Q: Why did you want to go to law school?
A: At the age of ten I was captured by the law when I saw an Independence, Missouri William Chrisman High School production of Inherit the Wind. I can even remember the individuals who played the Clarence Darrow and Williams Jennings Bryan parts. Phil Soper played Darrow and Lynn Ballew portrayed Bryan. By the way, Phil went on to earn his law degree from Washington University in St. Louis, and, according to hometown history, clerk for a U.S. Supreme Court Justice and teach law at the University of Michigan. I trust someone will check this story out! Lynn also attended law school, the University of Missouri Columbia, and has practiced in Missouri for over thirty years.
Q: From what law school did you receive your degree and what year?
A: University of Missouri, Columbia. 1975.
Q: What did you do immediately after law school?
A: I tried to figure out how to practice law, wondering, what, if anything, law school had to do with the real world! In seriousness, Tim Murphy, a law school classmate, and I opened an office in Kansas City. Somehow we managed to hang on through the early daze (that's an intentional pun) and the practice is still going under the name of Murphy & Tobin. We spent a lot of time reading Sports Illustrated in the first years.
Q: Why did you choose to concentrate on environmental law?
A: Environmental law in particular, like law in general, is something that "captured" me although I don't have an Inherit the Wind story. My best recollection is that my interest dates back to my college undergraduate days when I took a course in Political Responses to Ecological Demands. This was in the late Sixties when the environmental movement was in its infancy. The seed planted in the Sixties came to fruition about ten years later when I organized and chaired the Missouri Bar Committee on Energy and Environmental law.
Q: Can you give us background information on how environmental law came about within the U.S.?
A: The modern U.S. environmental movement, from a legal perspective, started in the Sixties with the Lady Bird Johnson highway beautification program. Congress later passed the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the rest, as the say, is acronym history.
Q: Did the National Environmental Policy Act establish the Environmental Protection Agency (EPA) or was the Agency in place before the Act?
A: The National Environmental Policy Act, or NEPA, was passed in 1969 and signed into law in 1970. The Environmental Protection Agency was also created in 1970 by Executive Order.
Q: What was the EPA set up to do?
A: The primary mission of EPA has always been to "protect human health and safeguard the natural environment."
Q: Has the EPA's powers changed through the years?
A: Generally speaking EPA's powers have expanded with each new legislative initiative. Perhaps the two biggest jumps came in 1980 and 1990 with the passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 1980, and the Clean Air Act Amendments (CAAA), 1990.
CERCLA was designed to deal with the problem of abandoned and uncontrolled hazardous waste sites, the two most famous, or infamous, being Love Canal, in the Buffalo, New York area, and, Times Beach, just south of St. Louis, Missouri. Love Canal was a residential area contaminated with various chemicals from a chemical production facility and Times Beach was a small town that had its roads and parks contaminated with 2,3,7,8 tetrachlorodibenzo-p-dioxin, (dioxin). The key legal section of CERCLA is section 107 which provides for strict, joint and several liability, and, has spawned considerable litigation in the past twenty years. CERCLA was finalized in the "lame duck" session of the Carter administration.
The Clean Air Act Amendments of 1990 were passed during the Bush administration and require a vast array of industries and businesses to have air "operating permits". These permits limit the amount and/or rate of emissions for regulated entities.
Q: How would you rate the EPA's overall performance? Has it been effective?
A: This question and the next are the "big" philosophical questions. Here's my take. EPA has been much more aggressive, from an enforcement perspective, during the Democratic administrations, Carter and Clinton, than the Republican administrations, Nixon, Ford, Reagan, Bush and Bush. On the other hand, many of the primary legislative initiatives have come during the Republican administrations. It's important to keep in mind, of course, that the Democrats often controlled Congress during the Republican administrations.
To me this says that preservation and protection of the environment has become a high priority with most Americans and the priority is recognized either through executive or legislative action. Given these inherent checks and balances, I believe EPA has done a remarkable job, in a highly politicized environment, of administering the laws and regulations.
