Tuesday, November 12, 2019

Environmental Consultants and Environmental Law

If you’ve practiced environmental law, you’ve probably worked with environmental consultants.  Environmental controversies often involve engineering, science, and planning, and lawyers navigating these controversies routinely interact with technical specialists like engineers, scientists, and planners (sometimes those specialists also handle work lawyers might think of as legal, and do so at prices far below attorneys’ typical billing rates).  Many of these technical specialists work for private environmental consulting firms.  Their importance to environmental practice is hard to overstate; they really are everywhere in the field.

But academics never have written much about environmental consultants.  When we think about who matters to environmental regulation, we tend to focus on legislators, agency regulators, judges, regulated businesses, and non-profit advocacy organizations.  A few years ago, I went looking for articles exploring how consultants fit into this ecosystem.  I didn’t find anything.

Because of that failed search, I spent a long time researching the environmental consulting industry, and the results of that work are available in just-published articles here and here.  The first linked article, published in the peer-reviewed journal Regulation and Governance, addresses ways environmental consultants’ roles differ from traditional stereotypes of business.  The basic story is a cautiously optimistic one: I found that consultants were working as trusted intermediaries between regulators and the regulated, and also that consultants expressed belief in and actively (but also quietly and gently) worked to support the regulatory regimes they helped implement.  The second article, just published today in the Arizona Law Review, considers similar themes.  It also discusses implications of consultants’ work for debates about public choice theory, privatization, social movements, and the history of environmental law.

I hope the history part of the story will be particularly interesting to environmental lawyers.  There already are some wonderful accounts of environmental law’s history, but they tend to focus on legislative changes—as well as the broader societal changes that allowed environmental legislation to come about.  As a consequence of this legislative focus, most environmental law history treat recent decades largely as a time of non-events; the primary story from 1990 on is a tale of Congressional deadlock and inactivity.  But I think there’s much more to be said about how environmental law has continued to evolve, and some of the most interesting evolution involves agency staff, regulated businesses, and intermediate entities like consulting firms.  The emergence and importance of the environmental consulting industry is a largely-untold piece of that history.

I also hope the articles shed some light on another important and puzzling environmental law question: why does environmental regulation often succeed?  Success sometimes seems improbable; after all, the political challenges of enacting and implementing environmental law are painfully obvious, and the most committed advocates for environmental protection are often severely outgunned.  Sometimes these mismatches produce predictable consequences, and we wind up with non-existent or anemic regulatory programs.  But in a surprising number of realms, regulation has reduced environmental problems, often substantially, and even as our economy has grown.  How have we pulled this off?  My articles don’t purport to answer that question in anything more than a very preliminary and very partial way; I make no claim that the environmental consulting industry is the hidden key to environmental law’s successes.  Instead, the tentative but still hopefully-interesting argument is that we might understand regulatory successes better if we learn more about the incentives and cultures of private actors who help put regulation into effect.

- Dave Owen


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Great post. Thanks for sharing.

Posted by: John | Sep 15, 2020 9:43:18 PM

Environmental consultants play a big role in due diligence and remediation. the industry has changed significantly with the emergence of many "commodity" shops that crank out thousands of phase 1 reports using independent contractors. the quality of the work has been impacted and they often miss or fail to adequately assess environmental issues. There have been a number of articles published on liability of consultants. interesting issues arise when the consultant is engaged by bank, fails to flag contamination and the borrower/property owner is stuck with a cleanup. Generally, the borrower cannot bring breach of contract or malpractice action against the consultant b/c lack of privity. I discussed a recent case involving failing to discover a site was formerly part of the Manhattan project on my blog.

Posted by: Lawrence P. Schnapf | Nov 13, 2019 6:40:01 AM

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