Friday, June 3, 2011

Environmental Lawyers as Problem Solvers

Charles Tisdale, a highly regarded environmental lawyer, mediator and arbitrator of Superfund cost allocation disputes has posted an insightful blog on the American College of Environmental Lawyers website about why environmental lawyers seem not to have split into litigation factions the way other fields of practice have (i.e., plaintiff personal injury attorneys don’t often represent defendants in PI cases, labor lawyers are generally either union or management and so on).

He suggests it is because we all breathe the same air. We all live in the same boat and we all have a stake in whether, in the end, the boat floats or not. As Chet writes:

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.

This, and perhaps other factors (see below), can lead to environmental lawyers focusing much more on negotiating solutions with the other side rather than on litigation as the first option. This is not to say, however, that environmental disputes are never litigated.

Environmental cases often involve complex technical issues, multiple parties and voluminous documents. This leads to very high litigation costs. And often the results of litigation are unsatisfying to many of the litigants; especially in Superfund cost allocation disputes where courts have a great deal of discretion. Often in such litigation no one wins.

These factors lead lawyers and their clients to negotiate. And that means that environmental lawyers especially must understand the other parties’ cases to reach a solution that works.

Successful environmental lawyers must establish reputations for honesty. It is difficult to successfully negotiate if you have been seen as hiding data or otherwise dissembling. This does not mean that environmental lawyers are better people or lawyers than other practitioners, just that, to succeed, when lawyers are forced to negotiate with adversaries they must be thoughtful about how to negotiate and must understand the consequences of their behavior – in the particular case and over time.

Another reason environmental lawyers tend to be problem solvers is they often must explain complex statutes to clients; develop productive relationships with regulators who are not going to disappear; and create successful solutions that avoid the need for litigation.

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