Friday, November 22, 2013

Field Notes

Over the past several months, I’ve spent a lot of time talking to environmental attorneys in my home state about the state of their practices.  The reason for this effort is straightforward: I practiced what seems like a long time ago and in a faraway state, and I like to keep my knowledge of practice current even if it’s increasingly indirect.  But I also thought a report on some of the things I learned might be useful for current students who are wondering what their future practice might look like (and what courses they should take), and for anyone interested in the ways environmental law practice varies from place to place.

The discussion that follows comes with an obvious, but important, caveat: environmental law practice does vary tremendously from location to location.  If I had been talking to attorneys in rural Ohio, I probably would have heard a lot about fracking.  In California, water allocation is a very big deal.  In Maine, there is no fracking and water allocation is almost a non-issue (which makes me, and no one else, kind of sad).  So the comments that follow don’t apply everywhere.  But I suspect some of the issues that came up are representative of broader trends, particularly outside major metropolitan or manufacturing areas.

The Generalists.  Almost all of the attorneys I met with emphasized the generalist nature of their practices.  Many had developed specialties in particular areas, but they had multiple specialties, and their expertise spanned well beyond the bounds of what we would traditionally think of as environmental law.  This was a practical necessity.  While some attorneys had enough traditional environmental law work to keep them busy, most needed to combine their environmental practices with other areas.  And even matters that initially seemed to be primarily about environmental law often turned out to implicate property, contract, tort, tax, and local government law (among others).  Only at one firm did an attorney tell me he thought client needs were creating the need for greater specialization, and the comment sparked a lively discussion, with several of his colleagues disagreeing.

This isn’t particularly surprising, particularly in a smaller legal market.  But it’s worth noting because it has important implications for the ways lawyers prepare for environmental practice.  In my state, at least, a lawyer with ten environmental law courses under her belt is probably going to be a less attractive candidate than a lawyer with half as many environmental courses but a stronger general legal education.

The Land Use/Energy Intersection.  Another unsurprising, but still important, observation is that environmental law remains deeply intertwined with land use and energy law.  In Maine, much of the environmental legal work arises from energy projects, with wind power a particularly significant generator of attorney hours, and hydro still playing an important role.  Traditional land use disputes also continue to be part of the bread-and-butter work of environmental attorneys.  Land use and energy law, it seems, are still very important courses for environmental law students to take.

Litigious West, Collaborative East?  This is just a qualitative impression, not backed by any rigorous analysis, but it seems to me that there’s a lot less environmental litigation in Maine than there was when I practiced in California.  Many of the attorneys I spoke to shared that general impression.  They noted that disputes tend to be settled without litigation, and that most of the litigation that does occur involves administrative proceedings and never gets to the courts.  Those statements could just reflect Maine’s self-image--perhaps accurate and perhaps not--as a place where self-reliant people work things out in civilized ways.   But I think there’s something to it.  Years ago, when I made the switch from eastern environmental consultant to western environmental law student, I was taken aback by the intensity and, at times, the vitriol of environmental disputes in the west.  The 2000 PIELC conference, at which Julia Butterfly Hill was nearly shouted off the stage by anarchists who thought her a sell-out, was a bit different from anything I’d experienced in Massachusetts.  And I think those cultural differences (and the environmental and economic differences that help create the cultural differences) do impact the ways environmental law is practiced.

The March of the Consultants.  Another important impression from my meetings involves the role of environmental consultants.  In Maine and, I think, everywhere else, there’s a form of ecological succession in the environmental profession.  Lawyers tend to thrive in disturbed habitats, where conditions are changing and the rules are uncertain, or in environments (like litigation) where they can perpetuate and protect their niche.  But as the habitat matures and questions become more settled, the consultants move in, using their relatively lower prices to occupy habitats once dominated by the legal profession.  Before going to law school, I was part of that shift; I worked with an ex-lawyer performing the kinds of environmental audits his old law firm had once done.  And the attorneys I spoke with all agreed that the trend is continuing, with lawyers increasingly reviewing the work of consultants or ceding parts of the field to them entirely.

That has interesting implications for legal education and environmental policy, though I’m not sure what they all are.  If many of the people who work in the environmental law field lack legal training, the gaps in their educations could impact the ways those laws are implemented, and it would be intriguing to explore whether and how those changes are occurring.  It also creates opportunities, I think, for law schools that can offer training to future environmental consultants, or who can bring students from other disciplines into law school classrooms.

An Interesting Job.  One last thing emerged from my meetings: the people I talked to generally seemed quite enthusiastic about their work.  I probably shouldn’t make too much of that; a person who doesn’t like environmental practice probably would switch to something else, or at least would be less enthusiastic about telling a professor about her work.  But even discounting for some selection bias (and, perhaps, confirmation bias), I think there’s something to my impression.  The environmental field remains an interesting place to work, and that’s true whether you’re in government, the non-profit sector, or at a firm.

-Dave Owen

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