A Trail Guide To Careers In Environmental Law

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A Trail Guide to Careers inEnvironmental LawBernard Koteen Office of Public Interest AdvisingHarvard Law SchoolBernard KoteenOffice of Public Interest AdvisingHarvard Law SchoolWasserstein Hall 4039Cambridge, MA 02138Updated and Edited by:Samantha Sokol2013 Summer FellowEdited by:Catherine Pattanayak, Esq.Assistant Director1Environmental Trail Guide 2013

Table of ContentsAcknowledgements .Introduction .Chapter 1: Content Areas .Chapter 2: Practice Settings .I.Government .II.Nonprofit .III.Private Public Interest Law Firms .Chapter 3: Environmental Law at Harvard .Chapter 4: Landing a Job .Chapter 5: Alumni Narratives Chapter 6: Selected Environmental Law Organizations Chapter 7: Selected Environmental Law Fellowships .Chapter 8: Job Search Resources .2Environmental Trail Guide 2013

AcknowledgementsMany thanks are due to the nearly thirty environmental and energy attorneys who wereinterviewed for this guide. The following individuals generously donated their time andthoughtful insights: Ona Balkus, Jeff Baran, Phil Barnett, Tom Benson, Eric Bilsky, Dale Bryk,Abigail Burger-Chingos, Brett Dakin, Christopher Davis, Elizabeth Forsyth, James Gignac,Devon Goodrich, Kristen Hite, Allan Kanner, Gavin Kearney, Howard Learner, David Littell,Matt Littleton, Nancy Marks, Miranda Massie, Molly McUsic, Larry Parkinson, Read Porter,Kevin Reuther, Staci Rubin, and Jill Witkowski.Special thanks to David Littell, Nancy Marks, Howard Learner, James Gignac and Matt Littletonfor providing personal narratives.In writing this guide, we benefitted from the substantial expertise of the faculty of theEnvironmental Law Program (ELP) at Harvard Law School. Profound thanks are due to KateKonschnik for her detailed proposals to update the 2006 version of this guide. We would alsolike to thank Shaun Goho, Jody Freeman, Wendy Jacobs, and Richard Lazarus. In addition, wedrew information about the trajectory of U.S. environmental policy from a fantastic speakingevent presented by ELP in July 2013, which featured EPA Administrator Gina McCarthy.I would also like to thank Judy Murciano for her help editing the Fellowships section of thisguide. Many thanks to Alexa Shabecoff and Joan Ruttenberg for pointing me in the direction oftheir colleagues, advisees, and friends working in environmental practice. Finally, muchgratitude is owed to Catherine Pattanayak for her direction, mentorship, and diligent revisions.3Environmental Trail Guide 2013

INTRODUCTIONAs Democratic Staff Director of the House Energy and Commerce Committee, PhilBarnett ’83 negotiates the language of environmental legislation. Abigail Burger Chingos ‘09of the Office of Enforcement at the Department of Energy writes regulations to ensure thatconsumer products meet efficiency standards. Elizabeth Forsyth ’11, the Beagle/HLS Fellow atthe Natural Resources Defense Council, has sued the government for failing to protectendangered fish species from overfishing. And Christopher Davis ’80, the Director of InvestorPrograms at Ceres, advises corporations to encourage investment in environmentally-soundbusiness practices. These are only a few examples of the many and varied career options forenvironmental lawyers.Environmental lawyers often appear before federal, state, and administrative law courts—representing government agencies, enforcing laws through citizen suits, and challenging agencyaction in administrative hearings. But environmental law practice involves a much broader skillset. Environmental attorneys draft legislation and lobby elected officials; advise policymakers inall levels of government; participate in the rulemaking process and design new regulatoryregimes; develop innovative approaches to permitting; coordinate community education andoutreach efforts; and engage in public policy discussions at think tanks and academic institutions.Environmental attorneys also support business and property transactions for land conservation;negotiate financing deals for start-up renewable energy companies; participate in public-privatepartnerships to experiment with new technologies; and consult with industry on how to achievecompliance with myriad environmental laws. In short, the field of environmental law offersprofessional choices that can be remarkably diverse and satisfying for the public interest lawyer.Initially, environmental legal issues were addressed primarily through common lawnegligence, nuisance, and property lawsuits, and to a lesser degree through a limited number offederal, state, and local laws controlling land and water usage. Environmental law as practicedtoday, however, has much of its basis in federal environmental statutes enacted within the pastforty years. This body of law aims to protect the environment from pollution and overuse, andgives individuals and groups the right to bring legal action. Some major federal environmentallaws include: The National Environmental Policy Act (NEPA) of 1970, which requires that federalagencies undertake “Environmental Impact Studies” before pursuing projects that impactthe environment.The Clean Air Act of 1963 and the Clean Water Act of 1972, which regulate therelease of pollutants into the air and water.The Endangered Species Act of 1973, which designates and protects species on theverge of extinction.The Comprehensive Environmental Response and Conservation Act (The“Superfund” Act) of 1980, which assigns liability to polluters who contaminate siteswith hazardous waste and requires them to pay for clean-up.4Environmental Trail Guide 2013

