Environmental law: a litigator's perspective on permitting considerations.

Author:Elkan, Alexander
Position:LAW JOURNAL 2017

Developing a project or facility often presents significant challenges, including those associated with obtaining environmental permits under federal, state and local laws and, in the most challenging cases, defending those permits in litigation. Ideally, a project may have comprehensive advance planning, few regulatory obstacles, and broad and deep government and public support. Under less ideal circumstances, there may be a condensed time frame to obtain a permit, significant legal or regulatory "roadblocks," vigorous public and political opposition, and litigation. This article does not attempt to dive into the myriad of complex environmental regulations that may entangle a project, rather it offers more general concepts that are important to keep in mind, regardless of the project and regulatory framework. Consideration of these matters may increase the chances of success, not only in obtaining necessary government approvals but also in preventing or defending against litigation.

* Team composition--A project permitting team must have expertise in the legal, regulatory, geological, biological, engineering, economic and other technical aspects of a project. At least some team members should have established mutually respectful relationships with relevant regulatory staff at the local, state and federal levels. Depending upon the project and the company, the team may include some combination of company executives, professionals and staff, and outside counsel and professionals. Individual expertise, capacity, cost and effectiveness should be considered when assembling a team. For all projects--especially those likely to be disputed--team leaders and outside counsel should assess the ability of individual team members to serve as potential witnesses in possible administrative or judicial litigation. Since the team's work must justify issuance of the required permits to regulators, the public and administrative tribunals and courts, competency, credibility and communication are key.

* Scoping and planning--Business priorities drive projects. However, input from environmental permitting experts at the earliest stages of project scoping and planning may help avoid potential set-backs that could frustrate business goals. The old adage "an ounce of prevention is worth a pound of cure" applies here. Alternative locations or configurations for a project should be assessed early in the process and considered in light of regulatory requirements for...

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