CHAPTER 16 ETHICAL ISSUES FOR GOVERNMENT LAWYERS AND PRIVATE PRACTITIONERS WORKING ON PERMITTING AND OTHER ACTIONS INVOLVING FEDERAL AGENCIES

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 16
ETHICAL ISSUES FOR GOVERNMENT LAWYERS AND PRIVATE PRACTITIONERS WORKING ON PERMITTING AND OTHER ACTIONS INVOLVING FEDERAL AGENCIES
Terri Debin
Dana Jacobsen
Matthew W. Parsons
Department of the Interior
Office of the Solicitor
Rocky Mountain Region
Lakewood, Colorado

TERRI DEBIN is an Assistant Regional Solicitor in the Department of the Interior Rocky Mountain Regional Solicitor's Office in Denver, Colorado. She joined the Solicitor's Office in 1997 and her practice focuses primarily on land and mineral issues from the Bureau of Land Management and the Office of Surface Mining. Terri received a B.A. in Anthropology from Colorado State University and her law degree from the University Of Denver College Of Law. Terri has been a member of the Colorado Bar since 1986. Being a native of the beautiful state of Colorado, Terri spends most of her spare time enjoying the great outdoors with her husband, her two daughters, and her two labradoodles.

DANA JACOBSEN is an Assistant Regional Solicitor in the Department of the Interior Solicitor's Office in Denver, Colorado. She joined the Solicitor's Office in 1994 and her practice focuses primarily on legal issues from the U.S. Fish and Wildlife Service and the National Park Service. Dana is a graduate of the University of Oregon Law School, and is a member of the Oregon Bar. In her spare time, she enjoys backpacking, cycling, running and trying to swim.

MATTHEW W. PARSONS serves as an Attorney Advisor in the Departmental Ethics Office, Department of Interior Ethics Office, and is located in Denver, Colorado. Matt was born in Greenfield, Massachusetts, and raised in the Rocky Mountain West. He attended the University of Colorado and received a Bachelor of Arts Degree in History and Political Science in 1981. He attended the University of Iowa, College of Law, receiving his JD in 1986. He is licensed to practice law in the State of Iowa. Matt is a former career Army Judge Advocate. As a Judge Advocate he served as a trial defense counsel, prosecutor, operational law attorney, and in a series of administrative and civil law positions. He served as the senior supervisory attorney at Fort McCoy, Wisconsin and later as the Chief of Administrative Law, and then Chief of Criminal Law for the U.S. Army Reserve. His last assignment before retiring as a Colonel was as the Inspector General for the U.S. Army Reserve. He has worked in the area of government ethics in various capacities for the past 19 years.

The views expressed by the authors do not necessarily represent the views of the Department of the Interior or the United States

I. Introduction

This paper addresses the ethical obligations of government lawyers and private practitioners when working with Federal agencies. Rules that govern the conduct of attorneys and rules that govern Federal employees, generally, are important considerations in the permitting and approval processes. This paper will identify relevant provisions of the American Bar Associations's (ABA) Model Rules of Professional Conduct (Rules) for attorneys and the ethics statutes and regulations that apply to Federal employees in the executive branch. The discussion follows the development of a hypothetical renewable energy project and the ethical issues encountered by attorneys working on the project.

II. Hypothetical

A new renewable energy resource discovered (combination of wind, soil nutrients, and sun) referred to as "wisosun" can generate thousands of megawatts of electricity by the construction and operation of "wisosun farms" consisting of gadgets which process the three resources and turn it into energy. The gadgets or machines are referred to as WWs (wisosun widgets).

The U.S. Department of the Interior, Bureau of Land Management (BLM) has determined that an environmental impact statement (EIS) is required for the proposal by the Windsor Company to construct and operate a wisosun farm consisting of approximately 1000 WWs to generate in excess of 4000 megawatts of electricity. Tower bases, roads, electrical facilities and a power line will also be constructed. The project is known as the Windsor Wisosun Energy Project. The project area is located within Willyalookout County, Colorado. The EIS will assess the environmental impacts of the company's proposed action, the no action alternative, and a range of reasonable alternatives, and will serve to inform the decision-making official and the public.

