A Law Firm With The Inside View On Environmental Matters

Friday, April 1, 2005 - 01:00
E. Donald Elliot

Editor: Perhaps you could each describe briefly the periods of time in which you served as General Counsel and under which Administrator.

Elliott: I was General Counsel of EPA from 1989 to 1991 under William Reilly in the first Bush Administration.

Fabricant: I was General Counsel of EPA from 2001 to 2003 during the current Bush Administration, serving Governor Christine Todd Whitman when she was Administrator.

Editor: How did each of you come to select environmental law as an area of concentration?

Elliott: I was a law clerk on the DC Circuit to the judge who was the leading expert of his time on the relationship between law and science, David Bazelon.This was a time when the first environmental cases were beginning to make their way through the courts.The first case I worked on as a law clerk was Ethyl v. EPA, the lead-in-gasoline case.I have long had an interest in environmental law as an application of science to the legal process.This has been my primary interest, both in my career as a practicing lawyer and in my teaching.

Fabricant: I began my career in the environmental science field with a biology undergraduate degree.The first job I had in the field involved working for a consulting firm, doing biological sampling on a Superfund site in southern New Jersey.With this technical background I decided to take the next step - a legal career where I could work on both the technical scientific issues and legal issues in the environmental field.

Editor: Don, please give our readers a brief overview of your career in the environmental law area.

Elliott: After graduation from Yale Law School, I clerked for two years, first in the U.S. District Court in DC for Judge Gerhard Gesell and then in the DC Circuit Court of Appeals for Judge David Bazelon.I practiced for seven years with a private law firm in DC doing litigation and environmental law; then I went to Yale Law School in 1981 as a member of the faculty where I have continued to teach, now as an adjunct professor.I spent 5 years in-house at GE managing toxic tort and environmental litigation, and then went to EPA as General Counsel from 1989 to 1991.After leaving EPA, I have divided my time between practicing full time and teaching on the side.I am an adjunct professor at both Yale Law School and Georgetown University Law Center.I chair the environmental group at Willkie, having been recruited from another national law firm to Willkie about two years ago.One of the key people whom I recruited to join me at Willkie is Bob Fabricant, for whom I had great admiration while he was at EPA.We are the only law firm that has two former EPA General Counsels, one in our New York office and one in Washington.

Editor: Bob, please tell us about your years in government in New Jersey and your current practice area.

Fabricant:I began my legal career as a Deputy Attorney General for the State of New Jersey, working principally in environmental litigation and counseling for the various state agencies doing environmental work.When Governor Whitman was elected, I had the opportunity to move to her Chief Counsel's Office to handle environmental legal and policy issues for the Governor's Office.I served as environment counsel to Governor Whitman during her first term and, eventually, I became Chief Counsel to the Governor, a position with responsibilities beyond environmental issues including budgeting and other issues across state government.I was privileged to accompany Governor Whitman to the EPA when she became Administrator and, eventually, I was appointed General Counsel in 2001.For the last year, I have been with Willkie developing a private law practice.I am happy to apply my many years of government service to the private practice of law.

Editor: I assume you were happy about the passage of the Highlands Act this past year.

Fabricant: It is indeed a landmark piece of legislation in New Jersey, and it builds upon the very strong environmental laws and the regional planning laws in the state, such as the Pinelands Protection Act and the Hackensack Meadowlands Development Act.

Editor: Don, one seminal case that immediately brought you and the firm onto the pages of the New York Times is the recent Clean Air Act "new source review" case against Ohio Edison in which you represented the utility.EPA said it was a "landmark" case, and the New York Times calls the agreement "one of the most significant settlements ever for cleaning the air É" On the other hand, FirstEnergy, the parent company, said the settlement was "consistent with É the company's long-term financial planning" and that "our plans to install additional environmental controls will help us meet Clean Air Act regulations recently announced by the U.S. EPA."Perhaps, you could provide our readers with some background information.

Elliott:Our role was as settlement and appeal counsel rather than trying the case.We are happy that a settlement has been reached with the federal government, NY, NJ and CT.It was a good deal both for the environment and for the company.The proposed 80-page consent decree will be lodged with the U.S. District Court in Columbus, Ohio for a thirty-day public comment period.So, I can't say much more about the specifics.

