The Lawyer's Role in Decisionmaking -- One Environmental Lawyer's Perspective

The Lawyer's Role in Decisionmaking — One Environmental Lawyer's Perspective

Mary L. Walker

Mary L. Walker is the Assistant Secretary of Energy for Environment, Safety and Health. She has also held positions in the U.S. Department of Justice, as a Deputy Assistant Attorney General, and the U.S. Department of the Interior, as the Deputy Solicitor. Prior to joining the federal government in 1982, Ms. Walker was a partner in the Los Angeles firm of Richards, Watson & Gershon, and previously, an attorney with the Southern Pacific Company in San Francisco. A member of the California State Bar since 1973, she graduated from Boston University Law School in 1973, and from the University of California at Berkeley with a degree in field biology/ecology in 1970.

[17 ELR 10040]

"Environmental Lawyer." Twenty years ago this term carried no meaning and one would have been hard pressed to find a member of the bar who would admit to such a legal invention. Historically, it originated in the environmental movement of the 1970s, as the momentum of new environmental requirements was simultaneously propelled by an active environmental constituency and challenged by the competing interests of industry. Conceptually, however, the environmental legal profession evolved, as have all others, from a very fundamental aspect of the law — to represent the interests of society and seek to resolvethose conflicts that arise when these interests are competing ones.

The environmental bar was only beginning as I entered the legal profession, yet I felt a deep affinity with those striving to provide advocacy for environmental protection. While admitting a "closeness to the cause," and a longstanding interest in our God-given natural resources, I did not come to this branch of law as a crusader. It has always seemed to me that man, in the pursuit of his very nature and intellect, creates conflict — or the potential for conflict — with his natural environment. That this conflict will arise is a certainty. It is how man resolves this conflict that will decide what legacy he leaves for future generations. It was the resolution of such conflict, the "balancing of the scales," that attracted me.

The search for "what is right" in the face of such a conflict put me on an early path to a career in law. The study of law helped me to better identify and articulate the competing interests that exist in our society, and to make me a better balancer of these interests. Understanding these competing interests as an environmental lawyer has made me a more useful adviser to the decisionmaker. In my current role as a manager and policymaker, this approach has allowed me to seek the "right" course, while still understanding the necessary constraints, risks, and tradeoffs inherent in my decisions.

To understand my perspective as an environmental lawyer — and today, as an environmental policymaker — it helps to see that I first approached law as a biological scientist, and more specifically, an ecologist, and not as a political scientist, social scientist, or historian (the background of many American lawyers). My academic background perhaps best illustrates the evolution of this professional perspective, one that has been invaluable in my career.

It was the spring of 1970, and like many college seniors, I was deciding what career path to take. Science had been a passionate interest since early high school, and my curiosity about our natural resources had led me to study subjects such as animal ecology and wildlife biology while at the University of California. My college degree, soon to be had, would be in field biology/ecology.

I had offers from graduate schools to pursue an advanced degree, but my strong desire to be involved in national environmental issues led my professors to suggest a different path: law school. There were, they said, people raising "the ecology flag" who did not fully understand sound environmental management. A science background, they suggested, could be helpful in understanding the emerging legal issues. I considered the idea. Lawyers in our society are often powerful contributors to the decisionmaking process: they influence our laws; they draft agreements by which people of influence conduct their affairs; and in the end, they even decide what is allowable under the law. Law school, I decided, would be a worthy effort.

Lawyers in the Private Sector

Since graduating from law school, I have seen the evolving area of environmental law from many sides. As an "inhouse" corporate attorney in the early 1970s, I advised a corporation with diverse industrial, commercial, and land holdings on then-emerging federal and state environmental statutes. The competing interest for corporate management was the effect upon the company's profits and its operations. Eventually, most American companies would come to see good environmental practices as good business, but this would take time. Certainly in the early 1970s, many American companies were not yet of this view. The challenge as a lawyer advising such companies was to find creative ways to change longstanding practices that were increasingly leading to enforcement litigation and liability.

An in-house corporate attorney can have a significant influence for positive change, although the frustration experienced may, at times, be greater than that in private practice. During the years I was a corporate environmental attorney, in addition to defending the company against enforcement actions, I was able to suggest to management some actions to improve the company's environmental compliance status. Basically, these focused on providing education opportunities for line management in the requirements of the new laws, and achieving a greater understanding of the scope of the company's potential environmental problems and liabilities.

One effort was a series of one-day seminars given system-wide to line managers in eight states on the statute of most concern at the time, the Federal Water Pollution Control Act. As a part of the seminar, in which the U.S. Coast Guard participated, the company's engineering management suggested good preventive procedures and provided practical suggestions on complying with the law's requirements. Designing and participating in these seminars was a very satisfying experience. The second effort was really an early attempt at an environmental audit — a site-by-site review of the company's facilities to identify (and avoid) potential compliance problems — and hence, avoid future [17 ELR 10041] legal problems. These two efforts helped change the attitudes and practices that had contributed to the company's past environmental compliance record. They also produced positive changes in the company's decisionmaking process. As "outside" counsel, I might never have been in a position to suggest or participate in such worthy efforts.