To facilitate timely completion of required environmental documents, Windsor Company has agreed to contract the EIS preparation with a consulting firm selected by BLM. Pursuant to 40 CFR § 1506.5(c), BLM selected DoItAll Consulting firm to conduct the environmental analysis

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process and to prepare a Draft and final EIS at Windsor Company's expense. As the lead agency, BLM is responsible for analyses and documents that conform to the NEPA, CEQ, DOI and other pertinent federal laws and regulations. The Windsor Company and DoItAll Consulting agree to produce an analysis and document that meets BLM standards. A Memorandum of Understanding (MOU) is entered into to establish an understanding between the Windsor Company, the BLM and the DoItAll Consulting, regarding the respective responsibilities, conditions, and procedures to be followed during the preparation of the Draft and Final EIS.

III. Monetary Donations by the Developer

The Hypothetical Continues:

In addition to funding the cost of preparing the EIS itself, Windsor Company would also like to donate money to BLM so BLM can hire employees to work on the EIS in hopes that the process could be completed sooner. Is it appropriate for BLM to accept this offer? Pursuant to what legal authority may BLM accept an outside donation? Is there a mechanism which allows for the project proponent to cover additional expenses (i.e. hiring additional employees?). Windsor Company has also asked if a BLM and FWS employee can serve on an advisory group for the project to assist with implementation after the project is permitted.

Discussion:

The offer by the Windsor Company to donate money to BLM to hire additional personnel to complete the EIS more quickly is becoming a more common occurrence among energy developers. As agency budgets are constrained and the demand for energy development increases, more third parties, including developers themselves, are offering agencies funding for additional resources to complete expedited environmental reviews. This practice raises several issues, which agencies must consider before accepting outside funding.

The first issue is a basic fiscal law question. Does the agency have statutory authority to accept the donation? Absent clear statutory to accept donations, an agency may not accept outside donations of money, property, or services. To accept a donation without authorization would be either an improper augmentation of the Department's appropriations (for gifts of money and property) or would be an improper acceptance of voluntary services (for gifts of services).

Second, if there is statutory donation acceptance authority, the agency must determine whether it wants to accept the offer and if it can do so in a way that preserves: its integrity, ability to act impartiality when conducting environmental reviews, and public confidence in its operations. The question of preserving an agency's actual impartiality and the appearance or perception of impartiality is a significant challenge. There is little explicit legal guidance on this question. The ethics laws and regulations that govern the conduct of employees of the executive branch¹ focus on individual or personal interests and relationships that may be affected by official acts, but not on official action where no such personal (financial) interest or relationship is impacted. More specifically, those ethics laws and regulations do not address organizational conflicts of interest between an agency and the entities with which it conducts business.

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Ethics rules do, however, reinforce the principle that Government "shall act impartially and shall not give preferential treatment to any private organization or individual."² To ensure this occurs and that agencies maintain an "arms length" relationship with potential donors, there are a number of steps that should be considered. If an offer is going to be accepted, some sort of document should be used to memorialize the conditions under which the offer will be accepted.

Agencies should consider several alternatives as conditions for acceptance of any donation. Agencies should inform the donor that they have a legal obligation to comply with and meet their obligations under the relevant environmental laws and regulations. Agencies should also inform the donor that they retain the discretion to direct and control the review process, including the selection and supervision of personnel who will augment the workforce to conduct environmental reviews.

Whether an agency is willing to commit that donated resources will be used exclusively toward a particular project or instead will be used to support environmental work in a geographic region or a specific subject area should be addressed. If donated resources will be used to support a particular project, then the agency should consider organizing the workforce in ways to minimize the appearance of improper influence. For example, if donated money is used by an agency to hire additional personnel, the agency may want to consider using newly hired augmentees to perform duties unrelated to the developer/donor's project that will free permanent staff to conduct environmental reviews related to the developer/donor's project.

Agencies must determine the best course of action in the context of each project and the relevant statutory authorities. However, agencies must do all that...