Q: How could the EPA be improved?
A: In simple terms, somehow we must find a way to simplify a very complex field or we will find ourselves drowning by the mere weight of our laws and regulations. I recognize the hyperbole in the previous statement. Nevertheless, the fact is that the practice of environmental law has become just as complex and hyper technical as tax law. Laws, and especially regulations, must be written in plain language, comprehensible to the general public.
Q: Now that the federal government has intricate and extensive regulations, what role do the individual states have in protecting individuals and the environment within their own borders?
A: The role of the states is actually broader than ever. Many states are authorized to enforce most of the major federal laws and regulations. Allow me to illustrate how this works through an example.
One of the major environmental problems facing eastern metropolitan areas is ground level ozone, a component of urban smog. Nitrogen oxide, or NOx, a precursor of ozone, results primarily from two sources, internal combustion engines, such as those found in automobiles, and, emissions from coal-fired utilities. Through computer generated models scientists over the past decade have been able to determine that much of the NOx found in the eastern states originates in the Midwest. It's actually a matter of prevailing winds. So, much of the NOx found in Maine may come from Boston, and, much of the NOx found in Boston may come from New York, etc.
The Clean Air Act is often called the "great environmental experiment in federalism." National Ambient Air Quality Standards (NAAQS) are set by the federal government. The states, however, are charged with the task of achieving the standards. The mechanism set up within the Clean Air Act to achieve enforcement is called the State Implementation Plan or SIP.
With reference to the NOx problem, several years ago the EPA initiated a NOx SIP Call, meaning, the agency called upon certain states (around 20) to revise their SIPs to meet the new NOx and particulate standards. The point of this example, other than to drown everyone in a sea of acronyms, is to illustrate that the field of environmental law is often designed to work as a state/federal partnership. The federal government sets goals and standards while the states are given the freedom, or burden, of deciding how the standards will be met within their particular borders. So, the state legislatures and agencies are often the forums where the rubber hits the road, so to speak, i.e. where the hard decisions are made regarding which particular entities will be regulated, and how much.
Q: What states are more proactive in environmental protection?
A: There are certainly differences among states as to how they view environmental issues. On balance, however, I believe that the similarities outweigh the differences. Having said that, here's the conventional wisdom regarding the environmental record of various states. The leaders in land use planning are Oregon and New Jersey. New Jersey got off to a bad start with the reputation, probably well-deserved, as a dumping ground for New York. Over the past fifteen to twenty years, however, New Jersey has been in the forefront of both toxic waste control and land use planning.
And, can we possibly forget, no matter how hard we try, the last election and the constant bombardment of information about the air in Texas. Unfortunately for Texans, the Democrats were simply taking advantage of what environmental professionals have been saying for years, Texas is weak on controlling air pollution, perhaps surpassed only by its neighbor to the east, Louisiana. Having now offended millions of gun-carrying Texans (there I go again and I haven't even seen Miss Congeniality, only the promos) I must quickly add that my home state of Missouri boasts of the lead belt, which is becoming more and more known for elevated lead levels in children rather than production of a useful material. I digress. You asked who was doing well, not poorly!
In addition to Oregon and New Jersey, states such as Minnesota and New York are generally considered proactive environmentally. Furthermore, some special recognition should be given to North Carolina for attempting to tackle an industry, corporate hog farms, that contributes heavily to the state's economic well-being.
Q: Do states within geographic regions form compacts or meet to discuss common issues? I'm thinking of the necessity of sharing water in areas of the West.
A: Yes. This is happening with increased frequency. Practicing in Missouri I am not particularly familiar with western water compacts, but I am acquainted with an issue facing all states regarding disposal of low-level radioactive waste. The way this problem has been addressed is by states entering into compacts with other states, and groups of states, for purposes of finding suitable sites, if such exist, for disposal of low level radioactive wastes generated by nuclear power plants, university nuclear reactors, etc.