Three years after becoming a corporate environmental lawyer, I had an opportunity to see environmental law from another side. I was attracted to private practice by the prospect of greater independence and a more challenging (or at least different) set of environmental legal issues. The firm I joined has a unique practice, because in addition to representing landowners and developers (who customarily have considerable need for an environmental lawyer), it represents over a dozen small cities in Southern California.

Local land use planning and regulation often raise environmental issues of first impression. The lawyer who would attempt to provide a city council with maximum flexibility while still charting a legally defensible course is, if nothing else, challenged. Since advice is often of necessity given during city council meetings as the issues arise and the decisions are being made, it is a chance to see how well you do on your feet. The acid test, of course, is how well you do when the courts review the decisions on which your advice is based. Experience in litigation is an invaluable tool whether or not one intends to become a trial lawyer. From the beginning of my legal career I insisted on gaining this experience. This was true even as a corporate attorney, when outside trial counsel could have been hired. Later, in private practice, clients trusted my advice more when they knew I understood what was ahead for us in the courts should we be challenged. Some lawyers are so intimidated by the possibility of actually trying a lawsuit that they are weak in settlement negotiations. Others are so ignorant of evidentiary concerns at trial that they fail to make an adequate record to support the client's decision.

Six years in private practice taught me much about the role of a lawyer in decisionmaking. Clients generally know where they want to go, but they look to the attorney to find ways to get there. It is easy to offer only one, the safest, way. But the real opportunity is to find many ways to accomplish the desired result, explain the relative risks associated with each path, and then let the client decide.

This is especially challenging when the client is a land developer or a city council struggling with the desire for commercial progress while concerned that the impacts on the natural environment be minimized. Thinking creatively as to how the client's goals might be successfully accomplished pays off, as the client seeks the lawyer's advice more often and earlier in the decisionmaking process. Likewise, I found it challenging to reduce that decision, once made, to a document — whether city ordinance or private agreement — that reflected a sensitivity to environmental concerns while still accomplishing the intended purpose.

Lawyers in the Federal Government

When, in 1982, I joined the Reagan Administration as the Deputy Assistant Attorney General in the U.S. Justice Department's Land and Natural Resources Division responsible for supervising the federal government's environmental litigation, I felt prepared, honored, and a little awestruck at the enormity of the task. While I had supervised complex litigation before, the size of the individual cases, their potential to affect major federal programs, and the caseload of the attorneys I supervised (a total of 2500 cases and matters) represented a significant increase over that which I had previously experienced. In many instances, under relatively new statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act, we were arguing cases of first impression, asking the court to establish a rule of law that would add flesh to the bones of the federal government's enforcement effort under these hazardous waste laws. Congress may have stated its general policy in those statutes, but specific provisions were left to be construed, with a resulting broad or narrow range of enforcement powers. Thus, our role as the government's lawyers was to articulate and help the client agency to successfully accomplish its enforcement goals. In the federal government, the challenge was to remain in this role and not become the policymaker.

Litigation can drive policy, as a lawsuit raises issues not addressed in the initial decision on which the suit was based. Trial lawyers must, of course, advocate positions before the court — hopefully those of the client. Sometimes it was difficult for the trial lawyers to get a clear picture of where the client agency wanted to go, its priorities, and its policy. This was true, of course, when an agency's policymakers had not fully developed their policy; it was also true where the suit raised issues not previously considered and when the policymakers were not able to respond quickly to those issues. To the Justice Department's credit, the attorneys resisted the possibility of surmising what the client agency might want to do, and instead, before they took a position in court on a matter of policy, and before we set priorities for our litigation effort, the lawyers would request a meeting to discuss the client agency's objectives.

This is where an agency's general counsel becomes critical. I found these offices to be staffed with talented, sincere attorneys who understood their role as facilitators of successful decisionmaking. They were strong advocates for the decisionmaker's views; and because they were closer to the program than were we, they were able to assist us in articulating the agency's policy to the court. Attorneys with the client agency's general counsel's office worked closely with Justice Department attorneys in preparing cases for trial and were substantial contributors to the written briefs submitted to the court. Some general counsels' offices also involved the policymakers in meetings with Justice Department litigators when policy positions had to be developed during the course of a suit. Problems can arise, as sometimes happened, when an attorney in a general counsel's office confuses his role with that of the policymaker and attempts to make the policy choices for his client. The effect then is confusion and delay in the resolution of issues, not to mention a frustration on the part of the trial lawyers who are at least once removed from the real decisionmakers. Although it rarely happened, the other danger is that the government can take a position that does not reflect the true policy of the administrator of the program.

