Avoiding Liability in Environmental Law

by William J. Holmes

 This article was contributed by William J. Holmes.  Mr. Holmes is the principal in William J. Holmes, P.C., specializing in Environmental Law and practices in Oklahoma City, Oklahoma.  He is former General Council to the Governor of Oklahoma and holds an LL.M in Environmental Law from George Washington University in Washington D.C.

   Every lawyer wants to be practical, thorough, and to do the best job for the client. Environmental attorneys are no exception. In a rapidly evolving and new area of law, the benchmarks and parameters are less clear, and consequently so is the ability to determine whether the lawyer has or has not been involved in malpractice. In an area which is new, growing, unsettled, with little precedent, the procedural requirements should also be viewed along with the substantive areas of the law to review the appropriateness of a particular action. The objective of this article is to briefly explore the topic of environmental malpractice and strive to answer two critical questions: (1) is environmental law any different than any other substantive area of law; and (2) what can an attorney do to limit exposure to such liability?

   The first major law review article on the topic was written in the Spring of 1996 by Professor J.B. Ruhl of Southern Illinois University, who received an LL.M. in Environmental Law from George Washington University and practiced from 1982 to 1994 with Fulbright & Jaworski, L.L.P., which can be found at 33 Houston Law Review 173, "Article: Malpractice and Environmental Law: Should Environmental Specialists' be Worried?" There are two central conclusions he reaches: (1) there are fewer claims against environmental attorneys than the bar at large; (2) the analogy to specialty is, in that respect, analogous to the areas of tax, patent and securities law. Consequently, the area of law will likely continue to develop.

   Professor Ruhl suggests four principles be adopted as standards. First, an attorney providing advice and representation should be expected to exercise the degree of skill and knowledge common to those who are not merely environmental lawyers, but sub-specialists in, for example, air, water, or hazardous waste. Second, research and disclosure of the unsettled or changing areas of the law are important to advising the client appropriately. Third, an attorney would not be liable for errors resulting from relying on certain technical information. Finally, liability should be limited to those with whom an attorney client relationship has been established and on whom the client relied and based its actions.

   From my standpoint, the issue of specialization or subspecialization does not adequately shed light on the problem. Nor does a "standardization" that is a rule which must ultimately be applied to the facts of each case and leaves readers of this article more confused than when they started. My approach to avoiding liability in the area of environ- mental practice is different in that it focuses on the problem solving nature of the case. The following analysis demonstrates how an attorney would develop a checklist of relevant areas of inquiry for the client.

   First, I would find the appropriate law for the area of concern. If it is water, then that would include a number of possibilities. There could always be the nuisance action, along with the enacted state statutes, regulations, and case law. In addition, there could also be obvious issues raised under Clean Water Act, the Safe Drinking Water Act.

   Second, as in any case, the process would continue to sort out the potentially liable parties, conflicts of interest, statutes of limitation, and the ultimate management of the case, whether or not it is a notice of violation, litigated, or settled.

   Third, there could also be permits involved, that in themselves could determine whether or not there is a potential violation. In particular, the National Pollutant Discharge Elimination System (NPDES) permits should be reviewed to see whether past and current reports show that the standards for effluent and water quality are met.

   Fourth, in addition to civil liability, the client should also be informed of any state or federal criminal penalties that could be imposed. This is particularly important since many areas of environmental law often straddle both sides of the legal fence.

   The final, and perhaps most difficult problem, arises from the "other" environmental statutes that could be relevant to the case.

   Here a "real life" example demonstrates that environmental law is not merely a distant and esoteric area of the law that gives an attorney a chance to thrive on obscurity, but also involves people where they live each day and can have an impact on what are seemingly unrelated areas of law.

   The Edwards Aquifer is a major source of water in central Texas which is a valuable commodity to the citizens of that state. The analytical paradigm should be sufficient in the f first four approaches above -- correct? In fact, it became far more complex. The blind salamander, a federally listed species under the Endangered Species Act, was in danger of extinction if the water tables became too low. This directly affected the citizens, state and federal installations in San Antonio, because the federal judge could impose water rationing in and months. Seeking a solution, the State of Texas sought to handle it under an existing agency. The judge directed the legislature to create a new board to handle the problem. The Mexican-American Legal Defense Fund (MALDEF) successfully challenged the new state law in federal court. What was the basis?  The composition of the new entity did not accurately reflect the minority Hispanic representation, and therefore was unconstitutional under the Voting Rights Act!

   My only purpose here is to demonstrate two lessons from this "real case." The first point is that every day people and clients are affected by environmental cases, thus heightening the level of interest in certain circumstances. But the second, and more critical point for our analysis as attorneys, who are to represent our clients ethically and vigorously, is that it is sometimes worthwhile to think in "different ways" that may not be obvious on the bald facts of the case. I do not suggest that any attorney could have advised a client on the almost bizarre sequence of events and statutes that became involved in that litigation. Nor would any tribunal hold them to such a standard. In other words, this boils down to remembering that we do not know "all the answers", and that in order to fully advise our clients, it is necessary to go back to the books to see that our "checklist" of environmental statutes has been reviewed to ensure that we have looked beyond the obvious answers in the preparation of our case.

   In summary, the possibility of malpractice in the area of environmental law is, in many respects, no different than any other substantive area of law. While some suggest that "specialization" or "subspecialization" may be the standard to apply, my experience in the area of environmental law is that this is in sufficient. Vital areas of potential importance to the outcome of the case could be found in other areas of environmental law that exist outside the specialty. The best way o shield oneself from environmental malpractice, therefore, comes from a blend of common sense and a reliance on the "expansive view" of the complex interrelationship of environmental statutes, rather than too isolated and narrow a perspective of the ultimate issues involved.