Environmental Law 101: Three Step Approach to Get What You Need.

Business does not like government; and it does not like regulation. The fact is that government exists, government regulates and business needs to interface with government in order to get what it wants.

Over a forty year career, I’ve learned that you will get out of government what you convince the government to give to you. Based on my experience, I can summarize a successful approach to getting what you want as follows:

Step 1. Define Your Objectives.

In South Pacific, Bloody Mary sings: “If you don’t have a dream, if you don’t have a dream, how ya’ going to have a dream come true.” That is not only romantic, but also true. In preparing for negotiations, you need to know what outcome you are seeking. You need to distinguish between what you “want” as compared to what you “need.” Wish lists are great for Christmas, but you have to determine, up front, in a strategic hard-headed fashion, whether you can get what you need so that you can plan how to get it. And, by the way, while you are at it, you should also be defining what your adversary needs–regardless of the “wants” it may identify in negotiations. Advance planning is about defining success—so that you can say “yes” when you have the opportunity.

Step 2. Think Strategically.

I’ve learned the need to be humble about every environmental enforcement case and every complex permitting matter. The facts are always challenging; they are never as good as you want. But that is no reason to throw up your hands and despair. Understand: There is no such thing as a perfect set of facts. But facts, in my opinion, determine strategy. You may put your best spin on the facts in public, but privately you have to brutally face the facts and soberly evaluate your options with counsel and consultants. You need someone to tell you the truth. You also need a lawyer who can help you evaluate the technical issues you are confronting.

Step 3. Focus on Outcome.

I can assure you that you will not like the process or the people with whom you deal. That is precisely the reason why you need to define success, think strategically and, last of all, focus intensely on outcome. You are not in a commercial negotiation; the concept of “leverage” either does not exist or is severely diluted. All energy must be devoted to achieving your desired outcome without regard to emotion, passion, political ideology, economic philosophy or any other distracting factor.

Future posts will discuss these three concepts in greater depth. I will also discuss a number of other issues that I feel are important to dealing with environmental issues successfully. But the core of success will always come back to this trilogy of principles—defining success, thinking strategically and focusing on outcome.