Managing The Environmental Issues In An Era Of High Scrutiny

Saturday, April 1, 2006 - 01:00

There was a time when environmental law was an emerging specialty, when
corporations and the legal practitioners who served them were terrified by what
appeared to be a bottomless pit of liability. In the absence of much in the way
of case law precedent, to say nothing of statutory law and the regulatory
framework derived from statutes, lawyers were hard pressed to counsel corporate
clients on their exposure to liability in the environmental area. That exposure
was real, however, and there appeared to be numerous environmental activists
anxious to assess liability against those who, unwittingly or otherwise, had
harmed the environment.

Today's landscape is entirely different. At both the federal and state
levels, there are statutes and regulations that together constitute a
comprehensive and complicated legal framework for addressing environmental
issues. Whether the question concerns avoiding liability by dealing with the
environment in a pro active way or mitigating liability by taking steps after
the fact, there is a body of knowledge to bring to bear on it - and a group of
practitioners with the expertise and experience to use that knowledge in
counseling their clients. Their primary function is to make environmental issues
manageable, with the proviso that the client must stay on top of those issues.

In an ideal situation, corporate counsel has controls in place sufficient to
address the environmental issues that might arise. That includes an
environmental management team, whether functioning on an ongoing basis or - if
the resources are not available to permit such a team - one capable of immediate
mobilization when necessary. An experienced environmental manager - someone with
a knowledge of the environmental permits required of the company and of its
compliance with respect to each of them - and experienced environmental counsel,
whether in-house or with an outside firm, are critical. A mechanism for a
periodic environmental audit and assessment by outside counsel is equally
critical. In a world where environmental compliance is increasingly scrutinized,
no corporation can afford to be without expert advice and regular inspections
and evaluations. This is one of those areas where a modest up-front investment
might shield the company from catastrophic losses down the road.

On the transactional side, it is important for corporate counsel to be aware
of the environmental dimension of any transaction in which the company is
engaged. There are few, if any, corporate transactions of any kind that do not
touch on some environmental issue. The navigation of a variety of air, water,
solid and hazardous waste, lead and asbestos issues, workplace health and
safety, the issues that derive from the environmental justice movement - and the
risk components associated with these issues - is part of virtually all merger,
stock or asset purchases and sales, and real estate transactions. Again, access
to experienced environmental counsel is the best way in which to address the
environmental issues that figure in all of these undertakings.