Environmental Crisis Management: Attorneys and Communications Professionals Working Together

Frank M. Corrado

Frank M. Corrado is President of Communications for Management, International, a Chicago consulting and training firm involved in media crisis training and planning. From 1969 to 1979, he was Region V Director of Public Affairs for the Environmental Protection Agency. His work at EPA earned him the Agency's Gold Medal for Exceptional Service. Mr. Corrado has also worked in news operations for CBS and NBC affiliates in Baltimore and South Bend, Indiana, and has managed combat press support operations in Vietnam. He is author of Media for Managers (Prentice-Hall 1984).

[21 ELR 10115]

Environmental crises make big news. The litany of catastrophes that made it to the top of the network newscasts in the 1970s and 1980s is long: Three Mile Island, Love Canal, Bhopal, Chernoble, the Exxon Valdez, to name a few.¹ Attorneys involved in environmental issues are often confronted with crisis situations — an accidental oil spill, a chemical release, employee misconduct, and so on. How news of these crises is communicated to the public can affect not necessarily the outcome of courtroom battles, but assuredly the public's perception of the company's goodwill and perhaps its ability to remain in business. But how and what to inform the public after a crisis occurs frequently throw a company into turmoil, with lawyers and public relations professionals vehemently disagreeing about what to say, what to do, and how to do it.

This Dialogue discusses how environmental attorneys can work with top-level management, communications professionals, and employees to put a crisis management program in place before a crisis occurs. It lists the steps to take to set up such a program and discusses the value of doing so. It also presents a case study, demonstrating how some of the media tips discussed in a recent Dialogue² can be used in a crisis management program.

The Crisis Situation

A crisis can be an accident or an emergency that poses a major threat to the survival of an organization. Accidents are dramatic, disastrous events (e.g., a toxic chemical leak, an explosion). An emergency is less dramatic, but can be equally traumatic (e.g., malfeasance, labor problems). Two criteria apply to both situations: (1) how close could the crisis come to closing down the organization, and (2) what is the probability that it will happen. A rigorous program of crisis management involves developing, testing, and updating crisis plans on a continuing basis. Guidelines for doing so are discussed below.

Five Basic Steps of Crisis Planning

Developing internal support. In selling the idea of crisis planning to top management, important questions to ask include "How well can we detect a crisis early on?" "How well could we manage a crisis?" "Do we have a system in place to handle a crisis before, during, and after it happens?" For most organizations, thorough self-appraisals and honest answers to such questions will underscore the importance of crisis management programs.

Proposing a process. A crisis planning process should include representatives from all levels of the organization: key executives, communicators, and staff (e.g., legal, claims and risk, human resource, and technical specialists). They should map out who will be on the team, what will be covered in the plan, and so on.

Preparing a plan. In formulating a crisis plan, the crisis team lays out procedures for notification and response. It clarifies who will do what and when. It also specifies who will inform employees and the public and what methods will be used to do so. The policy statement, usually written by senior management, is an important indicator of how committed the company is to risk reduction and crisis management. It expresses the organization's philosophy on how it responds to its needs as well as to those of the public.³

But crisis planning does not end with the plan; it is an ongoing process of continually weighing information, developing [21 ELR 10116] strategies for a range of potential crises, and periodically testing the organization's ability to respond to them.

Organizing a crisis center. A crisis center is not simply a room filled with alarms and blinking red lights; it is often an in-box and a calendar or a conference room that is activated and staffed when needed. Whoever is in charge of staffing the crisis program is usually also responsible for the internal and external monitoring that uncovers danger signs and puts the crisis team into action when the crisis occurs.

Conducting training and simulations. The most important role a crisis team plays is remaining alert to potential crises, conducting brainstorming sessions to come up with strategies for managing them, and organizing training and simulations to test and implement crises procedures.

Confrontations Behind the Crisis: Attorneys vs. Public Relations Professionals

Most attorneys and public relations specialists who have worked on a crisis agree that advance planning is crucial. Although the legal experts often disagree with the reasoning and methods of the communications specialists, and vice versa, disputing these points in the middle of a crisis exacerbates an already damaging situation.⁴ For example, Robert B. Irvine, a communications consultant who was involved in the Exxon Valdez incident, stated that early in the crisis, he and a team of crisis experts made recommendations to help repair the image of Aleyaska Pipeline Company, which had been severely damaged due to the disaster. The attorneys rejected the ideas, and so did senior management after the attorneys asked them, "Are you willing to risk a criminal indictment?" "It's an unfair fight," says Irving, who quotes attorneys in crisis situations as sometimes telling top management, "You can listen to the PR people and you'll look good in the press, but you'll probably be indicted on criminal charges. Or you can listen to us, keep your head down, and you'll be let off."⁵

Lawyers are trained to think in terms of liability and of protecting their clients. One public relations specialist, James Horton, suggests that in a crisis, lawyers see lawsuits at every turn. This thinking often translates into advice to management to hunker down and to say nothing (since anything it says might be used against the company).⁶ A public relations professional, on the other hand, is trained to find out who, what, where, when, why, and how and to report that information. Essentially, public relations people are interested in exposure; attorneys are interested in protection.⁷ Different as these two viewpoints are, however, they share a common goal: what is best for the organization. On that common ground environmental attorneys and public relations professionals can devise a crisis planning strategy that will satisfy both the desire to expose and the need to protect.⁸

The Attorney's Role in Crisis Planning

Once an organization recognizes the need for a crisis management program and commits to implementing it, the organization's attorneys should be involved in shaping the focus and procedures that make up the program. Key points for environmental attorneys to consider are listed below.