Q: If factories in the Midwest cause air pollution here in the Northeast, what can a state or an individual do to attempt to remedy the situation?
A: I've addressed this question somewhat in my answer regarding the role of the states. Implicit in that answer is this point. The best tool states possess for protecting their resources from pollution originating in other states is by applying pressure in Congress and on the Environmental Protection Agency, for passage of laws and regulations designed to curb pollution in the offending states. The Acid Rain Section of the 1990 Clean Air Act Amendments is a perfect example of this strategy. Equally important are the so called "citizen suit" provisions of the major environmental laws. More and more we see states such as New York taking advantage of the "citizen suit" provisions by suing other states alleged to be in non-compliance with applicable laws and regulations.
Individuals, of course, can also bring actions under the citizen suits provisions. And, a strategy near and dear to my heart is the public or private nuisance lawsuit. While serving as a Missouri Assistant Attorney General and litigating the Missouri dioxin cases I always added a claim using a public nuisance theory. Although nuisance law can be an impenetrable maze, to paraphrase Professor Prosser, it has several potential advantages over federal citizen's suits. Nuisance actions are primarily equitable in nature. Most judges I know like to be dispensers of equity, whereas they may or may not be fond of legislative directives. Furthermore, nuisance cases open the possibility of recovering a broader range of compensatory damages. For the most part, compensatory damages are not recoverable under the federal statutes.
Q: Recently, heated debates have been occurring in the West and in the Northwest over land rights and drilling for natural resources. Does environmental law have a role in these debates?
A: Yes. Next question. In seriousness, it's my guess that the various drilling questions, much like the loggers versus the spotted owl, will be played out for years before the various federal agencies and the courts. The mechanism for this production will be the Environmental Impact Statement mandated by the National Environmental Policy Act.
Q: Let's look outside the United States. Are other countries actively engaged in "safeguarding" the environment? Are some countries more proactive than the US?
A: I need to preface this answer with an important caveat. I am not an expert on international environmental law. But, as my wife will attest, lack of expertise has never stopped me from expressing an opinion. So, in the for what it's worth category, I doubt that there are any countries that can match the United States' comprehensive program of environmental protection. I am confident that there are nations with stricter regulations in certain areas, such as particular air emissions or water discharges. However, I have not seen or heard anything to indicate that any country is doing a better job, on balance, in preserving and protecting the environment than the United States. As a matter of fact, this country's National Environmental Policy Act, with its requirement for Environmental Impact Statements, has served as the prototype for environmental legislation in many other countries.
Q: Scientists are saying that global warming is occurring and a serious force to be reckoned with. How can this issue be addressed in the environmental law forum?
A: Clearly, the most important steps in combating global warming must be taken in the international political arena. There are, however, steps to be taken closer to home by all of us. The World War II comic strip Pogo reminded us that we have met the enemy, and, it is us. At the risk of sounding preachy, it seems obvious to me that our western consumer lifestyle is a large contributor to our environmental problems. Every time we drive our cars unnecessarily, we contribute to global warming. Carbon monoxide is a greenhouse gas. Somehow we seem to have forgotten the importance of conservation.
Another potential area for control in the U.S. is confined animal feeding operations (CAFOs). The U.S. has become a major exporter of pork. Most of the pork in the U.S. is now produced at large CAFOs. These CAFOs often house many thousands of hogs and the waste is often treated in single cell, uncovered lagoons. In addition to creating a substantial odor problem, and, potential water problem, for surrounding neighbors, the lagoons are a major producer of methane. Methane is one of the most important greenhouse gases. Covering these lagoons, a relatively small expense, can achieve the twin goal of reducing odorous emissions, such as hydrogen sulfide, and also reducing non-odorous methane emissions.
Q: Can you give us some background on the Kyoto Protocol?