One of the areas that Bob and I excel in is using our understanding of the goals and objectives of government to negotiate with government agencies on behalf of companies.We can achieve very good results because we understand how the government negotiators will look at a matter, which is often not the same way as a company looks at it.

Editor: So your background in government has added to your practice expertise?

Elliott: Yes.In a number of negotiations that we have been involved in, we have been able to identify opportunities where something may be of much greater value to the company than it is to the government and vice versa.In the Ohio Edison case, the settlement on its face illustrates a win/win situation where by including four other plants, the government is getting a greater tonnage reduction of pollution (by 212,000 tons per year), and the company can achieve the reductions in an economically viable way.

Editor: Can you comment on some of the cases where you have worked together?

Fabricant: I believe that sitting on the government's side in the past and being able to understand their perspective on negotiation and settlement is an important advantage to our clients.You can better approach an issue and look for opportunities to bridge a seemingly large gap between your client and the government when you have this experience.

A recent matter that we worked on together was for a client who had leased property to EPA.Ironically, the issue raised was the Agency's contamination of that property and what would be appropriate relief under the terms of the lease.The reason we were able to reach a favorable settlement was because we understood the inner workings of the Agency and how to approach both contractual and policy matters that are raised by cases like this.Also, an understanding of the budgetary issues within the Agency facilitated settlement in the matter.

Elliott: Another element was being able to access the right people at a high level in the Agency where the potential implications could be immediately appreciated, rather than having it processed in a routine bureaucratic way.We also often help our clients refine their goals and objectives so that they approach the government with realistic settlement objectives that are of a nature that the government is capable of accepting.

Editor: So you use a different formula when representing a client vis-à-vis the government as opposed to a private adversary?

Elliott: Absolutely.You are looking for win/win situations where something means a lot more to one side than it does to the other.Those are the opportunities to create value.For example, we have sometimes been able to trade a $10 million issue on one side of the table for a $30 million issue on the other side of the table.

Editor: Could you give us some examples of where you have represented industrial clients?

Elliott: I have represented a number of major companies in environmental enforcement litigation and settlements over the years, including some that I represented before coming to Willkie.They include Toyota Motor Company, Bristol-Myers Squibb, Ashland Oil, and many others.At Willkie, we currently have ongoing relationships with a number of large industrial concerns.For example, we regularly represent Federal Mogul, a large auto parts manufacturer, in both domestic and global environmental matters.We also do environmental work for Phelps Dodge, Wal-Mart, Sequa, the Sherwin-Williams Company, and FirstEnergy, among others.

Editor: Given Sarbanes-Oxley's reporting requirements, do you have clients who call upon you to assist in their disclosure matters to the SEC?

Elliott:That is something that we do frequently.Another lawyer in our group, Carolyn Conkling, is our Sarbanes-Oxley and due diligence expert.A great deal of our work is in the area of the environmental aspects of mergers and acquisitions and SEC disclosure.We frequently get involved in SEC disclosure obligations in regard to silica, asbestos and lead matters as well as environmental cases.

Editor: What among the federal environmental regulations would you like to see strengthened or abolished?

Elliott: Bob and I both believe that the long-term obligations of U.S. companies to control CO2and other greenhouse gas emissions should be clarified.An important issue for clients in the regulatory arena is to have greater certainty to enable long-term planning.A great many people in U.S. industry believe that at some point in the future there will be obligations to control CO2 .One of the reasons to clarify our national policy and to establish benchmarks on a long-term time horizon is to create incentives that will facilitate the commercial deployment of the new technologies that government research money has helped to develop over the last few years.Additional scientific information as well as a debate at the congressional level would be important first steps.

Editor: Does Willkie's Environmental Law Department have the same high standing abroad that it enjoys in the U.S.?

Elliott: We have a strong and growing presence in Europe, where the firm has offices staffed by European lawyers in Paris, Brussels, Frankfurt, London, Rome and Milan that now comprise almost 25% of the firm.One of the reasons that I came to Willkie is that increasingly my clients asked me about environmental regulations not just in the U.S. but around the world.With the globalization of the legal practice, I wanted to be with a firm that was able to render environmental advice globally, and particularly in Europe.Being able to advise corporate and merger and acquisition clients about the environmental implications of complex transactions throughout the EU and U.S. is where Willkie really excels.

Please email the interviewees at delliott@willkie.com or rfabricant@willkie.com with questions about this interview.