Insist on early planning. With worldwide communications operating on a real-time basis, an organization has no time to hash out how to disclose news of a damaging occurrence; it must act immediately and decisively. By examining the legal implications of numerous possible crisis scenarios, attorneys can inform public relations specialists and top management of what to expect in terms of liability before the event occurs.

Set ground rules. Environmental attorneys should insist from the start that there be ground rules and procedures as to how quickly information will be released, what internal checking mechanisms will be used before releasing information, and what the role of the legal counsel will be. Decisions must also be made before a crisis happens about who will be informed: employees, shareholders, local community, national media. How are these decisions to be made, and who will advise management about its options before and during the crisis are among the questions that must be dealt with.

Insist on good record-keeping. This is especially crucial during the crisis. One expert advises that a person be designated to maintain a log of events as they occur and be [21 ELR 10117] responsible for keeping all related memos, faxes, and correspondence.⁹

Do not underestimate the importance of negative publicity. The court of public opinion can have a significant impact later as individual and class action cases come to trial. If there is a media "laser-fix" on poor corporate performance, the story will be re-covered as each case comes forward. And the impact could have political and regulatory repercussions and eventually hit the organization's bottom line. There is no question that the attorney's responsibility is to protect the client; but sometimes this could very well mean going public early to calm public concerns and assuage public outrage. It is in this situation where attorneys and public relations staff would do best to rely on each other's expertise: the attorneys providing advice on the legal ramifications of media exposure; the public relations professionals determining which media methods are best suited to make that disclosure.

Think in visual terms. The growing use of video and other visual devices in the courtroom reflects a trend that is going on throughout society. Video images dominate mass communications and are today's primary influencer of public opinion. Lawyers are usually so convinced of the power of the written word that they tend to forget the power of pictures.

Do not rely on environmental regulatory agencies to manage a crisis. Simply put, the governmental process for managing community relations crises does not work. Federal regulatory programs are conducted under the Administrative Procedures Act (APA),¹⁰ which, to my knowledge, has rarely provided a successful forum for the public or the regulated industry to deal with a controversial issue.

The APA Minimum Fails to Fully Involve the Public

Legal notices, for-the-record hearings, an ambiguous definition of "public," and the tack-on nature of public hearings conspire to defeat meaningful community dialogue and can easily torpedo the best laid plans for remediation, facility siting, construction permit issuances, etc. The problem simply is that it is not enough to follow "minimum" requirements.

While the intent of the Act is laudable, its implementation by environmental agencies has focused more on procedure than on substance. Several years ago, I learned from Environmental Protection Agency "public involvement clerks" in Chicago that their procedures called for barring questions from the public until the formal portion of the meeting was concluded. That approach guarantees a public record devoid of substantive comment. Recent conversations with a water pollution hearing officer confirm the continuation of this frustrating process that serves no public good.

The legal profession could do the environmental world a great justice by helping to revise the administrative procedures spelled out in deadening detail in the Federal Register and by encouraging alternative approaches to community relations. Such alternative efforts should stress "good-faith" efforts to involve the public in the decisionmaking process through the use of proven effective techniques, such as strong technical communications, informal meetings, and audience targeting and negotiation. Evaluation should be on pro-active strategies that target key community interest groups.

Pulling It All Together: A Crisis Case Study

A leading tuna canner has been accused by environmentalists of lying about its commitment to "dolphin-safe" practices. An environmental group has placed advertisements in newspapers nationwide, encouraging consumers to boycott the company's product. How should the company handle the media crisis that is brewing? Could the situation escalate into a legal crisis as well?

Day One — The Incident Happens

Is the company caught by surprise? Not if it has been keeping tabs on what is going on — a major job for the company's crisis management committee. An effective committee must have top executive involvement and include public relations staff and specialists in legal issues, environmental affairs, human resources, and so on. If there is advance warning of the upcoming ad (as there should be), the committee should quickly convene and discuss options: do nothing, respond after the ad appears, or attempt to dissuade the group from running the ad.

By doing nothing, the company is betting that people will quickly forget the ad. By waiting until the ad appears, the company is simply reacting to the environmental group's agenda. A quick check of the facts might persuade the company that the claim has no merit or that it is based on a technicality. In either case, the company might consider calling the group and arguing the issue. (Most often, this will be of little benefit, since the raison d'etre of public interest groups is to be visible and on the attack.) If the facts are wrong, the company could consider its legal options, which might include a libel suit, and communicate them to the environmental group.