Despite nontrivial legislative grounding, environmental law is not limited toenvironmental statutes. Administrative regulations, agency decisions, and policy at the federal,state and local levels all help to achieve these goals. In addition, environmental law cuts acrossmany different disciplines including corporate law, contract and commercial law, administrativelaw, constitutional law, property law, bankruptcy law, criminal law, food and drug law, land useplanning law, and international law.A distinctive aspect of environmental practice is the role of science in advocacy efforts.Many would-be environmental attorneys are intimidated by the field because of the perceptionthat it requires scientific expertise. While environmental lawyers often work alongside scientiststo achieve their goals, this collaboration allows scientists to concentrate on the science andlawyers to concentrate on the law. Most environmental practitioners agree that the key to thesuccessful practice of environmental law is the mastery of fundamental lawyering skills—negotiation, research, writing, and oral advocacy —important to the practice of law in any field.As Allan Kanner ’79 puts it, “Being an environmental attorney is all about simplifying.” Yourjob is to make sure that people who may be unfamiliar with environmental issues—juries,judges, regulators, legislators, corporate actors, and the public—understand and agree with yourargument.Environmental protection often creates unique litigation challenges. Public interestenvironmental attorneys’ traditional clients are government entities, community groups, andnonprofit organizations, although occasionally they represent nontraditional clients like wildlife,endangered species, ecosystems and natural landmarks. In addition to litigating traditionaldisputes involving direct personal injuries, they bring nontraditional cases: defending nature,asserting aesthetic values, and challenging the legitimacy of public policies. In these cases,environmental litigators can face jurisdictional hurdles. Because environmental plaintiffsfrequently claim that the defendant’s actions harm the public interest, courts may conclude thatthe plaintiff does not have standing. Plaintiffs in environmental cases often must provemootness, or that some action of the court could effectively deter the defendant from futureviolations. Environmental cases may be dismissed if the court believes that they are not “ripe,”meaning that the plaintiff has not yet suffered any demonstrable harm.Environmental attorneys also grapple with serious ethical questions. They must managethe tension between environmental protection and economic development. They protect not onlythe environment but also human interests by distributing environmental risks fairly, preventingjob loss, and ensuring access to natural resources. Since the scientific understanding ofenvironmental issues evolves rapidly, attorneys must make sure that the law keeps up – and mustbuild legal regimes from scratch to handle new environmental problems. For example,environmental attorneys are currently working to devise regulatory frameworks to enable carboncapture and sequestration. In energy law, attorneys are developing a system of liability to protectpeople and the environment from the risks of hydraulic fracturing, a natural gas extractionmethod. Lawyers are also crafting legal and financial frameworks to promote solutions toclimate change. Ultimately, attorneys must deal with what is perhaps the seminal environmentalchallenge of our time: asking society to pay “here and now” for benefits that will accrue “thereand then” to other parts of the world and future generations. They must convince politicians, thepublic, and the courts that environmental problems—which often have effects that are not readilyevident—are worth solving.5Environmental Trail Guide 2013

These are complicated, ongoing dilemmas, and environmental attorneys tackle themdaily. This guide offers a glimpse into the options available to a public interest environmentallaw practitioner. In the pages to follow, you will find a summary of issue areas and practicesettings in the field, information about environmental law opportunities at HLS, strategies forstarting a career, and insights from accomplished environmental lawyers. We hope that thisTrail Guide is a useful introduction to this fascinating area of legal practice.6Environmental Trail Guide 2013

