Environmental Law 101: Civility Costs Nothing, But Buys Everything.

I borrowed the title for this post from English writer Mary Wortley Montagu because it expresses
my personal philosophy. [I don’t like “ideologies” because they require you to surrender your
thought process and to accept predetermined outcomes; they constitute “group think.” Far better
that personal philosophies guide our conduct.] In this case, Montagu’s quote reminded me of a law
school experience during which one of my professors, a brilliant teacher, asked: “Who is right—
Prosser (the writer of a text book used by all law schools) or the Supreme Court?” When nobody
responded, he asked the same question again. Same result. So he gave us the answer: “I am.” I
admired his conviction, but I’ve found over time that merely being right doesn’t determine whether
you get what you want out of a regulatory agency.

Success in an environmental matter is dependent on the three-step process described previously—
defining goals, planning strategically and focusing on outcome. In only two cases over forty years
have I encountered what I would consider malevolence or bad faith in a regulatory agency. That
is not to say that I haven’t experienced lots of frustration and the full range of human motivations
and capabilities. But I am talking about bad faith and misconduct. If you represent business on
environmental issues, you aren’t going to be loved—so you have to settle for being respected. Or as
a wag once said: “If you can’t stand the heat, get out of the kitchen.”

There is a general impression that people who work for the government are incompetent and lazy.
I don’t believe that; at least not for the vast share of public servants (keeping in mind that we are
talking about military personnel, police and fire services, park rangers, teachers, and an entire
range of people charged with protecting us from harm or keeping life as we know it going). My
opinion is also influenced by the two years that I spent on the Board of Scientific Counselors for
the Agency for Toxic Substances and Disease Registry (the name given to the Centers for Disease
Control when performing its duties under the federal Superfund law). We held our meetings on
the campus where Ebola and small pox viruses are located and where the CDC performs constant
surveillance of cases being reported to public health institutions all over the country as part of
an early warning system in the event of a biologic attack. These people are dedicated public
servants—and they are brilliant. The work that they do is largely unnoted (which, perhaps, is good
because the CDC has visibility only when there is some major health crisis). If they were motivated
by income, they (and their colleagues in the Public Health Service) would not be working for us as
public servants.

All of this is to say that, whereas the “system” is imperfect, it “is what it is” and we have to deal
with it in order to get what we want. Every big project, whether it is a mine, a pipeline or a major
development, will require time, patience and expertise. I’ve been asked many times how we can
achieve a particular goal. I’ve always counseled that: “You get out of the government precisely
what you convince the government to give to you.” You cannot mug a regulatory agency. I have
found that, in general, a regulatory agency appreciates and is, eventually, influenced by expertise,
candor, professionalism—and civility. You can be as assertive as you want as long as you are
professional and civil.

In short, define success, think strategically and focus on outcome. Ignore feelings about the
agency (or prosecutor). They have a job to do; you need to concentrate on doing your job.
Represent yourself well, stress facts, accentuate the positive, be relentless, be assertive, be
persistent, be professional—and be civil. If you do, in the end you will get what you want.