Environmental law is the way society regulates its impact on public health, safety, welfare and the natural world. It is a challenging and exciting area of law that has expanded exponentially over the last forty years of my private practice.
Though its roots can be traced back centuries, the modern environmental regulatory movement began in the late 1960s with laws dictating review of major government financed or permitted actions. It has evolved into a complex and sometimes disorganized force affecting virtually all aspects of everyday life, from lead paint and mold in homes to the existential threat of climate change.
In the 1970s, Congress and state legislatures enacted environmental laws to restrict air and water pollution, to promote safe management of solid waste (including hazardous waste), to ensure supplies of safe drinking water, to control use of pesticides and dangerous chemicals and to assess and cleanup uncontrolled spills of hazardous materials and oil. Protection of inland wetlands and coastal areas became priorities.
Government spending and taxation authority were deployed to promote conservation restrictions, historic preservation, development of infrastructure for pollution control and redevelopment of contaminated abandoned or underutilized sites.
Something so seemingly simple as an addition to a residence can now implicate conflicting federal, state and local requirements. Aboveground and underground storage tanks leak, causing soil and groundwater contamination and raising difficult issues of legal responsibility and insurance coverage. Legacies of industrialization may involve millions of dollars of assessment and cleanup.
Environmental law involves not only treaties, statutes and regulations, but also agency developed policies and guidance requiring nuanced interpretation. Judge made common law establishes new boundaries and requirements. How the law is determined and applied varies from state to state and from region to region. Staying current presents a serious challenge to regulated communities.
Effective representation of clients attempting to navigate the regulatory requirements often demands involvement of experts in areas ranging, by way of example, from insurance coverage archiving to hydrogeology, toxicology, geotechnical engineering and noise control. Experts themselves must keep up to date in often rapidly developing fields, such as newly discovered health impacts from the now much publicized “forever chemicals” commonly used in commercial applications and consumer products.
Potential liabilities for contamination influence virtually all real estate transactions, with prospective purchasers or lessees and their financing sources insisting on appropriately thorough assessment of properties before closing on leases, deeds and mortgages. Real estate and financing lawyers regularly consult skilled and experienced environmental lawyers for counsel on legal implications of contamination and extent of exposure to liability.
The immediate need for a commitment to replace fossil fuels has expanded environmental law into the development, siting, permitting and installation of alternative energy sources such as solar farms and wind turbines. Impacts from upgrading the grid infrastructure for energy delivery will continue to be subject to environmental review.
Transgressions of environmental requirements can lead to administrative penalties or judicial civil or criminal actions. Prioritization of environmental enforcement and severity of sanctions may change as the politics of administrations come and go, but violators of environmental laws generally find little sympathy from agency personnel, district attorneys, attorneys general or jurors. Capable legal counsel can assist regulated entities, whether industries, medical facilities, educational institutions, municipalities or even charitable organizations, in auditing their operations and maintaining compliance.
Solid waste facilities in Massachusetts require siting assignments from local municipal Boards of Health, which must hold public hearings on applications. A neutral party of appropriate expertise and experience must preside over these hearings. I have been asked and selected to serve as Presiding Officer over multiple hearings. It is a challenging role, and I have enjoyed the experience of service.
Environmental Justice is an increasingly significant issue in development and construction of major projects. Environmental Justice is based on recognition that economically challenged communities, often communities of color, have borne the brunt of environmental impacts from pollution generating installations and activities, ranging from fossil fuel facilities to crowded highways. Review of project proposals for compliance with Environmental Justice principles is now established federal and state public policy and, in Massachusetts, is be backed by the force of statutory law.