Environmental Law 101: Fatal Mistakes — From the Challenger Disaster to British Petroleum’s Deepwater Horizon Catastrophe to Freedom Industry’s Elk River Mess.

I have learned from 45 years of practicing environmental law that managers who otherwise excel in their jobs are not necessarily good at making decisions relating to how to deal with environmental crises–and with the press, the public and regulators.  They, also, aren’t very good at avoiding crises in the first place—for a whole variety of reasons including complacency or having too much faith in technology.

Robert Mittelstaedt, Jr., the former Dean of the W.C. Cary School of Business at Arizona State University, wrote a fascinating book entitled:  “Will your Next Mistake be Fatal?  Avoiding the Chain of Mistakes That Can Destroy Your Organization.”  His thesis is that rarely does a catastrophe result from a single mistake; rather, it typically results from a series of compounding mistakes which, by the time the full consequence of their synergy is discovered, it is too late to avoid the disaster.

Mittelstaedt discusses his philosophy of M3—Managing Multiple Mistakes.  He states:  “It has long been known that most man-made physical disasters are the result of a series of mistakes.  In most cases, if a way can be found to ‘break the chain,’ a major catastrophe can be avoided.”   He emphasizes that mistakes can result from defective strategy, bad execution, business culture, technology or a myriad of other factors.  He uses as case examples the Titanic, Three Mile Island and NASA’s policy to “launch unless proven unsafe” that led to the loss of the space shuttle Challenger.

Other examples, however, are numerous.  Consider the recent discharge by Freedom Industries into the Elk River in West Virginia (when the drinking water supply of tens of thousands of people was impaired) and the Deepwater Horizon disaster (or, for that matter, the 9/11 attack or Pearl Harbor).  In every instance, there was evidence indicating a threat, but the chain of mistakes was neither broken nor managed.  This is uniformly the case with environmental catastrophes; they are almost universally never intentional, but they are avoidable.

Companies too often develop elaborate environmental management systems, but never implement them at the plant level.  Impressive emergency planning and community right-to-know reports are prepared by consultants, but never updated and, as a result, they refer to incorrect buildings, chemicals, management personnel and procedures.  Maintenance is ignored or given a low priority.

I have observed all of these situations; I’ve also observed, and previously written about, a client that prided itself on investing in its plant and in worker safety.  The COO told a group of the company’s lawyers from around the world:  “If our plants operate and our workers don’t get hurt, we make money.”

In every complex matter, decisions have to be made or nothing will ever get done.  Decisions have to be made on the information available, on assumptions and on past experience.  Errors are going to be made; it is inherent in the process.   Decisions are never perfect.  Knowing that, it is critical, as the process goes along, to identify the errors, adjust your assumptions and make corrections.  The thought process is consistent with the environmental management philosophy of “continuous improvement.”

Sometimes the biggest advances are made as a result of the most basic decisions—such as using best management practices when specific criteria do not exist; or such as applying sustainability practices because you know, intuitively, that this will lead to cost savings either in the materials purchased or the cost of waste disposal after the manufacturing process is completed.  Under all circumstances, facilities need to be constantly maintained, workers need to be constantly trained and emergency planning reports much constantly be updated.  In the case of the Elk River discharge, a million dollars of deferred (although planned) maintenance on containment walls around 17 above ground storage tanks led to an unnecessary disaster that will cost the company hundreds of millions of dollars—and, in fact, has already led to Freedom Industries filing for bankruptcy.  Call it what you will (incompetence, negligence, stupidity or malfeasance), it comes at a price.

Lawyers are commonly looked upon as pests and, in generally, either unnecessary or not to be tolerated.  The fact is that a lawyer has a very important role to play—in challenging assumptions; in helping to reason through a strategy for permitting a complex project or resolving a complex law suit; or in conducting compliance audits.  A lawyer can act as a “forward air observer” who looks at future risks and ways to avoid them.  These issues are not subject to precise, mathematical solutions; they involve working with people and problem solving.  They require dealing with successful, but, sometimes, overly aggressive clients whose confidence overrides caution.  That’s what lawyers do; at least that’s what they should do.  Unfortunately, most commonly, environmental lawyers get asked to deal with Humpty Dumpty after he falls—and they are asked to do what all the king’s horses and all the king’s men can’t do.  The best approach is to make sure that Humpty Dumpty doesn’t fall in the first place.  Preventing tragedies is less costly than cleaning up their consequences.