Environmental Law Practice: A Perspective From Inside And Outside

Tuesday, April 1, 2008 - 00:00

Editor: Mr. Rigney, will you please give our readers information about your professional experience?

Rigney:After graduating from the University of Chicago Law School in 1980, I joined the Chicago-based law firm of Jenner & Block. I had a commercial litigation and white collar crime practice. In 1988, I left Jenner to join BP America, where I continued a hands-on commercial litigation practice for two years until I assumed the management of the Environmental Health & Safety Group. I was responsible for the environmental regulatory counseling and litigation for BP America's refining, marketing, and chemicals businesses. In 2004, I moved to the equivalent Assistant General Counsel position in BP's Litigation Group. There, I was responsible for most of the litigation in the U.S. involving the same businesses. That portfolio included antitrust matters, toxic torts, class actions, labor and employment cases, and government investigations, among others.

Shortly after our youngest child graduated from college, I retired from BP and took a several-month sabbatical. My wife and I traveled extensively and I kept busy with my hobbies and enjoyed time with my young adult children. In 2006, I joined the Chicago office of Kelley Drye.

Editor: Why did you choose to go back to the private practice of law and, specifically, Kelley Drye?

Rigney: When I decided to return to the practice of law, I did not originally decide to go back to a firm. I had decided that I wanted to do something different from what I had been doing for almost 18 years at BP. I was looking for a new challenge and a new framework. I ended up looking at a number of options, including both in-house and law firm opportunities, and decided to join Kelley Drye.

I selected Kelley Drye because of my experience working with its attorneys while at BP. I had a high opinion of their professional skills, their culture, their work ethic, and their approach to client service. I knew that the firm shared many of my ideas about the best way to service a client's needs. I also discovered that the firm was flexible in areas that I thought would be important in developing my own clientele. During my 18 years at BP, I had developed some strong views about the attributes required of a lawyer and a law firm to be the best resource for a client. I felt that with my substantive expertise, the experience I gained as a client, and the support and contributions of Kelley Drye, I could provide a better all-around package to my clients.Editor: How would you describe the practice you are developing at Kelley Drye?

Rigney: Building on my experience at both BP and Jenner & Block, I focus my practice on environmental litigation, complex commercial litigation, and white collar investigations and litigation. I bring the most value to large, sophisticated clients like BP and other Fortune 100-type companies because my experience directly addresses the problems they face, and I am adept at marshalling the resources they are willing to engage in response.

Editor: Were you involved in the legal issues surrounding climate change while you were at BP?

Rigney: I have been involved in climate change issues for years, but principally starting out in the regulatory context surrounding greenhouse gas emission reductions and early credit trading efforts. As you know, the social and the scientific issues of climate change have been around for a number of years.

Of more recent vintage are other legal developments concerning climate change. The law of climate change is ubiquitous. It is not an environmental law issue confined to an environmental lawyer's expertise. Rather, it has developed into a multi-disciplinary issue that involves commercial and corporate law, advertising law and litigation, among others. One context in which it appears is the fairly recent and growing phenomenon of using climate change as a hook for bringing public nuisance suits against large corporations. It is not a particularly successful effort to date, but given the dollars at stake, it will probably continue on for some time. Another is the public corporation's SEC disclosure obligations related to the financial impact of climate change issues on the corporation. A third context faces the company that wants to take market advantage of a certain product or policy that is environmentally friendly. The competition for the environmentally conscious consumer and the lack of clarity in the language and science of climate change raise the risks to the advertiser that its message will be challenged as misleading.

Editor: Can you comment on any other important issue or trend on the environmental litigation side of your practice?

Rigney:An interesting issue is in an area where the law is more mature and developed than that relating to climate change. The legal framework relating to the resolution of property contamination and clean-up disputes has been in place for years. The science, however, is advancing. We have better science regarding the nature of certain contaminants and the identification of new contaminants. We have the ability to more accurately detect contaminants and we have better information on human health effects of contaminants. Properties cleaned up years ago under the old set of rules and old science now face the risk of having to be reexamined. It will be interesting to see how government agencies and private parties respond. I hope that we have learned some lessons from the Superfund program and do not repeat the approaches typically used in those disputes.

Editor: What kind of advice would you give an in-house attorney to help him or her prepare for issues like these?

Rigney: An emerging area of law presents special issues for lawyers advising clients. It frequently requires more than just advice on how to comply with a law. One of the first things I would suggest to an in-house counsel is to have someone, preferably in-house, who understands the bigger picture in regard to both the business of the company and the evolution of environmental issues like climate change. That means keeping one's finger on the pulse of the development of the law, both through the courts and through Congress. Second, I would suggest a regular analysis of the potential risks to the company. Those actions could vary widely in scope depending on whether the company is in a business that produces greenhouse gasses or, for example, a consumer products company.

The issues should be analyzed in the context of current activities of the company. Assessments should be made about whether adjustments are needed, and whether the activities of the company can be redirected, whether business objectives can be modified, and whether actions can be undertaken outside the company to reduce the risk. For example, consider climate change. The businesses named in public nuisance lawsuits - energy and automobile companies - are named because of the very nature of their businesses. Although they could change some things about the way they do business, they cannot change what they do and remain viable. The analyses of those situations would look to achieve risk reduction from the outside - from the courts or Congress or the public. The converse situation is the company that creates risk every day with its "green" advertising messages. That risk can be managed very effectively with an ongoing analysis of the company's commercial objectives, government regulations and common law, and the message itself. Balancing the risk of exposure and the business objectives in light of the company's aversion to risk should lead to the proper result.

Editor: What are the respective roles of inside counsel and outside counsel in managing a company's response to those kinds of threats?

Rigney: In my view, outside counsel exists to provide the skills and experience that do not exist in-house. The inside/outside balance depends, therefore, on the size and degree of sophistication of the in-house department. In any event, the inside counsel typically is much more familiar with the business and business objectives of the client, the latitude the business has to modify its business activities, and its risk attitude. It is important, therefore, that the in-house lawyer contribute on those aspects of the inquiry. The outside lawyer may have a broader perspective because he or she probably is dealing with many more clients of different sizes and in different industries. With those different experiences, the outside counsel may be able to give a stronger assessment and appraisal of the legal issues. The optimal approach is a joint effort in which the outside counsel and the in-house counsel each contribute but also challenge the other's ideas and analyses to reach the best result for the client.

Editor: What do you think the future holds?

Rigney: The whole body of environmental law is young compared to many other bodies of law. The climate change issues we have been discussing are in their infancy. We can expect a lot of interest and activity on the governmental side, both within the United States and globally. We can expect a lot of activity in the courts, including the Supreme Court. Social action and public opinion are helping to shape the debate. Science itself will obviously also be key both with respect to the continuing study of climate change and efforts directed at alternative forms of energy.

As outside lawyers, we need to keep an eye on the courts and Congress. We need to keep our approach flexible so that we do not advise our clients to do something that in the end they either did not or should not have done. While the law is developing, law firms are identifying their clients' needs and are reacting with the resources to deal with them. Multi-disciplinary practice groups or approaches will be designed because interdisciplinary and overlapping expertise is needed to deal with the issues. The debate is sure to continue for quite some time with enough uncertainty to continue to challenge all of us.

Please email the interviewee at mrigney@kelleydrye.com with questions about this interview.