When Every Day Is Earth Day

These four lawyers spend their lives toiling to keep a righteous balance between the needs of the environment and the demands of business and government

Published in 2010 Southern California Super Lawyers — February 2010

Defending Whales

When we’re finally able to speak with whales and dolphins, their first words may well be to thank Joel Reynolds

Joel Reynolds has worked on poverty and environmental justice issues for three decades, but he’s best known for protecting whales.

He joined the Natural Resources Defense Council in 1990, and in 1994 he brought a case challenging a proposed Navy underwater explosives program near a marine mammal sanctuary. He learned that the noise could have detrimental effects on the animals and began to investigate.

In the ocean, Reynolds says, “Everything has evolved over eons to rely on sound the way that we rely on sight.” So the Navy’s active sonar system, which generates sound to track submarines underwater, can have unintended consequences for marine animals.

“Some of these extraordinarily loud underwater sounds are more like a physical force than what we understand as sound,” Reynolds says. Whales have sometimes died in areas where the Navy has used high-intensity sonar. Furthermore, many marine species rely on sound to communicate and receive information, so noise pollution can interfere with critical behaviors like feeding and migrating.

“We found that the Navy was deploying sonar technology without any environmental compliance,” Reynolds says. “No environmental impact statements, no permits—completely outside the law.”

Reynolds has brought several lawsuits challenging these training exercises. In most cases he’s managed to reach a settlement with the Navy following the entrance of a court order, usually involving some kind of mitigation strategy. For example, the Navy has now agreed to avoid sensitive areas (such as breeding and feeding areas) during key times and check for nearby marine life before starting and during its tests.

The U.S. Supreme Court recently overturned some of the safeguard requirements at issue in Winter v. Natural Resources Defense Council, but Reynolds says the decision won’t impact other similar cases. “The issue still remains a live one,” he says. “The Supreme Court’s decision was very much based on the facts of the case.”

He is careful to emphasize that the lawsuits aren’t about military actions during wartime but only training exercises. “We’re not trying to stop them from preparing for our national defense, but we are trying to force them to train with this technology in a more environmentally responsible way,” he says. “It’s not a choice between environmental compliance and national security; the law requires that we have both.”

 

Present at the Creation

Les Lo Baugh wrote the first drafts of every important environmental law in modern U.S. history

You may never have heard of Les Lo Baugh, but you’ve heard of his legislation. He wrote the first drafts of the Endangered Species Act, the Clean Air Act and the Clean Water Act—just to name a few.

He was only 23 when he drafted the Endangered Species Act, which became law in 1973. As part of the Georgetown team that placed first in the National Moot Court Competition while in law school at Georgetown, he earned an invitation to meet Sen. Alan Cranston for a photo op. Lo Baugh was paging through a book on endangered species of birds when Cranston came up behind him and commented that he looked upset.

“He said to me, ‘When you feel strongly about something, I think you have an obligation to do something about it.’ And I said, ‘Well, I’m just a law student; I can’t do anything about it.’ And he said, ‘Well, I’m just one senator in 100.’”

Not long afterward, Cranston contacted Lo Baugh and invited him to draft a law protecting endangered species. Lo Baugh became Cranston’s legislative aide.

“He was like another father figure for me,” Lo Baugh says. “He was very Lincoln-esque.”

Lo Baugh went on to become a partner at Fulbright & Jaworski, where he now heads the West Coast environmental practice group. He’s helped local governments draft ordinances around Leadership in Energy and Environmental Design (LEED) certification and other issues, and he’s represented developers on many of the largest LEED projects in the country.

For huge building developments, he says, “There tends to be a complex series of relationships, and to maximize the chances that the project will ultimately be certified, it’s important to get all of the contracts lined up.”

He also helps major corporations work on their environmental policies, which to him marks a positive change from the 1980s. Back then, he says, environmentalism was divisive. “It became us versus them, nature and animals versus people. Now we’re at the place we hoped to be 30 years ago, where people see that our fate is intertwined with the environment.”

 

Human Beings Come First

Greg Wilkinson fights for the environment ... by fighting environmentalists

Greg Wilkinson went to law school with one clear vision in sight. “I wanted to change the world,” he says. “I was part of the ’60s generation.”

Now deep into his career, Wilkinson, who specializes in water law and endangered species law, and who founded the natural resources practice group at Best Best & Krieger, is still working to achieve that goal. “My practice is probably as much endangered species law as it is water law,” he says.

But he’s not usually representing the environmentalists. He represents water users and public agencies that supply water—often fighting against restrictions imposed by environmental laws.

In 1997, he successfully argued before the U.S. Supreme Court in Bennett v. Spear that those facing negative economic impacts from the Endangered Species Act have standing to sue.

“What I’ve seen, unfortunately, is that the word ‘reasonable’ has kind of been written out of some of the environmental statutes,” he says. He wants to protect fish and wildlife, but he also wants to make sure humans can access the water they need. “It’s a constant balancing process.”

In fact, he says, stringent protection has unintended environmental consequences. When farmers can’t get enough water from outside, for example, they deplete the ground water, “which can actually cause the ground to collapse.”

Before joining Best Best & Krieger, Wilkinson worked for the United Nations Food and Agriculture Organization, which he describes as “lawyers without borders.” “It’s one of the few U.N. agencies that actually sends lawyers out into the field to work with developing countries.” He wound up drafting water policy throughout Africa and Southeast Asia.

In 2001, he even helped rewrite Namibia’s water laws, putting an end to a system that favored white farmers.

He says he’s proud of his work and believes it’s important. “I don’t think you can do this work and do it well unless you’re passionate about it. In fact, I don’t think you can be a good lawyer without being passionate about it.”

 

The Skeptic

Lawrence Riff believes that junk science is no way to fight for the environment

Lawrence Riff considers himself “intimately involved in environmental law,” but he’s not on the side that makes him popular with environmentalists. He leads the toxic tort practice group at Steptoe & Johnson, representing clients like ExxonMobil, Shell, Chevron and Monsanto Co.

Even friends and family ask him how he can represent big oil companies. “I’ve given the matter a lot of thought,” Riff says.

But he draws a distinction between acute exposure to chemicals and chronic exposure. “If you smoke a cigarette, you’re not going to get lung cancer from it,” he says. “If you smoke three packs a day for 30 years, you might. It’s the same concept.”

Acute exposure can truly harm people, he says, but those aren’t the cases he deals with.

“In the cases I’m involved with, someone is exposed for a long period of time to a very low dose of some chemical substance, and the claim is that that low-dose exposure has hurt them. I examine the science behind that claim.”

His scientific analysis invariably leads him to the same conclusion. On whether there are authentic cases of poisoning from chronic exposure to low doses of toxins, Riff says, “almost never, in my opinion.”

He likes the inherent tension in toxic tort cases, he says. On the one hand, jurors recognize that our modern way of life is reliant on a wide array of chemical products. On the other, people have a fundamental distrust of those products. “It’s that tension that makes the toxic tort practice in the trial court in front of juries so challenging and, frankly, exhilarating,” he says.

He says that when he begins a trial, the odds are stacked against him—he’s representing major corporations against sympathetic plaintiffs who are often visibly sick.

But when the jury hears the facts, he says, they often come to a different conclusion. “All I ask of a jury—and my friends and family—is, please decide the question based on science and common sense, not prejudice.”

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