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  • May 11, 2022

    Help Clients with Environmental Issues by Using the Tools of Our Trade

    Environmental issues are inherently messy, and involve words often scary to lawyers: Biology. Chemistry. Organic Chemistry. When a client asks for help with an environmental issue, how do you process that inherent mess with legal theory? Bartlett Durand offers this idea: think back to law school and refresh your “issue spotting” skills – because solutions may come from tort, regulation, property law, nuisance, or simple mediation.

    Bartlett Durand

    I spend my weeks surrounded by engineers working in wastewater plants. And I work with regulators trying to find the right numbers or standards to ensure we have “clean” water.

    Both are tied by regulations and laws that demand strict compliance, and are used to “industrial” solutions – measuring end of pipe levels of nutrients and pollutants to confirm those numbers are below established thresholds.

    If a number is off, you turn a wheel or add some chemical based on a formula, and then you retest. It is based on chemistry with a biological process underlying most of the treatment, and is fairly comforting that results can be measured and absolute.

    But the benefit is, arguably, marginal. In our watersheds we are seeing greater nutrient pollution (which is often seen as harmful algae blooms and certainly in the Gulf Hypoxic Zone – currently about 6,300 square miles of biological deserts due to lack of dissolved oxygen needed to support aquatic life). Most of the nutrient pollution comes from large cities with older wastewater plants, and from our agriculture system of the last century.

    I encourage cities in this Mississippi River watershed, especially in the upper Midwest, to work with agriculture to reduce nutrients running off the farm fields. In essence, to pay or encourage farmers to reduce, manage, or mitigate fertilizer used for crop production.

    The general concept makes sense – it is, in essence, a microtrading program between cities and nearby farmers. In Wisconsin, we use the outline quite a bit, with Madison, Milwaukee, and Green Bay all engaged in extensive watershed work.

    Bartlett Durand Bartlett Durand, Richardson School of Law (Hawaii) 2002, is an attorney with the Sand County Foundation, Middleton, creating partnerships between municipalities and farmers to improve water quality.

    Quantitative versus Qualitative

    But it is difficult to get everyone speaking the same language. The engineers, regulators, and the lawyers who serve them think in terms of chemistry, and monitoring, and numeric, quantitative results. The farmers, watershed coordinators, and holistic water quality proponents think in terms of biology, and modeling, and narrative, qualitative improvement.

    My job is to translate the language and approaches, and provide comfort to the regulators and regulated that the true goal – better water quality – is being met. It takes a lot of trust on both sides, and an assumption of good will, but once everyone is working together there is the opportunity for tremendous improvement.

    What has been interesting to me in this, though, is that some of the strongest opponents to the approach comes from the environmental litigation community. Like the regulators or the engineers, litigation attorneys look to hard and fast numbers as the baseline, something they can point to as met or not met. Using narrative standards or anything “soft” is very difficult to challenge in court.

    If you or your clients are nonprofits, there isn’t that much money to pay for legal challenges built on anything other than a slam dunk legal theory.

    Experience as Confining

    From these experiences, I realized that we lawyers are often as boxed in as the engineers and regulators. We have a tool, and we try to use that tool. But what happens when a problem is too messy for a single tool? How do we approach finding a solution?

    In my work, I run into a lot of folks with lake homes. Invariable there are questions about water level, or dam removal, or water quality, or habitat (restoration or loss), or nutrient pollution, or high-capacity wells, or neighbors encroaching on land, or high water levels, or power boats versus no wake lakes, or lake associations, or … something else.

    The list is dizzying, and the possible ways to address conflict include numerous legal theories.

    Practice Brainstorming at the Annual Meeting & Conference

    With so many potential pathways available to address conflicts in this setting, the Environmental Law section offered to put on a different sort of CLE session at the State Bar of Wisconsin Annual Meeting & Conference. We want to remind everyone of the old law school game “spot the issue,” using the messy lakehouse dispute as the focus.

    Whether you are engaged in potential environmental law or just wonder about how do you start to untangle a messy, multifaceted dispute, we encourage you to attend (here's where to register). We will address all the possible areas of law that enter into an environmental, place-based dispute, and try to give ideas on how an attorney can proceed in helping a client.

    We won’t promise an absolute answer, but we do promise a good time.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.

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    Environmental Law Blog is published by the State Bar of Wisconsin. To contribute to this blog, contact Gabe Johnson-Karp and review Author Submission Guidelines. Learn more about the Environmental Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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