“Environmental” Lawyers

In Counsel Connect online during 1998, publisher Steven Brill raised the question, “Are environmental lawyers still relevant?” The answer was then and still is, “Yes!”

While continued relevance may require attorneys to develop a different set of skills than before, all is not lost, bleak and hopeless, largely because Companies have also become sophisticated in the ways of using the environmental regulatory arena to their competitive advantage and once again, market-savvy legal expertise is needed.

Attorneys and more importantly their clients must recognize that the legal profession is continuing to stratify while at the same time evolving a web of niches (both good old fashioned ecological images) that point to the deep division between litigation and the rest of the legal practice.

The Future of Environmental Lawyers

The environmental barrister will always be in great demand. There are only a very few good ones and there is more than enough litigation now pending or soon to occur to keep them fully employed.

Environmental scriveners may have a more difficult time as the Big “8– 7– 6– 5– now 4” Accounting firms expand into the traditional transactional practice of corporate law firms, while engineers and science consultants continue to interpret environmental regulations and feel free to manage environmental administrative proceedings.

The eventual demise of the Environmental Law Departments at full service law firms may not be an altogether bad thing for their corporate clients and society.

As soon as business firms and industrial corporations begin to realize that their own in-house expertise—after all, they know their own business better than any full service law firm can—augmented where necessary by specially qualified experts and consultants directed by and managed by the attorney/barrister who will actually represent the client in the Courtroom or before an Administrative Law Judge are more effective than retaining a full service law firm with an Environmental Law Department or even an Environmental Law Boutique firm, the new age for environmental lawyers will arrive.

“Lead, Follow, or Get out of the way!”

The public trust doctrine

Many of those whose Environmental Law “credentials” begin well after NEPA was adopted are now “endangered” practitioners because they do not fully understand or frankly ignore The Public Trust Doctrine which is the essence of the environmental ethic and the foundation of environmental common law.

The Trust Doctrine embodies the fundamental principles of equity jurisprudence as old as the Talmud and the Roman Law yet is flexible enough to regulate the use of real property and the exploitation of natural resources today and tomorrow

• so use your own property as not to injure that of another
• suffer no wrong to be without a remedy
• recognize that there are some unique national natural resource treasures whose value to society today and civilization in generations yet unborn makes them social property held in trust by the nominal title holder for the benefit, use and enjoyment of generations yet to come, subject only to wise use by the present “owner” de jure—at law; but trustee de facto—in fact.

It is nice to see that the public trust doctrine Yannacone first presented to the Courts during the early 1960s; devoted the second chapter of Environmental Rights & Remedies to in 1972; stopped the strip-mining of the northern Great Plains with in 1978; saved the Jarrah Forest in Western Australia in 1979; and prevented the Long Island Pine Barrens groundwater recharge area from becoming the Metropolitan Regional Incinerator Ashfill in 1987 was finally recognized in 1998 as “some sort of growing movement in the environmental law area.”

The Florissant Fossil Beds National Monument exists because during the summer of 1969 (before NEPA) the public trust doctrine was invoked in the US District Court for Colorado and endorsed by the Court of Appeals for the Tenth Circuit.

Before Florissant, the beaches on Long Island, some of the most valuable real estate on the East Coast of the United States, were opened to the people in 1960 by bringing the public trust doctrine to the New York State Courts and reconnecting those courts to their English common law heritage.

Public access to beaches along the Pacific Ocean is possible because the Public Trust Doctrine was asserted during that same period.

With vigorous intelligent advocacy on the part of attorneys who understand the law, its origins, and its meaning to society, the sciences, and the political process, the public trust doctrine can bring us to the Millennium where the “farmer and the cowboy can be friends” as lyricist Oscar Hammerstein once wished.