I routinely draw upon the experience and skills gained in my early environmental career. Environmental lawyers must be adept at working and communicating with all sorts of technical stakeholders, including scientists and engineers as well as regulators with technical backgrounds. During an undergrad semester interning for a public interest lobby group in Washington, DC, I worked alongside several of the environmental lawyers who had completed graduate degrees in science and engineering, and I admired their ability to analyze problems through both a scientific and legal lens. At the root of environmental law is ever-evolving science.

Unfortunately, they sometimes cannot be avoided. So much of environmental risk is premised on what parties know or don’t know, and when. If you represent a purchaser of commercial or industrial real estate, you want your client to fully investigate what they are buying. If you represent the seller of that same real estate, you want to shield your client from investigations conducted by a purchaser which could lead to the identification of a previously unknown condition. That is a constant tension that sometimes requires creative solutions to get the deal done, such as shifting some of the risk to a third party through the use of pollution legal liability insurance products, or highly customized, creative drafting.

Knowing how the regulators and the AG’s Office are likely to interpret and approach inquiries or enforcement is a key insight that truly distinguishes an environmental lawyer among his or her peers. Typically, only someone who has sat on the other side of the table can meaningfully understand that thinking. In my practice, I am constantly sensitive to the fact that clients are likely to be interacting with these regulators for the duration of their business activities in the space.  Although one hopes not to have more than one enforcement experience, how that first one plays out can impact how any subsequent interaction might play out, and not just figuratively. Many environmental violations come with increased penalties or other consequences in cases of repeat violations. So preserving the relationship between client and regulator, and being able to use experience to advise a client on which battle is a good one and which may not be, is an important part of guiding a client well.

If the client intends to remain in the business or industry for a long time, and they will likely need a long-term relationship with the applicable regulators, the out-of-the-gate strategy should be systematic compliance to avoid scrutiny and enforcement in the first place. That is not always as straight-forward as it may sound, but being out of compliance can affect the ability to obtain necessary approvals in addition to the expense and delays typically associated with enforcement and after-the-fact compliance requirements. It can also impact the ability to obtain project partners and financing. My advice is to spend the time and shorter money upfront developing good compliance systems and protocols and avoid having to pay a lot more to respond to or defend against a violation down the road. There are certainly cases where regulators can be overzealous, but staying off the radar in the first place is a worthwhile business strategy.