DealingWith Federal and State Agencies, Citizen Groups, the Press, and the Public

AuthorFrank B. Friedman
Pages397-416
Chapter 10:
Dealing With Federal and State
Agencies, Citizen Groups, the
Press, and the Public
The purpose of this chapter is not to guide the corporate manager or le-
gal practitioner through the maze of environmental laws and regula-
tions, but to give helpful hints on dealing with the issues and people in-
volved. The chapter does, however, discuss some legal issues, including
those regarding the scope of review of agency decisions.1
The Regulators
Although federal and state decisions are often intertwined, it is important to
distinguish between federal and state regulators.
Federal Regulators
The federal regulators, specifically EPA employees, are divided among
the Washington, D.C., headquarters and 10 regions. On its face, EPA is a
decentralized organization, but major policy issues require decisions from
Washington.
The centralized-decentralized dichotomy breaks down on an issue-spe-
cific basis. For example, in the hazardous waste area, each region seems to
have its own view of policy, and headquarters has found it almost impossi-
ble to ensure uniformity.2Each region is jealous of its turf, and often views
headquarters as out-of-step with the real world and difficult to work with to
obtain decisions. Headquarters returns the compliment, generally viewing
the regions as not being totally aware of the Agency’s mission and not al-
ways cognizant of the implications of its decisions. If these characteriza-
tions sound familiar to those of you attempting to deal with business organi-
zational stresses, you probably now realize that one key to dealing with the
Agency is recognition that in many respects its internal stresses are no dif-
ferent from those of any large organization. Of course, as a government
agency, it is more vulnerable to congressional pressure. It is also slower to
397
make decisions because it lacks incentives (other than statutory deadlines)
for timely decisionmaking.
To deal successfully with EPA, or any other large government agency,it
is critical to analyze the organizational structure and find out what moves
the agency along. To obtain a favorable decision, it is also critical to deter-
mine what EPAwill gain from such a decision, as well as what political and
legal heat the decision will generate.3Your role as an advocate will be to
craft a solution for the Agency that will fulfill its purposes and minimize the
heat. The solution probably will not include everything your management
desires, but this is also true of the outcome of litigation.4
If you are involved in an Agency rulemaking, you must bear in mind that
EPAholds almost all the cards.
[A] private party should recognize the character of the proceed-
ing into which he is entering. The major federal environmental
statutes (e.g., the Clean Air Act, Clean Water Act, Resource
Conservation and Recovery Act) are goal-oriented. EPA has
been given broad authority under each to deal with risk to public
health or welfare from pollution of the air, water, or lands of the
United States; however, specific guidance from Congress on
how EPA is to interpret and implement these broad statutory
mandates is generally sparse.
Also, the rule-making procedures that implement these stat-
utes do not follow the rules of “fair play” of a judicial proceed-
ing. These are legislative rule makings where none of the judi-
cial rules apply. In effect, EPA itself is witness, prosecutor,
judge, and jury. Even the elemental features of reasonably accu-
rate transcripts of proceedings and access to the record upon
which the rule making is based are sometimes (as a practical
matter) not available.5
You should also know that most EPA staffers, particularly the lawyers,
are competent, committed to environmental protection, and inherently
skeptical about industry.There has been a strong Agency bias against hiring
personnel with industry experience, so very few EPA staffers have ever
worked in industry. Many very capable lawyers come to the Agency be-
cause they strongly believe in environmental protection and because they
feel that they will have excellent job opportunities on leaving the Agency.
The legal staff at EPA (and at the DOJ’s Environment and Natural Re-
sources Division, which often represents EPAin litigation6) is of a very high
quality, although many staffers are young and inexperienced. Although
most EPAtechnical personnel are also competent, they have not necessarily
398 Practical Guide to Environmental Management

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