In 1984 Secretary William Clark asked me to be the Deputy Solicitor for the Department of the Interior. This presented an opportunity to see first-hand how this "corporate" attorney-client relationship functioned in the context of the federal government. There were many similarities [17 ELR 10042] to my experience both as "in-house" corporate counsel and as a lawyer in private practice. The range of my duties, however, varied considerably. In addition to supervising that Department's 220 attorneys, the Deputy Solicitor also handles special assignments. Mine included being the Project Director for the development of the Natural Resource Damage Regulations under § 301 of CERCLA, and serving as a member of two State Department-led delegations (for the Pacific Salmon Treaty with Canada, and the 1867 Convention Line-Bering Strait Boundary negotiations with the U.S.S.R.). In addition, my duties included supervision of oil and gas cases, wildlife enforcement matters, Indian water cases, and several thousand enforcement and collection cases raising precedent-setting issues under the Surface Mining Control and Reclamation Act. Again, however, the lawyer's role was to carry out the client agency's goals, and the Secretary's and Assistant Secretaries' policies, by clearly articulating their objectives, identifying legally viable options, and interpreting the applicable statutes and case law. Unlike the private sector, however, and consistent with my experience at the Justice Department, I sometimes found that the decisionmakers were content to have the lawyers make their decisions, and in rare cases even encouraged the lawyers to opine on what their policy should be. To their credit, in these instances the attorneys in the Solicitor's office attempted to get the people in charge of policy to make the decisions. The necessity of engaging in this process, however, would slow our ability to assist the litigators.

Lawyers are important partners in achieving goals and making changes. They are the ones who should be working closely with the decisionmakers and managers to "make it happen" and defend the action as "right" when challenged. They can contribute to policy content by clearly articulating objectives and creatively suggesting ways to achieve the client's objectives. They can also assist in the rapid implementation of the decisions once made. But their job is not to make the policy or decide what the objectives should be, even in the case where the decisionmaker is not certain of his policy. The challenge for the policymaker is to set policy and provide clear direction for its implementation; the challenge for the attorney is to provide a legal analysis that sets forth the pros and cons of the various options in order to enable the decisionmaker to make the best decision. Programmatic confusion or failure can result when either individual fails to recognize his proper role in policymaking and its implementation. For example, senior managers in federal and state government have confessed to me their sincere belief that they could accomplish more without the lawyers. I have also witnessed the attorney as "deal breaker" in private practice. Too often the lawyers are in the way of real progress because they have their own "agenda," or they are habitual "nay sayers." Those who fall into these categories do a disservice to their clients and to the legal profession as a whole. In some unique situations, such as public interest law firms, the lawyer may be, by design, more properly in a policymaking role. But I believe that this is not — and should not — generally be the role of the lawyer.

Lawyers as policymakers

As the Assistant Secretary for Environment, Safety and Health at the Department of Energy, I have now become a policymaker. I serve Secretary John S. Herrington, who in making sweeping, positive changes in the environmental area, has made his policy clear: the Department will conduct its operations "in compliance with the letter and spirit of applicable environmental statutes, regulations, and standards," and, the Department "is firmly committed to assuring incorporation of national environmental protection goals in the formulation and implementation of its programs." I encouraged this statement of policy, which the Secretary signed in January 1986, because I do not think the public, Congress, or the Department's employees should have to ask about our objectives in this important area. As a result, Secretary Herrington identified the Department's environmental goals early on, and we are now putting into place specific measures designed to achieve those objectives. This does not mean there is no conflict. That is inevitable. But the environmental interest is clearly stated; and because top management is committed to good environmental practices, our decisions reflect this consideration and the desire to be consistent with the Secretary's stated goal.

In my new role, I have tried to be a strong manager, to clearly articulate the Secretary's policy, and to make decisions consistent with that policy. I am fortunate to have a dedicated, talented staff of engineers, physicists, and other professionals and environmental specialists who are committed to excellence in achieving our goals. Relying on their good technical advice in response to the question "what is right," we can make the necessary decisions, and recommend to the other senior managers of the Department courses of action designed to achieve the Secretary's environmental objectives.

The role of environmental policymaker in the federal government carries with it tremendous satisfaction because the issues are important, the public needs clear, and the opportunities for decisive leadership in accomplishing significant goals so frequent. There are also many challenges not usually encountered by the attorney, such as testifying at numerous congressional hearings on the current "hot" topics such as acid rain, hazardous waste, and nuclear safety. As a manager faced with repeated demands for testimony, my former legal and trial experience has been helpful, especially when the questioning becomes rapid fire. Then, too, there is the opportunity to be an advocate for the Secretary's policy and programs. Given the incredible number of laws and regulations that give rise to and shape current environmental issues, I am glad my background is environmental law. As a manager, however, I still need the assistance of able attorneys working alongside me and my staff to help us achieve our goals.

I would not suggest a new lawyer enter government service without some appreciation for these many roles and which role should be his. Then, too, some positions afford more training and development than others. The Justice Department, for example, prides itself (as well it should) on having excellent training programs for its lawyers. The quality of supervision and high standard of the law practiced in that Department is, in my view, consistently and incredibly good.

My experience as an environmental lawyer with the federal government came first as a manager of litigation after being a partner in a law firm for several years. An equally rewarding experience, however, and perhaps a path [17 ELR 10043] more often taken, is to enter government service early in one's legal career. The cases and issues are often of larger import than the young lawyer will find in private or corporate practice, and the opportunities for significant responsibility are frequent. This experience can also provide a strong foundation for a private or corporate practice later. Whatever path you take, you will find it rewarding; and government experience, whether local, state, or federal, will give you a unique insight and perspective into the lawyer's role in decisionmaking.