1CONTENT AREASCHAPTERThere are many ways to categorize the different issues lawyers may tackle in the complex fieldof environmental law. This particular organization is designed to give you a sense of the shapeand breadth of the field, and is not meant to be exhaustive or authoritative. Because manyenvironmental offices practice in a variety of areas, the following content distinctions do notnecessarily correspond to discrete practice settings.POLLUTION CONTROLPollution laws prevent the contamination of air, water, and soil by hazardous substances. Inaddition to statutes at the state and local level, major federal pollution laws include: The Clean Air Act of 1967The National Environmental Policy Act of 1970The Clean Water Act of 1972At government agencies, lawyers develop and enforce these pollution laws. For example, in hiswork for the U.S. Department of Justice, Environment and Natural Resources Division, TomBenson ’04 has enforced the Clean Air Act by suing polluters. “As people are brought intocompliance with the law, they’ll pollute less, and that has a real impact on people’s lives,”Benson notes. In non-governmental settings, pollution control lawyers lobby legislatures, litigatecitizen suits, and challenge regulations in administrative courts.Currently, concerns about climate change drive the work of many pollution control lawyers. Forinstance, lawyers work to ban substances that damage the ozone layer. They advocate for thereduction of greenhouse gas emissions not only to protect air quality, but also to mitigate theeffects of global warming.NATURAL RESOURCES LAWNatural resource laws govern the extraction and use ofwater, minerals, oil, and timber; the protection ofwildlife and their habitats; and the use of public landslike national forests and parks. These laws preventthe misuse, overuse, and damage of resources. Atgovernment agencies, natural resources attorneyswrite regulations and make sure that developersfollow relevant statutes. Non-governmental lawyerslobby and litigate to lessen the environmental impactsof resource development.“As people are brought intocompliance with the law,they’ll pollute less, and thathas a real impact.”- Tom Benson ’04, Attorney, UnitedStates Department of Justice,Environment and Natural ResourcesDivisionSustainable development, a resource use strategy7Environmental Trail Guide 2013

designed to meet existing needs while saving for the future, is a current goal in the field ofnatural resources law. In other words, attorneys are working to craft natural resource laws withfuture generations in mind. Another significant issue in the field is the impact of technologicaladvances on resource production. Often, new extraction technologies have unknownenvironmental effects, making it difficult for lawyers to determine how best to litigate or updatethe law. James Gignac ’01, Environment and Energy Counsel at the Illinois Office of theAttorney General, clarifies, “Everyone is working on understanding [new natural resourceextraction methods] and how to properly manage their environmental impacts.”LAND USE LAWLand use laws limit the permissible uses of land. They define rules for zoning, city planning,and residential patterns. In the public interest, lawyers ensure that these laws protect natural orscenic resources and maintain biodiversity. Attorneys practicing in this field may work for stateand local governments enforcing local land use laws and defending permitting decisions; innonprofit organizations representing environmental interests in all stages of land use planning;and in private firms challenging permitting decisions or advising nonprofit and governmentdevelopers. In her position as Counsel to the Secretary of the Department of Interior, MollyMcUsic ’89 protected wilderness regions from mining, logging, and other development. “I waslucky to be at the forefront of a campaign to protect the American West. We established moremonuments and passed more land conservation legislation than any previous Administration,”McUsic explains.Up-and-coming issues in land use law include planning innovative and sustainable cities.Environmental lawyers support and advocate for city plans that consume less energy and releasefewer emissions.ENVIRONMENTAL JUSTICELow-income neighborhoods and communities of color are more likely to face environmentalrisks. Since the 1980s, environmental justice lawyers have worked to achieve a fairerdistribution of environmental burdens and benefits for these disadvantaged groups.Combining civil rights, social justice, and environmental concerns, public interest lawyers pursuetwo strategies to achieve environmental justice. First, they represent disadvantaged groups inenvironmental and toxic tort claims. On behalf of these groups, they sue the government or acompany engaged in harmful environmental practices. For example, as the Director of theEnvironmental Justice Program at New York Lawyers for the Public Interest, Gavin Kearneysued the City of New York to remove toxic light fixtures from inner-city schools. In doing so,“I had the opportunity to directly advance the health of these communities,” he remarks.Second, through community organizing and media campaigns, lawyers seek to empower peopleaffected by environmental hazards. Environmental justice attorneys argue that disadvantagedgroups ought to participate in the policy-making process. Nancy Marks ’83 of the NaturalResources Defense Council comments, “Working with communities on their issues is bothchallenging and rewarding. It takes a long time to establish deep ties and a trusting relationship.”8Environmental Trail Guide 2013

