Anthony Schutz, Nebraska College of Law professor, told NRT students in a roundtable discussion on December 11 that lawyers can appear as dark, analytical people nobody wants to work with but that also makes them good members of environmental decision-making teams.
“What lawyers like to imagine is what happens when it goes wrong,” he said. “We’re pessimistic, we’re critical, and we’re just a total pain.”
Schutz said this analytical rigor benefits the team since a lawyer will ask the questions that need to be asked. As an example, he discussed a prescribed fire burning too far and destroying private property.
“A lawyer will ask, ‘All right, what’s the liability? What’s it concern? Do you have the insurance and what does it cover? Who is involved and whose equipment and who’s on the equipment? Did they get trained? Do they need to be trained and what’s going to happen? Who is emailing what to whom and when?’” he said.
Schutz explained to NRT students how environmental law fits into law and policy as a whole.
“When we think about the environment, we can think of it in very broad scales, we can think of it in very narrow scales, we can cut it up in a lot of different ways,” he said. “That’s kind of the way law and legal study work, as well.”
No lawyer just practices in one area of the law, like environmental, he said. An environmental lawyer will need knowledge of contract law; property law; tort law; public law such as constitutional law, criminal law and administrative law; and natural resources law such as oil and gas law, mining law, water law and energy law.
“Many different areas of the law are pulled upon to deal with a particular set of circumstances you have,” he said.
Schutz explained that law is all about resolving conflicts among people and that environmental law fits within that even though many people would think of it as managing conflicts between people and the environment. He said that environmental law often takes the form of command-and-control public regulation that places duties on people not to harm other people through the environment.
To reach such goals with the law, people need to know about government and the processes needed to make and enforce laws.
“You have to think about the institutions and who has the authority to do what,” he said. “As an example, the most powerful entity we have in environmental law is the state. It has no limitations on the scope of authority that it can wield other than individual constitutional rights or maybe some federal legislation that could sometimes what we call ‘preempt’ state authority.”
Yet much of U.S. environmental law is federal law and this can complicate matters, he said. State or local law may not clearly address a specific problem, but the federal government has only specific, and to some extent narrow, powers.
Most of the United States’ premiere environmental laws were created in the 1960s and 1970s and haven’t changed much since then, he said. The Clean Water Act, for instance, was created following a series of fires on the Cuyahoga River in Ohio. He said the act was written to deal with sources of pollution significant at the time and it reflected federal authority. Today, terms such as “point source,” “discharge” and “waters of the United States” do not fill well with current wetlands preservation and complex hydrologic interactions, he said.
“We’re trying to shoehorn all of these policy goals into this really old piece of law that doesn’t fit,” he said. “So, that’s one that we’ve got to change, but we can’t. We’re just at this deadlock of policymaking.”
He said he is unsure what it will take to change the Clean Water Act since it took river fires to get the act established. When asked what a significant catalyst might be, he suggested a public health emergency.
“We’re going to need dead people,” he said. “We’re going to need cancer. We’re going to need the public health impacts to be front and center in order to make any of these sorts of changes.”
On a local level, he spoke about the challenges associated with nitrate contamination in the Ogallala aquifer near York, Nebraska.
“Tons and tons and tons over decades and decades and decades of artificial fertilizer have been applied to that soil, and [nitrate from the fertilizer is] leaching and it’s in the queue and it’s going to be a mess,” he said.
This problem exists within the boundaries of the Upper Big Blue Natural Resources District, and Natural Resource Districts in Nebraska are charged with dealing with such problems. However, Schutz said some of the problem could be attributed to federal policies and law.
He said the U.S. government wanted to keep farmers on the land in the 1920s and 1930s but growing crops in places like the Upper Big Blue NRD can be risky. The government developed subsidies and the federal crop insurance program and others. As production grew, excess produce was exported.
“In pursuing these goals of increasing production, maintaining farm income, and maintaining cheap food prices, very seldom did we seriously consider the ramifications of the production methods on our resource base,” Schutz said. “We made these at federal and international scales without any consideration of what was going to happen to the aquifer in York County.”
Resolving such problems is “very, very difficult,” Schutz said.
Schutz grew up in Nebraska and touted it as a good place to learn about law and the environment.
“Nebraska is such an interesting place to study, both in environmental law and all of the stuff you guys do,” he told NRT students. “It’s just so diverse from west to east. It makes us a laboratory for other places, and maybe we can–that was the Water for Food idea–that we can do things here that would be interesting to other folks.”
For all of his self-proclaimed darkness, Schutz showed glimmers of optimism when speaking about the future of the law profession.
“As long as there are humans, there will be conflict and there will be mistakes and there will be accountability, and that’s our bread and butter,” he said. “That’s all we’re trying to do is help people resolve the conflicts they have with one another.”
— Ronica Stromberg, National Research Traineeship Program Coordinator