – the state where most operations are or where manufacturing is located – and the federal regulatory scheme, and partnering with outside counsel to provide remaining know-how.
Given that regulations are often changing, Beth states that it is critical to know both your company and your regulator(s). She provides the following list of questions you should ask often:
Even more than understanding your company and the regulations, Beth highly recommends becoming involved. "One tip from the non-profit world is to be active in shaping the regulatory landscape, commenting on proposed regulations and challenging final rules where advisable."
This holds true for regulated companies of all sizes. "Your company may not be on the scale to shape the regulatory landscape, but that's no excuse for not knowing what that landscape looks like. For smaller companies, in-house counsel can network with peers at other companies of the same scale and industry to leverage resources," Beth explains. "Join a local Inn of Court, trade group or the like and put yourself out there."
"EPA and Department of Justice enforcement looms large for many in-house counsel," says Beth. "I don't think any company can risk making the assumption that they are flying under the radar of an agency with enforcement authority."
To stay up-to-date with the EPA, Beth recommends paying attention to the agency's announcements on both "multi-year national enforcement initiatives" and the agency's strategic plan. "The agency does communicate knowable and useful information to the regulated community," says Beth. But she notes the importance of context such as budget constraints and other real-world issues. "The agency's just-announced strategic plan reveals a major course correction to focus on enforcing 'high-impact' cases and lower enforcement volume," she says. "The EPA says it made this decision based on budgetary and staffing constraints," Beth notes.
Certainly the concern for the environment will not wane, and between both the scientific and legal issues, this area of law will continue to become more complicated. Shares Beth, "It's almost hard to consider energy and environmental law one field anymore. With the convergence of energy and environmental issues, the mainstreaming of renewable energy projects and associated issues, there's no one 'typical' case."
"In some cases, old is new again – trespass and nuisance are being asserted where they can overcome the limitations of federal environmental statutes. I think we will see further shake-out in the use of common law theories of environmental harm in the next couple of years, maybe even in the current Supreme Court term," states Beth.
While the EPA has officially prioritized its enforcement efforts in more traditional areas, such as sewage and stormwater prevention, the future holds even more concerns with climate change. Explains Beth, "Novel theories will continue to develop in the climate change arena. On the business side, we're hearing a lot more about carbon risk and investors demanding more disclosure. More battles will certainly be waged in this sector."
The legal profession is definitely not one without the opportunity to help the environment on its own. "Several years ago, the American Bar Association and EPA teamed up to create the 'Law Firm Climate Challenge,'" says Beth. They provided several actionable items your department and your entire company can do to "be green" including:
Beth's passion for environmental and energy law is obvious. She melded a biology undergraduate degree into a focus on environment and policy during law school. But even if you don't have a natural draw to environmental law, there are many opportunities for you to stay up to date. "What I love about Practitioner Insights on WestlawNext is that it provides a single access point for comprehensive information and expert analysis in energy and environmental law. You can get your daily dose via email alert or simply by starting your legal research on the page," says Beth.
Environmental and energy law is an area your organization cannot afford to ignore, as you never know when it will impact your buildings, your network, your community, or your employees. Beth has seen many changes and challenges to the regulatory and litigation sides in the decade she has been in environmental law, and without a doubt, there will be many more. "When I entered law school, environmental and energy law was thought to be at best a settled and more likely a dying field. Today, it's dynamic, fast-paced, and demands the attention of the legal department."
In Your Words
What made you leave private practice and take the leap to be in house?
I came out of law school with a continued interest in environmental litigation, having had a wonderful internship experience at EPA's Office of Enforcement and Compliance Assistance, among others. After a few years at a great firm in New Jersey, I decided to explore the nonprofit side of environmental law. I was also starting a family and had the perception that the in-house setting would provide more work-life balance.
As part of Delaware Riverkeeper Network, what was your day-to-day workflow?
As the only lawyer on staff at the time, I was in the driver's seat more than most of my peers in private practice. One unique aspect of the job was responsibility for teaching a clinical externship through Temple University's Beasley School of Law. I have great memories of working with the Temple law students.
What tools did you wish you had when working as an in-house counsel?
If I'd had a genie in a bottle, I would have wished for: 1) an in-house colleague to bounce ideas off of, 2) a larger budget to pursue campaigns at the level of the opposing party, and 3) more wishes, of course!