INTERNATIONAL ENVIRONMENTAL LAWMost environmental problems—like pollution, resource scarcity, and threats to biodiversity—arenot confined within national borders. Current issues of international concern include: ozonedepletion, oil spills, over-fishing, and air pollution from nuclear tests or accidents. There arealso extensive opportunities to deal with environmental concerns in emerging economies likeChina, Brazil, and India. International treaties, agreements, and negotiations work to solve theseglobal environmental problems. Some of the most significant international environmentalagreements include: The 1982 United Nations Convention on the Law of the SeaThe 1989 Montreal Protocol on Substances that Deplete the Ozone LayerThe 1989 Basel Convention on the Control of Transboundary Movements ofEnvironmental Waste and Their DisposalThe 1999 Kyoto Protocol to the United Nations Framework Convention on ClimateChangeThe 2009 Copenhagen Accord to the United Nations Framework Convention on ClimateChangeThese agreements were all achieved with the input of environmental lawyers who serve asrepresentatives of governments, international bodies, corporations, and nongovernmentalorganizations. Kristen Hite, for instance, served as a Senior Attorney in the Climate Program ofthe Center for International Environmental Law, where she worked to encourage the creation ofan international legal architecture to address climate change.Not only do environmental lawyers draft international laws, they also enforce them.International environmental lawyers participate in arbitration tribunals and help resolve disputesbetween states. Attorneys also make sure that international environmental agreements areimplemented as planned. One practicing international environmental attorney says,“Understanding the institutional bodies that run international environmental programs, includingthe World Bank and the World Trade Organization, is essential for those looking to enter myfield.”CLIMATE CHANGE“It’s a great time to be working on climate change,”says Kevin Reuther ’96. “There’s a certain urgencyto this issue.”The combustion of fossil fuels has changed theEarth’s temperature, precipitation, and ecosystems.Since the early 2000s, the scientific consensus aroundclimate change—the warming of the Earth’s climatesystem as a result of human activities—has inspired anew field of climate change law. Lawyers in this fieldmust adapt existing environmental regulatory regimes“It’s a great time to beworking on climate change.There’s a certain urgency tothis issue.”- Kevin Reuther ’96, LegalDirector, Minnesota Center forEnvironmental Advocacy9Environmental Trail Guide 2013

to changing climate conditions. They amend laws, rewrite regulations, or interpret statutes innew ways.Climate change lawyers also work to address the cause of climate change: greenhouse gasemissions. Designing legal tools to incentivize emissions reduction, like cap-and-trade programsor carbon taxes, is a current priority. Many climate change lawyers, like Dale Bryk ’93 of theNatural Resources Defense Council, support the development, regulation, permitting, andfinancing of new technologies to reduce emissions. In particular, Bryk creates policies thatencourage technological innovation. In As the Director of Investor Programs at Ceres,Christopher Davis ’80 mobilizes companies to invest in climate change technologies. “I doeconomic advocacy for better environmental policy,” Davis says. “Investor voices have highleverage on climate change issues.”ENERGY LAWEnergy law governs the use of electricity, gas, and oil, along with renewable energies likenuclear, solar, wind, water, and geothermal power. State and federal regulations define nearlyevery aspect of utility use. Since public utility companies maintain monopolies over the utilityindustry, they are highly regulated, explains David Littell ’92, the Commissioner of the MainePublic Utilities Commission.Government lawyers ensure that companies follow mandated price structures, permit rules, andemission standards. Abigail Burger Chingos ’09 of

law, constitutional law, property law, bankruptcy law, criminal law, food and drug law, land use planning law, and international law. A distinctive aspect of environmental practice is the role of science in advocacy efforts.