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Corporate Environmental Programs and Litigation: The Role of Lawyer-Managers in Environmental Management

1985; Wiley; Volume: 45; Linguagem: Inglês

10.2307/3135034

1540-6210

Frank B. Friedman,

Regulation and Compliance Studies

Few corporate activities have been influenced by law as much as the environmental area. This is a relatively recent phenomenon. Until the early 1970s, significant legal involvement in environmental issues was virtually non-existent. Most state and local laws imposed limited requirements on corporations that could be handled at the technical level. These issues did not need to be managed and were considered to be very limited parts of operating activities. Confrontation between industry and regulatory agencies was not the rule. Differences were settled by technical negotiation since laws and regulations were frequently not specific. While there were instances when industry developed mechanisms for environmental protection that went beyond the law, these were largely influenced by concern for local public relations such as odor control. There was a period of long, stable economic growth through the 1960s. The general belief was that government could manage the economy and that if government concentrated on redistribution and the quality of life, the country's social problems could be resolved. This concentration on redistribution and the quality of life also began to change what was once only a limited concern with the law as public consciousness about pollution, as exemplified by Rachel Carson's Silent Spring, along with a general dissatisfaction with the quality of life and government (e.g., the Vietnam War) which greatly increased public social consciousness. The interest in pollution control grew as a result of public recognition that not only might there be a danger to fish and wildlife, the concern of a few conservationists, but that public health might also be affected. This concern culminated in the federal environmental of the early 1970s with a vast outpouring of federal legislation.' These laws were based on the assumption that the states needed the prodding of the federal government to ensure that pollution would be controlled in a nationwide, uniform manner.2 This assumption was not limited to environmental legislation, as the Great Society developed a wide variety of social programs, for example in the civil rights area, that assumed a strong federal presence. Only the federal government would be tough enough to prod the states and corporations. Indeed, such lack of trust in * Lawyers and litigation have had a profound impact on environmental management since the environmental of the 1970s and the advent of newfederal legislation written as the virtual equivalent to regulations. Litigation has been and is important in clarifying these complex laws, but can be either obstructive and confrontational or cooperative and more reasonable. The environmental revolution brought confrontation as well as clarification as competing groups sought to understand the broad implications of government command and control. This may have been inevitable, given major changes in areas of corporate decision making and the increased role of the lawyer and the lawyermanager. But liability exposure has grown immensely in recent years, and so has the complexity of the regulatory process. By being aware of the liability exposure and working toward longer range regulatory avoidance, true environmental management can be practiced, focusing on process rather than on individual permits.