Environmental Law 101: Focus on Outcome; Everything Else is a Distraction.

Legendary Coach Vince Lombardi once said: “Success demands singleness of purpose.” In a complex permitting matter or an enforcement matter, you have to stay focused on the outcome. Everything else is a distraction from accomplishing the objective you have defined as “success.” What stands in the way? Several things.

Business generally do not like dealing with government. It also generally doesn’t understand how it functions. I remember one of my clients, a huge, sophisticated energy company, hiring a member of the legislative staff to become part of its public affairs department. When I asked why, I was told: “We are engineers. There is nobody here who understands how government works. We need to bring someone in from the outside that does.” Conversely, regulators do not have MBAs. They don’t understand the concept of “certainty” or that “time is money.” And, of course, environmental groups are as suspicious of business as business is of them.

Having said the above, the key to success in a complex environmental permitting or enforcement matter is to focus on outcome and to have a “singleness of purpose” dedicated to that objective. Political ideology and economic philosophy are distractions.

Complex permitting and enforcement matters are not commercial negotiations; leverage either doesn’t exist or is severely diluted. Becoming frustrated because this is the reality is a distraction.

Determining the intent of the adverse party is a legitimate exercise. Outreach is a routine process in zoning matters; it should be a routine matter in permitting and enforcement matters. It makes achieving your desired outcome more likely because you are not distracted by what you “think” the other side intends.

In a prosecution, the government has the burden to proceed. In a permitting matter, the applicant has the burden to proceed and should do so assertively, but in a way so that it does not alienate the regulatory agency. Steve Wozniak, in his book iWox, writes that: “Patience is so underrated.” Patience is a strategic strength; you should not let impatience, and the typical business ethos of “getting things done yesterday,” become a distraction for you.

Dysfunctional defense teams can also become a distraction. Several years ago, a client had the opportunity to settle a huge, complex enforcement matter for a $3 million penalty. There was no scenario under which the cost of the case was going to be less than that amount. The opportunity, however, was lost based on furious opposition by former EPA functionaries who were part of the defense team. It is generally, albeit inaccurately, assumed that such people have some sort of fairy-dust influence over their former colleagues. In this matter, the case was ultimately settled for something like $35 million (after substantial additional transactional costs were incurred). A clear opportunity for “success” was lost because of an illusion that a better result could be achieved. The cost, in this case, of becoming distracted was $30 million.

In short: Concentrate myopically on the outcome–what you “need” from the negotiation. Leave your biases aside. Avoid distractions. Manage the defense team; and maintain “singleness of purpose.”