Environmental Policy Goals and Ethics by Yolanda Vanveen

Environmental Policy Goals and Ethics by Yolanda Vanveen
Posted April 22, 2015

What are the goals of environmental law?
 
The goals of environmental law are different depending on each group or person's role in the legal process. Government agencies, corporations, judges, lawyers, compliance officers and citizens each have different goals in environmental law depending on their position. Agencies and corporations that pollute and the politicians they sponsor want the least amount of expenses on environmental controls and "protection" from government interference. Lawyers and judges must be impartial and consider statutes and precedents only with no personal ethics involved. Government and nonprofit agencies as well as the United Nations Sustainable Development [1] have many specific goals in protecting the environment.

I believe the most important goal of environmental law should be funding environmental controls and making updates on failing systems. Insurance companies not Superfunds should pay for environmental expenses. We need a New Deal to update the dams and failing infrastructure created in the old New Deal that is causing the pollution.

The mission of the Environmental Protection Agency for example, [2] is representative of the goals of environmental law in theory which is to to protect human health and the environment. Environmental law should create systems so that citizens are protected from significant risks to human health and the environment where they live, learn and work; and these protections should be at a local, national and international levels to reduce environmental risk that is based on the best available scientific information; and should be enforced fairly and effectively.

In the textbook, Environmental Regulation, Law, Science and Policy, [3] author Robert Percival explains that environmental law should have two major goals:
1. Reforming the tools at hand, to make them stronger and more sufficient, and
2. Building structures, institutions and rules sufficent for the more transformative demands of problems like climate change.

Should environmental policy promote health, improve the quality of our natural environment for human benefit, or does humanity have some increased ethical duty toward nature?

Yes, environmental policy should promote health and we have a personal ethical duty toward nature. However, nature and saving humanity is a moral issue and not a legal ethical issue. The legal system relies on facts, laws and solutions. It must be separate from morals or ethics and concentrate on science, impartiality, statutes and precedents. Joseph Petulla [4] explained the challenge of adding values or ethics to the economic or legal process in American Environmentalism: "Values seem to arise from economic interests, yet many of the oldest and most deeply imbedded ones, like those prevalent for centuries in religious thought, enjoy an existence virtually independent of economic conditions."

Judges Can Only Judge
Judges can decide cases but they can't make laws. They have an ethical duty to follow statutes in place and interpret the policy, not create it. If Congress creates bills that allow exemptions for polluters, judges can't go against the laws even if they feel ethically and morally that the bill does not promote health and are against it personally. They must analyze the facts in front of them and decide accordingly. They must at the same time voluntarily follow the American Bar Association's Model Rules of Professional Conduct. [5]
 
This dichotomy is a constant in environmental law. The judges in Washington, DC are influenced by the current parties and environmental committee heads. They make decisions not based on precedent or statute which is a conflict of interest and against the Model Rules of Professional Conduct. They are not enforced. In theory the ABA can disbar a judge or a lawyer for not following fairness and impartiality rules, but in reality, it rarely happens.

Attorney-Client Privilege
Attorneys must separate their personal ethics and environmental values from their client's ethics. Like judges, they must concentrate on the facts presented by the client, statutes, precedents and solutions. There is no room for personal ethical judgment. The goal is to represent the client and to either have the case dismissed or sentenced with the minimum charges or fines.

Client and Attorney/Judge Ethics are Not the Same. 
Rule 1.2: (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. [5]
 
Attorney's personal ethics can not be considered in crimes against nature. It is the same concept with murder or assault charges. The lawyer must not see the client in a moral or ethical context. Even if a murderer admits to the crime, the lawyer still has an ethical responsibility to assist the client with the goal of minimum sentencing. If a client shares with his attorney his future plan to commit an environmental crime, the lawyer has an ethical duty to report the threatened crime to an agency. There are few environmental laws that are enforced so there are few requirements for reporting the environmental crimes.

