14 ELR 10332 | Environmental Law Reporter | copyright © 1984 | All rights reserved


EPA's Regional Counsels

Sheldon M. Novick [14 ELR 10332]

I have been EPA's regional counsel in Philadelphia for six years, and as that assignment is now ending it seems suitable for me to say a few words about a regional counsel's work.

Lawyers and managers get different training, and have different habits of mind. EPA attracts some of the best of both professions, and the occasional conflicts between them are correspondingly dramatic. The regional counsel, advisor to management and supervisor of the legal staff, is the point of contact between the two camps and their conflict is often the setting of his work. Once you see the battlefield, you know what the army surgeon does.

The young, professional managers at EPA like to measure results; they adjust the EPA's work effort to keep results flowing. They don't build the machinery itself — EPA was assembled from surplus parts of other agencies — but they keep their grip on a valve handle and hope that when they turn it the flow of permits and enforcement cases will respond.

The young, idealistic lawyers who work at EPA think in terms of conflicts and abstract principles. They think about what is right and who should win.

Managers and lawyers have correspondingly different ideas about the law. To EPA's managers, law is an instrument to accomplish a result. They often see little distinction between internal rules which they make themselves to regulate work toward results, and the more general rules that Congress and the courts make. When the rules are not well designed to achieve results, they become impatient.

To many of EPA's lawyers, however, particularly enforcement lawyers, federal laws are statements of principle; lawyers test their judgments against general rules and the arguments of adversaries, before they look at immediate results. Of course, lawyers serve their clients, but in EPA, especially in enforcement work, lawyers sometimes have independent duties to fulfill.

Both Carter's and Reagan's managers thought that nothing should be done about acid rain without a better understanding of cause and effect. Lawyers in both administrations were more willing to take action, if only to resolve the dispute. Managers think of ground-water protection as a set of institutions; lawyers think groundwater protection means law enforcement. Managers think about cost-effective pollution control, case by case; lawyers think about general rules to protect health.

There are people in both groups who consult their own self-interest before looking at either principles or results, but these people make no real difference, however they may advance themselves. The interesting part of the regional counsel's job, like any job, is working with the people who are dedicated to their duty in the organization. Many, perhaps most, lawyers and managers would instinctively act on both principle and practical judgment; a healthy mind takes the two as one. But a big organization like EPA is differentiated by function; the parts of a single task are given to different parts of the organization to perform, and are reunited, if at all, only in the agency's chief. People reflect their surroundings, and take on the qualities their work demands, and so it happens that rounded, healthy people can become one-dimensional in their work. The lawyers' office is where principles are written down and kept. It is no surprise that the managers in a new administration with new principles will attack the lawyers.

Lawyers and managers get along well when they have common principles and a common understanding of events. Then they are the two halves of a whole. But managers sometimes act on inarticulate premises their lawyers do not share. It seems obvious to managers that the cost-effective control must be the right one; that procedures have no importance in themselves; that small quantities always give way to large ones, that individuals are less important than averages. Lawyers may take the contrary view of these matters. For their part, they sometimes forget that principles, like words, take meaning from context; and that the deepest rules are therefore founded on the most ordinary realities.

Of the two groups, the lawyers have the better share of the work. They must fight according to the rules. To accept rules is to accept the chance of losing, and that is what gives savor to the victories, and dignity and joy to the game.