A: The Kyoto Protocol references an ongoing process carried out through the United Nations whereby the world's industrialized nations have been attempting to reach an agreement regarding reduction of the so-called greenhouse gases, i.e. carbon monoxide, nitrogen oxides, methane, etc. Prior to the most recent meeting in Germany, representatives of the participating countries gathered last fall at the Hague in the Netherlands. At the Hague the primary sticking point to reaching an agreement was whether or not certain industrial nations, such as the United States, Canada and Russia, could receive credit for natural "sinks". Sinks are forest areas that eat up, or naturally reduce greenhouse gases. Reports I've read from the most recent meeting in Germany suggest that a compromise was reached, regarding these "sinks", that satisfied all nations except the United States.
So, the United States appears to be alone in its rejection of a unified approach to greenhouse gas reduction.
Q: Is the US any closer to reaching an agreement with the other nations regarding the Protocol?
A: No. In fact, the information I'm reading suggests the answer is not only no, but, hell no. But, it is extremely important to keep this issue in perspective. Personally, I side with the vast majority of scientists who believe that global warming is a serious problem that is being either caused, or substantially exacerbated, by manmade emissions.
This is, however, a very complex scientific problem, and, just because a vast majority of scientists in the field believe something, doesn't necessarily make it so. For instance, there's been a biblical research project going on for the past ten or fifteen years where a group of scholars have been attempting to determine which statements in the New Testament attributed to Jesus actually came from Jesus. I have no doubts that these are very good scholars. Nevertheless, just because a majority of them reach a conclusion one way or the other, doesn't necessarily make that conclusion right.
The analogy may not be strong, but my point is that predicting weather patterns for the next century is a very tricky business. Like it or not, however, I believe we are stewards, not owners of this earth and as such we are charged with making difficult decisions on the best available scientific information. To me that information says we must act now, and, the Kyoto Protocol is the best mechanism we now have for action.
Q: Will environmental law become more "internationalized" in the future?
A: I don't think there's any question that the field of environmental law will become more "internationalized" in the future. My prediction is that we'll see more regional pacts, such as agreements between the United States, Canada and Mexico, in the next century.
Q: Back to the personal level, what do you specifically do as an environmental law attorney?
A: Most of my time is spent representing clients concerning issues they have with the Missouri Department of Natural Resources. These issues may involve air, water or solid waste permits and the various discharges that occur relating to these permits. In that connection I represent a number of Missouri municipalities. As a matter of fact, while preparing these answers I was interrupted by one of my small city clients that just experienced a sewer line break resulting in a fish kill. There's nothing I like better than having the chance to get out of the office and trek around in the woods searching for a broken sewer line! They're not too hard to find.
I also do a substantial amount of work connected with petroleum storage tanks. I represent the Missouri Petroleum Storage Tank Insurance Fund on a contractual basis, and, private individuals and businesses in their interactions with MDNR involving petroleum cleanups.
Finally, I also represent private citizens and citizens' groups concerned with particular environmental issues in their areas. For instance, I've tried several cases against concentrated animal feeding operations where I represented surrounding neighbors who complained about odors and/or water pollution emanating from the confinement facilities.
Q: If a law school graduate has an interest in environmental law, what would you suggest that person do?
A: Realize you are going to be a lawyer first, and, an environmental lawyer second. I think it's important to prioritize your passions, law first and the environment second. This is not meant to denigrate a passion for environmental protection, but only to focus on the fact that the law will still be your profession.
Having said that, there are many good ways to get into the field. The way that I took, and still one I consider a good path, is to work for a State Attorney General's Office. A. U.S. Attorney's Office, or the U.S. Department of Justice, represents other good options. Working for a State Environmental Agency, or the U.S. EPA is also a possibility. My personal preference, though, is to find a job with a State AG or the U.S. DOJ because those are the entities that litigate environmental issues. For the most part lawyers with the state environmental agencies or the U.S. EPA only advise their clients. They do not personally litigate the issues.
Q: Any further thoughts?
A: Nothing further, except to add that on most days I wouldn't trade my job with anyone. I consider myself extremely lucky to have been able to spend my time doing something I love to do.