Winter 2011: Ethics & Disclosures

Environment

Environmental Justice: Merging Environmental Law and Ethics

Julia C. Rinne and Carol E. Dinkins

Race and socioeconomic status play a large role in the environmental health of communities throughout the nation. Federal, state, and local environmental justice initiatives attempt to address the disproportionate share of environmental hazards placed on minority and low-income communities. Because the merger of ethics and environmental law forms the foundation of environmental justice...

Environment

Playing Poker with Pollution: Why It Is Time to Change the CERCLA Reporting Obligations

Larry Schnapf

Three decades after the passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. ?? 9601 et seq., this country is still adding to its inventory of contaminated sites. Many of these contaminated properties have been transferred or sold a number of times since CERCLA was passed, yet regulators frequently are not notified about the environmental conditions uncovered during due diligence...

Environment

Environmental Law Practitioner's Guide to the Model Rules

Pamela R. Esterman

This article presents an overview of how the ABA Model Rules of Professional Conduct govern some of the more common ethical dilemmas that environmental lawyers may encounter in the field. From representation of multiple potentially responsible parties (PRPs) in a Superfund cleanup negotiation to retention of scientific experts for trial or compliance with environmental statutes' reporting provisions...

Environment

Sustainability Is Driving Toxic Chemicals from Products

William J. Walsh and Michelle M. Skjoldal

Many chemicals now classified as ?toxic? based on exposure of test animals or humans at high levels have long been used in the manufacture of products. The Environmental Protection Agency, states, and even retailers are taking preventive action to reduce exposure to toxic chemicals. Adopting more sustainable products as a matter of regulatory or statutory policy may require, or at least provide an incentive for, removal of "toxic" chemicals from products...

Environment

Greenwashing: What Your Client Should Know to Avoid Costly Litigation and Consumer Backlash

Scott D. Deatherage

"Greenwashing" refers to the phenomenon of eco-exaggeration, that is, the practice of many companies who label and advertise their products as ones that are good for the environment when their products have little or no positive environmental benefits. At its heart, greenwashing is the act of misleading consumers regarding the environmental benefits of a product or service in order to entice the consumers to purchase that product or service...

Environment

Nano Disclosures: Too Small to Matter or Too Big to Ignore?

Lynn L. Bergeson and Charles M. Auer

The presence of intentionally produced nanoscale materials raises interesting and generally unanswered questions regarding the obligation to disclose the presence of these materials. Federal agencies, including the U.S. Environmental Protection Agency and the Securities and Exchange Commission, have widely disparate interpretations of what type of information is reportable and when...

Environment

Practical and Ethical Issues of Blogging in Environmental Law

Steven C. Russo and Ashley S. Miller

Blogging presents environmental attorneys with a low-cost and effective method of marketing but requires attorneys to navigate several technical and ethical issues. This article provides a summary of the practical steps required in setting up a blog, from picking a topic to choosing a software platform. It focuses on the ethical issues involved in legal blogging, including confidentiality, client solicitation, extra-territorial practice of law, advertising, liability protections, and avoiding the inadvertent creation of an attorney-client relationship.

Environment

The SEC Enters the Fray on Climate Risk Disclosure

Scott D. Deatherage

In 2010, the Securities and Exchange Commission (SEC) issued a document to provide guidance to publicly traded companies as to how to apply SEC rules to climate risk disclosure. The SEC discussed four items in Regulation S-K that apply to climate risk: Item 101, Item 103, Item 303, and Item 503...

Environment

Ethics and Professional Conduct for Federal Government Attorneys

Peggy Love

Federal government lawyers have to comply with more than one set of ethics rules--the same ethics rules as their private practitioner counterparts, as well as the ethics rules and considerations applicable only to those in government service. ...

Environment

Vantage Point

Gale Lea Rubrecht

In this issue, you will find ethics articles concerning environmental justice, greenwashing, the Model Rules of Professional Conduct, federal government attorneys, and blogging and an interview of Thomas Spahn on ethical issues confronting SEER attorneys.

Environment

Interview: Thomas E. Spahn

Milo Mason

Thomas E. Spahn practices as a commercial litigator with McGuireWoods in McLean, Virginia. He has served on the ABA Standing Committee on Ethics and Professional Responsibility. Tom has written and lectured widely (at over 900 CLE programs throughout the U.S., and in several foreign countries) on ethics and other topics. He is a Fellow of the American Bar Foundation and is included on several lists ranking top lawyers and law firms.

Literary Resources

Reviewed by JoAnne L. Dunec

Reviews of The Evolution of Natural Resources Law and Policy; Nature’s Ghosts: Confronting Extinction from the Age of Jefferson to the Age of Ecology; Integrated Approaches to Riverine Resource Stewardship: Case Studies, Science, Law, People, and Policy; and Inland Fishes of the Greater Southwest: Chronicle of a Vanishing Biota

Environment

The Back Page

Mark Ryan

Everyone, I hope, was taken aback by the news last year that employees of the Minerals Management Service (MMS) were caught with their hands in the cookie jar. Never mind that they may have at times cut good deals for the government, as a public servant and a government employee ethics advisor, I was appalled...

Environment

Ninth Circuit Upends the CWA Applecart

Mark A. Ryan

This article discusses the Ninth Circuit's recent decision in Northwest Environmental Defense Center v. Brown, in which the court invalidated EPA's regulation exempting logging roads from National Pollutant Discharge Elimination System (NPDES) permit requirements. The decision is significant because it changes years of settled law regarding forest roads, affects potentially hundreds of thousands of miles of roads, and reflects the courts' general disapproval of categorical exemptions from Clean Water Act requirements...

Environment

It Seems Everyone Is Protesting BLM Oil and Gas Lease Sales

Jean Feriancek

A July 2010 GAO report found that most federal oil and gas parcels offered by the Bureau of Land Management (BLM) for competitive lease sale are protested by environmental groups and a wide variety of other groups and individuals. BLM?s decisions about whether the protests have merit often are not issued until long after the lease sales, and data available to the public about protests on BLM's website have been incomplete or inaccurate...

Environment

The Duty to Preserve: Lawyers Beware!

John M. Barkett

In the electronic world, the duty to preserve can create jeopardy for litigants. Every employee is a file keeper and with the stroke of a key can delete information material to the pursuit or defense of a claim...

Environment

The "Green" Supply Chain: A New Role for Lawyers?

Jonathan P. Scoll

Manufacturers, distributors, and retailers are increasingly faced with or adopting "green supply chain management" standards and practices. A recent high-profile example is the retailer Wal-Mart?s announcement, in July, 2009, that all its suppliers must now evaluate and report to Wal-Mart on their conformance to Wal-Mart's published sustainability criteria. The trend presents both novel legal issues and practice opportunities for environmental lawyers.

Environment

Sufficient Cause to Just Say "No"? CERCLA 106 Orders

John R. Eldridge

CERCLA gives the Environmental Protection Agency (EPA) a powerful weapon to compel parties to remediate contamination, even when they may have defenses: Section 106 unilateral administrative orders, or UAOs. Non-compliance with a UAO can trigger major penalties. But, if a party has "sufficient cause" to decline compliance, penalties are not allowed...