Winds of Change for Environmental Lawyers?
California Lawyer

Winds of Change for Environmental Lawyers?

by Robert Iafolla

October 2012

Illustration by Alison Seiffer

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The Obama administration's energy and environmental policies have drawn criticism from across the political spectrum. Industry and congressional Republicans maintain that President Barack Obama has destroyed jobs and damaged the economy with needless regulation, while some environmentalists argue he has coddled fossil fuel producers at the Earth's expense.

When Republican presidential candidate Mitt Romney was the moderate governor of Massachusetts, he may have agreed with the Obama administration's middle-of-the-road approach. But his recent embrace of the GOP's pro-fossil fuels, anti-regulatory positions signals a significant change.

"Romney of 2003 better understood that a healthy economy and a healthy environment can coexist easily," says Heather Taylor-Miesle, director of the NRDC Action Fund, an affiliate of the Natural Resources Defense Council. "His decisions and rhetoric on the campaign trail leads me to believe that Romney is gone."

If Romney prevails in November and pursues his advertised agenda, it could shift the playing field for attorneys in California who help clients comply with environmental regulations and develop renewable energy projects.

Although he hasn't provided specifics, Romney promises on his campaign website to "eliminate the regulations promulgated in pursuit of the Obama administration's costly and ineffective anti-carbon agenda" and "press Congress to reform our environmental laws to ensure that they allow for a proper assessment of their costs."

Regulations that are already under review present the easiest opportunity for a Romney administration to leave its mark. At the top of the list are the rules and procedures for obtaining permits under the Clean Air Act, said Bob A. Wyman, chair of Latham & Watkins' environment, land, and resources department. The Obama administration is looking to streamline these rules, which have been building for years under several presidents, but Wyman expects that Romney would go further to limit regulations.

"If we truly had real reform, a lot of legal work would go away," he adds. "There would be less work for lawyers, but it would be better for society."

Among the changes postponed until 2013 are new regulations for ground-level ozone (also known as smog) lawyers say. Those rules are especially important for infamously smoggy Los Angeles and the San Joaquin Valley.

But relaxed federal regulations could have a muted effect in California because of the state's strong environmental protections, notes Zachary Walton, a partner with the SSL Law Firm. For example, he says California used its authority under the Porter-Cologne Water Quality Control Act (Cal. Water Code §§ 13000-16104) to step in and regulate certain waterways after the U.S. Supreme Court narrowed federal jurisdiction six years ago in Rapanos v. U.S. (547 U.S. 715 (2006)).

Even so, the interplay between the two levels of regulation could ultimately be decided by lawsuits that seek federal preemption of state laws. "California has strong and well-developed environmental laws, which certainly makes California a unique place and can insulate it from federal changes," Meyers Nave Riback Silver & Wilson partner Gregory J. Newmark says. "But industry would not necessarily be left without avenues to explore how a Romney [Environmental Protection Agency] could have a palpable effect in California."

New energy and tax policies could have a more immediate effect in California than changes to environmental regulations, lawyers say. Whereas the Obama administration put forward a suite of programs and incentives to spur renewable energy innovation, Romney's energy platform focuses on oil, gas, and coal. Rolling back renewable energy investment would be "a nightmare" for some California companies, which would need help from attorneys to unravel their projects, says Jane B. Kroesche, who handles environmental transaction matters out of Skadden, Arps, Slate, Meagher & Flom's office in Palo Alto.

Enforcement is one area where environmental litigators don't expect a major change should Democrats lose the White House. Career regulators who work across administrations make most of the individual enforcement decisions, says Gibson, Dunn & Crutcher partner Thomas McHenry, adding that they tend to be interested in protecting the environment. In testimony before a congressional panel in June, Nova Southeastern University Law Center professor Joel A. Mintz said that EPA enforcement during Obama's presidency has been similar to its record during nearly every other administration in the agency's 42-year history.

Regardless of what direction the winner of the presidential race takes environmental and energy policy, lawyers in California are sure to be busy assisting clients with the state's cap-and-trade program for carbon emissions. The first allowance auction is slated for Nov. 14 - one week after the election - and the program will launch in January.

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