The Nickel Report

A common question that we all ask whenever we meet someone new in a social setting is “what do you do?” This seemingly innocuous question always makes me brace myself for the inevitable exchange that will follow. When I say that I am an environmental attorney, the next question is almost always whether I work for the “good” or “bad” guys. The clear assumption in this question is that environmental advocacy groups are “good,” while industry parties are “bad.” But is this issue really that black and white? Based on my experience, no. The issue is far from being that simplistic.

In this cocktail party parlance, I would be deemed to be on the side of the bad guys. My clients generate electricity, mine coal, drill for oil and gas, and manufacture things. All of these activities impact the environment, but they also provide our society with things we need and use every day—not just want, but need. So how can this be considered bad? I believe the idea stems at least in part from a misperception that these companies are some type of mustache-twirling villain, plotting how to make more money while dumping tons of toxic pollution into the environment. In the nearly 20 years that I have been practicing environmental law, I have never once found this to be the case. To the contrary, my clients all care greatly about ensuring that they are in compliance with all environmental regulations, and I have never had a client tell me that they don’t care about the environment.

It is true, however, that my clients sometimes challenge environmental regulations and that I assist them in doing that. Is this what makes them—and by association, me—“bad”? I suppose if one looks at this issue very superficially that might seem to be the case. But again, the issue is much more complex than that. If an environmental regulation violates the law, should the parties subject to the regulation simply accept it? Does the fact that the unlawful regulation is designed to protect the environment mean that we should look the other way?

If you take the hypothetical out of the environmental arena, it becomes clearer. Assume that a law is passed that says that people in high-crime areas can be pulled over randomly on the street and searched for weapons and drugs. The purpose of the law is good—it will help eliminate crime and reduce the drug trade. But the law violates one of the fundamental protections provided to us by the Constitution, which is the prohibition on unlawful searches and seizures. Are persons who challenge such a law evil promoters of crime and drugs? Most everyone can understand the more fundamental nature of the challenge and the danger of surrendering our constitutional principles, even for a laudable goal.

Environmental regulations are also challenged sometimes because the cost exceeds what can be justified under the applicable law. Does this mean that the persons challenging them are greedy and don’t care about the environment? This is yet another issue that is not as simple as it appears at first blush. If the law requires cost to be considered, and an environmental regulation fails that test because its cost is great while the environmental benefits that it yields are small, should it be implemented? For some people, no amount of money is too much to spend protecting the environment. Yet, the law often dictates that a balance must be struck. And it cannot be disputed that costly environmental regulation affects all of society through increased costs of electricity, fuel, and goods and services.

The bottom line is that the question of whether I work for the good guys or bad guys cannot be discussed in such stark terms. We as a society need to engage in a broader discussion of the balancing that is required between environmental protection, which the vast majority of us agree is necessary, the costs (monetary and otherwise) that such protection entails, and—given that we do not live in a society of unlimited resources—the need or opportunity to invest in other worthwhile societal objectives. The idea that such issues can be boiled down to black and white, good versus evil, ignores their true complexity.