After the environmental group's ad appears, the company should be braced for a deluge of calls from the media attempting to get the company's side of the story. A chief spokesperson should be identified, possibly the CEO or a top company environmental official. A quick response needs to be put together by the PR staff setting forth the company's position. It might be wise for company officials to also touch base with key constituencies, such as regulators, legislators, etc.

Day Two — The Response

If the company does not learn of the ad until it sees it in the newspaper, an immediate decision must be made as to the response. This is simply because the public has a short memory and tends to recall the first position it hears on an issue.

The options are similar to those of Day One, but the company may also consider spending money on rebuttal ads. Those ads may be drafted by the communications or environmental manager and reviewed by the attorney before being sent out for publication. Public relations people often complain that attorneys do too much "wordsmithing" of their copy. In this instance, the attorneys have to realize [21 ELR 10118] that copy must be simple, direct, and brief; the public relations people must realize that it must be defensible as well.

Summary

The field of crisis communications was born as a result of the confusion, rumors, and botched communications that were the hallmarks of the near meltdown of the Three Mile Island nuclear power plant in the late 1970s. The hard lesson to be learned from that episode was that an organization should inform the public as quickly and as completely as possible about a damaging occurrence in order to calm nerves, stop rumors, and restore confidence. Some companies seemed to have learned vicariously from Three Mile Island's experience: Johnson & Johnson's response to the Tylenol poisonings and Union Carbide's initial response to the Bhopal disaster are two good examples. But not all have. In fact, some experts attribute Exxon's inadequate public response to the Valdez crisis to the fact that it had no sense of the level of the American public's concern about environmental issues: "There were nine months of solid environmental stories preceding the Valdez accident: the garbage barge, medical wastes on East Coast beaches, and then comes the spectre of somebody polluting the last American frontier."¹¹

In a crisis, deciding how to act responsibly toward the public while protecting its own self-interests is a fine line many organizations are fated to walk. But by gathering facts quickly, plotting scenarios, and determining the legal ramifications — both before and during crises — an organization can disclose damaging news without harming its long-term legal standing. Nonetheless, the questions will remain, "What did you do and how did you do it?," and the tort process will continue.

1. An unpublished study by Robert B. Irvine and Julie Hoffman for the Institute for Crisis Management, in Louisville, Kentucky, has documented 2,988 reported crisis events in the 23 months from January 1989 to December 1990. Of the 23 categories identified, the environmental crisis category, with 875 events, was the second largest (after industrial accidents). Among the other crisis categories in the study were judicial actions, boycotts, labor problems, defective products and services, and law suits.

2. Corrado, Media Tips for Environmental Lawyers, 20 ELR 10425 (Oct. 1990).

3. For example, Johnson & Johnson's famous "credo," which spelled out the company's commitment to consumers, is often cited as the key to its success. The credo, which was written by the founder's son in 1944, states, in part, "We believe our first responsibility is to the doctors, nurses, and patients, to mothers, and to all others who use our products." The credo also talks about the duty of the company to the community, employees, and stockholders. Chi. Trib., Nov. 21, 1982, sec. 5, at 1.

4. George Burditt, a Chicago food and drug attorney who has been involved in a number of product recalls, advises that the answer to managing a crisis is not to have a tug of war between the legal staff and the public relations staff. He suggests that by having a team in place before a crisis happens, decisions involving legal, public relations, and quality assurance matters can be resolved before the crisis occurs, thereby allowing the organization to respond immediately in a carefully orchestrated manner. Telephone interview with George Burditt, Oct. 1990.

5. Robert B. Irvine, crisis communications consultant, Louisville, Kentucky, telephone interview with the author, Oct. 1990.

6. Telephone interview with James Horton, of Chester Burger & Co., New York City, Oct. 1990.

7. In a telephone interview with the author, a former environmental attorney for a major West Coast defense contractor stated that he faults lack of proper training in law schools for the defensive, legalistic approach many attorneys have to public communications.

8. Richard Hyde, senior vice president at Hill & Knowlton, who was at Three Mile Island, believes that lawyers are becoming more astute about crisis situations, stating that they have respect for public relations. Hyde finds that both public relations professionals and lawyers can benefit from each other's knowledge during a crisis. "Mutual respect and cooperation are hard to learn in the heat of crisis. They needto be worked out ahead of time in simulations, training, drills, even if it is just informal conversations among attorneys, operating people, and PR people," he stated. Telephone interview with Richard Hyde, Oct. 1990.

Echoing a similar viewpoint, Jack Modzelewski, head of Fleishman-Hillard's public relations office in Chicago, stated, "We need to work out a framework with the attorneys on how far we can go in telling our side of the story. Any enlightened communications person knows that when you are in a crisis situation, there are some legal implications down the road." Telephone interview with Jack Modzelewski, Oct. 1990.

9. Irvine, supra note 5. Irvine also suggests that leaving a tape recorder on to record events during the first few hours of a crisis might be worthwhile, since events happen so quickly then and reconstructing this information later could be time-consuming and expensive. Id.

10. 5 U.S.C. §§ 500-559, ELR STAT. ADMIN. PROC. 001-018.

11. Irving, supra note 5.