The Use of Environmental Counsel and the American Rule on Attorney Fees
| Publication year | 1994 |
| Pages | 1537 |
1994, July, Pg. 1537. The Use of Environmental Counsel and The American Rule on Attorney Fees
Selecting an appropriate team of environmental lawyers and nonlawyers is one of the most important steps buyers, sellers and owners of real property and their secured lenders can take toward ensuring compliance with the variety of state and federal environmental laws that apply to the ownership, control and transfer of real property.
This article addresses two topics of concern to real estate professionals today: (1) why the environmental team working on a particular property ("team") should include both lawyers and nonlawyer technical consultants, and (2) how to contain or recoup the costs associated with the use of both legal and nonlegal environmental consultants.
Nonlawyer technical consultants ("consultants") bring technical education, experience and expertise to the team. Few real estate attorneys are trained in the scientific and technical areas necessary to understand and evaluate the importance and impact of field data produced in routine Transaction Screens, Phase I Environmental Site Assessments or in connection with sampling and laboratory analysis.(fn1) For example, a consultant with expertise in groundwater hydrology and soils engineering will be better equipped than most lawyers to evaluate a soil venting and air sparging or other system proposed for soil and groundwater remediation where consideration of such technical issues as the thixotropic effect on hydraulic conductivity of compacted clay soils may be required.
Further, real estate attorneys are not commonly trained in the sciences,(fn2) the Occupational Safety and Health Administration ("OSHA") requirements related to common consultants' activities such as confined space entries,(fn3) or sampling or remediation methodology. A consultant with experience in soil and ground-water remediation will be invaluable in interpreting fluctuating contaminant levels in groundwater monitoring. Such fluctuations may be the result of improper or changed sampling protocol, a change in laboratories or laboratory procedures, or may be indicative of an additional source of contamination or of a remediation system's failure to achieve desired results. An experienced consultant can help the real estate attorney and that attorney's client determine the most likely cause and most appropriate response.
The environmental lawyer ("counsel") is as important to the team as the consultant.
The consultant is expected to identify and raise technical issues such as damaged or dead vegetation (which may indicate a release onto the property of a toxic substance) or inconsistent or unexpected laboratory results (which may indicate additional releases on the property or improper sampling or laboratory protocols). Similarly, counsel is expected to identify and raise legal issues such as whether the buyer, seller or owner or their secured lenders (collectively, "client") may be a potentially responsible party,(fn4) whether insurance may be available to pay the costs associated with an environmental cleanup or other environmental damages, and the applicability of any state or federal statute of limitations.
Counsel also is responsible for assisting the client with legal risk analysis in choosing any course of action or nonaction. Counsel should stress to the client that legal risk...
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