Becoming an Environmental Attorney
I recently helped evaluate the always-awesome high school mock trial teams in the ISBA-sponsored program held at the University of Illinois Springfield. After each trial, evaluators and judges have a brief period to introduce themselves and their practice areas, mine being semi-retired in environmental and energy law, whereupon students often approach us to discuss our comments. This year I was approached by students from three different teams for any comments or advice on becoming an environmental lawyer. Since we have limited time between trials, I only had time to suggest studying the sciences, since environmental law is grounded in science. This is written to expand upon my advice and more, whatever my personal experience may be worth, for those considering a career in environmental law.
No specific degree is required for admission into law school. The ISBA publishes a brochure on careers in the law, which confirms that law schools do not require any particular undergraduate degree for admission. And while it is axiomatic that lawyers often must educate themselves on the particulars of a client’s case, understanding the elements of a client’s environmental case is likely easier if your education includes the sciences.
Science in Natural Resource Law
Rachel Carson’s Silent Spring, published in 1962, is often acknowledged as a forerunner to the environmental movement. Carson generally warned of the dangers of pesticides to the environment, especially of “dichloro-diphenyl-trichloroethane” better known as DDT. She theorized that the then-recent widespread public use of pesticides like DDT impacted the health of wildlife, especially birds. Scientists investigated her theories and confirmed that DDT caused the thinning of eggshells, leading to a perilous decline in eagles, peregrine falcons, and other wildlife. From her initial writings and scientific research, along with public outcry, in 1972, when some species were near extinction, the federal government through the United States Environmental Protection Agency (USEPA) banned DDT for most uses.
Fifty years ago, in 1973, Congressed passed the Endangered Species Act (ESA) 16 U.S.C. §1531, for the protection of plants, fish and wildlife under the jurisdiction of the U.S. Fish and Wildlife Service (USFWS). According to SenateRPC, a group seeking to strengthen the law, since the ESA was first passed in 1973, only 3% of species protected by the act have recovered sufficiently to the point where they are no longer listed as endangered or threatened. The Illinois Endangered Species Protection Act, 520 ILCS 10/ et. seq., is the state companion to the federal ESA with its own lists of threatened and endangered Illinois species.
The sad history of the impact of DDT on the environment, its banning, and the passage of the ESA, along with its enforcement today, exemplifies the importance of chemistry, botany, and biology in natural resource law. It also exemplifies how much there is yet to do in this area. These same sciences may likely be needed to enact laws that address the issues of today and tomorrow, such as the overabundance of microplastics in our oceans, the impact of the decimation of bees on our food supply and the disastrous results to native aquatic life of the release of invasive species such as Asian Carp on Illinois’ rivers and streams.
Science in Environmental Law
Chemistry, Biology, Geology, Hydrogeology and Engineering have all contributed to a law that requires the removal, remediation, and cleanup of toxic hazardous substances, even paints, that were dumped, discarded or left in place (and leaked) by industry or other responsible parties, even if the activity that led to the contamination was legal when it occurred. Love Canal in Niagara Falls, New York, exemplifies how industrial practices and landfill disposal, which was legal in the 1940’s and 50’s, led to human health and environmental disasters, including cancers, miscarriages, and birth defects in the 1970s and 80s.
A landfill for chemical wastes operated until its closing in 1952 with a clay cap (less protective than today’s cap requirements). Over time the clay cap was breached, and the waste chemicals leached into soils, waters and groundwaters, with some toxic materials leaching into building basements, exposing residents to toxic fumes. The toxic invasion of Love Canal led to the passage of the law commonly known as Superfund (The Comprehensive Environmental Response, Compensation and Liability Act or CERCLA, 42 U.S.C. §9601, et. seq.) CERCLA, enacted in 1980, creates retroactive liability for the cost of cleanup (often in the millions) on those who participated in the activity through contract, transportation, disposal, and those in the chain to title to the contaminated land when the release or leaching occurred.
Hazardous materials in use by industry today are also regulated in the U.S. “from cradle to grave” through the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. §9001, et.seq. The Illinois Environmental Protection Act, 415 ILCS 5/ enables the state through the Illinois Environmental Protection Agency (IEPA) to enforce these laws and others, such as the Clean Air Act (42 U.S.C., Chapter 85) and the Clean Water Act (33 U.S.C. §1251, et.seq.).
But we are continuing to learn from these sciences of new risks and harms that may require new specific laws. Only recently the USEPA has proposed to limit the class of chemicals known as perfluoroalkyls (PFAs) which are difficult to break down and used in a variety of products (commonly known as legacy or forever chemicals). The USEPA is proposing a value in the parts per trillion for two of these chemicals in potable or drinking water through the Safe Drinking Water Act (42 U.S.C. §300(f). Illinois is proposing similar restrictions on PFAs (IPCB R22-18), and with the recent focus on the impact of greenhouse gas and CO2 in the environment, the Illinois General Assembly this session is considering legislation to regulate the capture and storage of CO2, including in underground pipelines across Illinois (SB 2421). Accordingly, there is no shortage of new environmental laws needed today and tomorrow.
The Role of Social Studies and English Courses in Environmental Law
Political Science and English studies are also important in environmental law. Political science often addresses the balancing of interests required in passing environmental laws. For example, addressing climate change through encouraging solar and wind energy calls into play the “food vs. fuel” debate. Acre upon acre of prime Illinois farmland is being acquired for these alternative energy resources. Similarly, the Environmental Justice (EJ) movement considers the role of race, ethnicity, and poverty in the siting of polluting entities, intended in part to mitigate the cumulative impacts of pollution on such communities.
In drafting our complex environmental laws and regulations, in drafting violation notices, briefs to the court or to the Illinois Pollution Control Board (Illinois’ environmental court) writing in clear, concise, and plain English is key. In drafting a contract as to which party (buyer or seller) is responsible for assessing the level of contaminants in a commercial property at issue before its potential sale, and what happens when contamination is found, clear, concise, and plain English is key. The impact of the dangling participle or improperly placed period or comma are legion in the law, environmental or any other. It is my hope that this article was informative and that you’ll join me in what has been a rewarding career in environmental law.