Ideology, Impartiality and Ethics. 
Rule 3.5: Impartiality & Decorum. A lawyer shall not:(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law. [5] Lawyers and Judges it is assumed are not influenced. It would be unethical. So why then do the judges that decide most environmental cases vote against environmental regulations and give exemptions to corporations that violate Clean Air and Water Acts?
 
Humanity has a duty toward nature but it is separated from environmental law much as the separation of church and state. There are a different set of ethics, however, in the law profession that are monitored by the Model Rules of Professional Conduct. The nature of law is addressed but it is very different from the protection of nature, "In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living."

Ethically there should be regulation and systems in place so all citizens are protected from significant risks to human health and the environment where they live, learn and work. Unfortunately the ethics of the legal system as provided by the ABA do not protect the environment. The clients that are responsible for the pollution are protected through attorney client privilege. Legal expenses for winning toxic torts and regulatory fines that allow corporations to continue to pollute are just a cost of doing business. No ethics are involved in the bottom line.

There is hope. The United Nations Environment Programme's Green Economy Report [6] demonstrates that green economies are a new engine of growth, generate decent jobs and are vital to eliminating persistent poverty, "In a transition to a green economy, new jobs will be created, which over time exceed the losses in "brown economy" jobs, particularly in the agriculture, buildings, energy, forestry and transport sectors. The move towards a green economy is happening on a scale and at a speed never seen before." It is my hope that green energy corporations and "saving the planet" ethics will replace "protect the polluter through client privilege" ethics in environmental law goals.
 
[1] http://www.un.org/en/sustainablefuture/about.shtml
[2] EPA's Mission: http://www2.epa.gov/aboutepa/our-mission-and-what-we-do
[3] Robert V. Percival, Christopher H. Schroeder, et. al. Environmental Regulation: Law, Science, and Policy, (Aspen, 2013-2014, 7th ed.) p. 2
[4] American Environmentalism 3 (1980). Joseph Petulla as quoted in textbook, Robert V. Percival, Christopher H. Schroeder, et. al. Environmental Regulation: Law, Science, and Policy, (Aspen, 2013-2014, 7th ed.) p. 1
[5] Model Rules of Professional Conduct, American Bar Association
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html
[6] http://www.un.org/en/sustainablefuture/about.shtml

The sponsors of scientific studies do not always have the best interest of nature in mind and therefore many precedents are built on "faulty premises."
 
Environmentalism comprises a mix of value systems, beliefs, and perspectives, and draws on a complex of historical, philosophical, and religious traditions. [1] Environmental law and intellectual law are two areas where there are few precedents. This is an area where legal ethics and science determine cases.
 
When there is no precedent, it is hoped that the judge and courts will determine the outcome based on fairness, social values and customs, policy, data and concepts drawn from the social sciences but this isn't always the case.

There must be facts. Where a lawyer cannot find a binding precedent, he or she may form a legal argument from first principles. This approach identifies legal principles from decided cases and argues that while the factual circumstances of the cases may appear different, analytically they are the same. This kind of legal argument is often used with respect to determining the measure of damages.
First Impression (known as primae impressionis in Latin) is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction. In that situation, courts will look to holdings of other jurisdictions for persuasive authority. Since the legal issue under consideration has never been decided by an appeals court and, therefore, there is no precedent for the court to follow, the court uses analogies from prior rulings by appeals courts, refers to commentaries and articles by legal scholars, and applies its own logic. In cases of first impression, the trial judge will often ask both sides' attorneys for legal briefs. [2]

The original goals of environmental law are forgotten when precedents give exemptions to polluters and block environmental controls. The current system does not allow for environmentalism in many cases. This advice from Lord Denning, [3] holds true today:

"If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice." Lord Denning, the former Master of the Rolls

[1] Robert V. Percival, Christopher H. Schroeder, et. al. Environmental Regulation: Law, Science, and Policy, (Aspen, 2013-2014, 7th ed.) p. 8
[2] The Rt. Hon. Lord Denning, The Discipline of the Law (London: Butterworths, 1979) at 285-314
[3] http://legalresearch.org/writing-analysis/stare-decisis-techniques/