What Is Environmental Law?
Understanding regulation at both the federal and state levels
on April 25, 2022
Updated on February 3, 2023
Many state and federal regulations limit what businesses can do, and anyone who violates one of these regulations could face an investigation by a governmental agency. This is where an environmental lawyer comes in. An attorney can defend you in regulatory or administrative proceedings, or even in a federal or state lawsuit. Penalties for violations are often very steep.
The costs to defend against an investigation are also very high, so businesses should do everything in their power to comply with regulations in the first place. An environmental lawyer is a trusted advisor who can draft contracts and perform due diligence in a way that protects you from environmental risks, which increases the value of your business.
Environmental Law – What You Need To Know
- Lawmakers have passed state and federal environmental legislation to regulate big business and its effects on the environment, zeroing in on climate change, preservation of natural environments, sustainability in the consumption of natural resources, and human health.
- The Environmental Protection Agency (EPA) and other agencies investigate and penalize companies for violations.
- Business administrators that violate state and federal environmental regulations are subject to heavy penalties such as fines and criminal prosecution.
- Business owners and administrators often turn to attorneys with significant legal experience studying and litigating environmental law regulation and cases.
An Overview of Environmental Law
Legislators have enacted several laws in decades previous to counteract environmental damage inflicted by business. These regulations, enforced by state and federal agencies, are designed to promote environmental health by:
- Increasing biodiversity and protecting biodiverse habitats
- Decreasing environmental pollution through waste management and waste disposal programs
- Limiting air pollution
- Sustaining drinking water quality and limiting water pollution
- Curbing the effects of climate change
Some federal laws your business must comply with include:
- Clean Air Act. The EPA enforces this law, which regulates air quality and emissions.
- Clean Water Act. Congress passed this law to make it illegal to control the release of pollutants into waterways. Some discharge is unavoidable, so the Clean Water Act gives the government power to issue permits. Citizens can bring lawsuits under the Clean Water Act for any violation.
- Superfund Law. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly called the “Superfund Law,” gives the federal government the power to respond to threatened or actual chemical or hazardous waste releases. It created a trust fund to pay for cleanup of toxic sites, called “remediation.” And the law imposes liability on prior and current owners, along with other parties. Businesses that buy contaminated property could be on the hook for tens of millions of dollars in remediation costs.
- Endangered Species Act. Congress passed this law to protect species threatened with extinction. The law has frustrated many development plans because they might impact an endangered animal or plant. The law authorizes members of the public to file lawsuits to stop any activity which endangers listed species.
- Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Congress passed FIFRA in 1972 to prohibit sale and use of certain pesticides. Companies that want to use them must register and obtain certification.
- The National Environmental Policy Act (NEPA). Passed in 1969, this law requires that the government always consider the environmental effects of its activity. Most government projects require an Environmental Impact Statement.
- Toxic Substances Control Act. Toxic chemicals endanger public health, and the government passed this law to regulate chemicals before they reach consumers.
- State and local laws. States as well as local governments can supplement federal laws, and many of them have through environmental and land use laws. Any business will need to comply with state regulations as well and could face investigation and/or sanctions for violations.
The above laws are only some of the most important that businesses must keep their eye on. There are dozens of others, which an environmental attorney can help you understand.
Permitting & Environmental Compliance
Environmental regulations are constantly shifting, with each new Presidential administration focusing on different areas of concern. The risk of litigation is high, and companies should do everything in their power to obtain necessary permits and comply with regulations as part of their daily operations.
An environmental attorney can shepherd clients through the confusing permitting process, gathering necessary information and making a public presentation, where necessary, to secure approval for a project. Many snags can crop up in the permitting process, so hiring an experienced attorney is essential.
Just as environmental regulations have grown more complex, in-house compliance programs must increase in sophistication. An environmental attorney can help create and implement compliance programs which can prevent regulatory violations. A solid compliance program also highlights a company’s good faith in trying to adhere to regulations—a key consideration if you face an investigation.
Environmental Agency Enforcement (EPA)
The EPA and other agencies investigate and penalize companies for violations. They can assess civil fines or criminal penalties, so legal assistance is absolutely necessary. Although civil liability will not send you to prison, these penalties are so severe that your business could suffer severe harm.
An environmental attorney can perform an in-house investigation and represent you before regulatory agencies. Many investigations are paper-intensive and require invasive document search and collection. An attorney should review all evidence before turning it over to an agency.
Advanced technologies have changed the investigatory process. Pollutant monitoring systems can reduce toxic release but also make it easier for agencies to catch your violations. The EPA can inspect your company, request information, and review records. An experienced environmental attorney can protect your rights.
Criminal prosecution is also a real possibility. The EPA and the Department of Justice coordinate with each other on investigation and prosecution. They also can work with state agencies and prosecutors. Criminal prosecutions focus on companies and individuals in an organization who possibly approved or covered up environmental crimes. An environmental attorney can defend against regulatory investigations and criminal prosecution.
Real Estate Transactions & Environmental Risks
Companies must manage risks when purchasing or selling land. Any contamination could delay or completely frustrate a construction project and raise the costs of doing business. An environmental lawyer can assist with structuring deals and performing due diligence to protect you financially in the event an environmental problem arises. An attorney can assist by:
- Structuring deals to limit the client’s liability and increase the value of the transaction.
- Sourcing environmental insurance products to mitigate any unforeseen risks.
- Negotiating with governmental agencies for financial assistance with investigation and cleanup.
- Addressing environmental problems before going to market to minimize the disruption of a deal.
- Helping buyer’s assess environmental risk and negotiating warranties and indemnities for cleanup.
- Managing due diligence for wetlands or NEPA studies.
- Requesting government approval for a project.
The risk of an unforeseen contamination or other environmental problem is so high that spending money for an attorney is well worth it.
Environmental & Toxic Tort Litigation
Toxic tort litigation can easily balloon out of control and result in mammoth class actions which can put a strain on any company, even those which are well insured. An environmental lawyer can handle complex litigation in federal or state forums. Clients need efficient representation which never forgets the costs of the litigation on a company’s balance sheet.
An environmental attorney can assist with all phases of litigation, including pre-trial discovery, evidentiary motions, and negotiations. Some environmental and toxic tort disputes end up in alternative dispute forums, such as arbitration. Clients benefit from experienced legal counsel which can propose creative solutions to bring the dispute to an end.
Litigation arises under major federal statutes such as the Clean Air Act or Clean Water Act. Other disputes arise under state nuisance and product liability law. Even small cases represent potentially millions of dollars in damages.
Reputation Management & the Environment
Many companies tout their reputation as environmentally conscious. One lawsuit or agency investigation could destroy that image—possibly permanently. Managing a company’s reputation often begins with an internal investigation to uncover the scope of any violations before government regulators even arrive on the scene. Businesses can then undertake mitigation efforts to protect their reputation and show to the EPA that they take environmental compliance seriously.
If you are searching for an environmental attorney, you should ask questions to fully understand whether the lawyer can help you with your environmental issue. Some questions you might ask include:
- How much experience do you have in this field?
- Can you represent me in a regulatory investigation?
- What kinds of sanctions is my company facing? What sanctions could I face personally?
- How can an environmental attorney add value to this transaction?
- Do you represent my company or me as an individual? Will I need to hire a personal attorney if the EPA alleges I’ve violated the law?
Finding the Right Attorney for Your Needs
It is essential to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for a lawyer who practices environmental law.
Why Super Lawyers?
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations, and peer evaluations. The objective is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
As Super Lawyers is intended to be used to select a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.