Saturday, February 14, 2009

How to Avoid Litigation Over Environmental Matters

A lawsuit can be a very taxing ordeal: It can be financially draining, emotionally stressful and time consuming, even if the outcome is "successful." If the outcome is not successful, things are even worse. Most of us would wish to avoid a legal battle. Nonetheless, we live in a litigious society, and very often environmental disagreements are settled legally.

I am not a lawyer. But as an environmental consultant, I think that I have seen a thing or two and can comment on why I think lots of projects become legal cases, and why some don't. Here are some of my thoughts:

1. Don't stick your head in the sand. Sometimes when we see something bad coming, our instinct is to close our eyes. Maybe if we don't see it or acknowledge it, it will just go away by itself. That is often not the case. Rather than handling the problem, allowing it to go unhandled can make a bad situation worse. For environmental issues, this means that the actual environmental condition can become worse. In a case where other persons are involved, it also means that they feel like their concerns and well-being are being ignored. And to make you listen and respond, they think that they need to get angry, or threaten you with legal action. The solution: confront the issue head-on as soon as it comes up.

2. Don't try to "buy" your consultant. OK. So you have an environmental problem, and you've decided to face it head-on when you found out about it. Now, wouldn't it be great if you could just find a consultant whom you could tell what to do-that little or nothing is wrong? No. The way to handle the problem and the liability in it is to find out what it really is, and really fix it. Any consultant worth his or her salt will help you to do just that, and not alter the facts because they are inconvenient. Not to mention the ethical implications. The lesson to take home: Be willing to find out what the real situation is and really fix it.

3. You get what you pay for. When you call around for an environmental consultant, you may receive a wide range of cost estimates to conduct your investigation. You may receive $200 and $10,000 estimates. But, not all consultants are the same. The cheapest consultation may be poorly done, leaving you with a wrong impression and so make the matter worse in the end. The most expensive consultation may be way more than you need or can afford.

So how do you select the right consultant for you? One thing you can ask about is the credentials of the firm you are considering, as well as the credentials of the specific individual who will be involved in your project. How much experience do they have doing this kind of work? What is their education background: did they just graduate high school and take a three day class, or do they have a graduate degree in this field? What are their certifications? Some of the best-respected certifications in the environmental field include Certified Industrial Hygienist (CIH), Certified Safety Professional (CSP), Professional Engineer (PE), Registered Geologist (RG), Certified Indoor Environmental Consultant (CIEC), Certified Microbial Consultant (CMC) and Certified Asbestos Consultant (CAC). Of course, each of these certifications is specific to particular types of environmental issues.

The key point is, make sure that the consultant you hire has the education, credentials and experience necessary to do a good job on your project and can stand behind their work, especially if you suspect that there might be some liability involved. This way you have some certainty that your project will be done well, that you will receive a true picture of the situation, and sound advice about how to fix it. And, if your case ends up in court, you will feel more confident knowing that you didn't hire a fly-by-night operation.

4. Don't put a gag order on your consultant. As we all know from watching Law and Order and other legal dramas, most attorneys recommend that their clients keep their mouths shut in case of arrest. This doctrine typically extends to any legal matter, and usually includes keeping as much information "privileged and confidential" for as long as possible while building a case. That is why when attorneys are involved in one of my projects, they usually request that their I not share any information with any other parties. This strategy gives the attorney an advantage when a project is already headed for court, because it will then be at the attorney's discretion whether to share my findings. And if the findings don't assist the attorney, he doesn't have to share them.

However, applying the same principle to a project that is not yet headed for legal action is likely to cause more harm than good. If a situation involving multiple parties has not yet become legally adversarial, there is a good chance that some trust is left between the involved parties. A sure way to destroy that trust is to make one party feel like information he has stake in is being withheld from him. It is under these kinds of circumstances that hiring a consultant who is not only very good technically, but also an excellent communicator can make all the difference. Allowing the other party access to information, and making them feel like they have some freedom and control in the matter is key to allowing the two parties to reach an acceptable agreement. In summary: If your case has not yet gone legal, hire a consultant who is technically very good, but who is also excellent at communicating. And allow them the freedom to share information directly with the involved parties. This alone can diffuse an adversarial situation.

5. Sometimes, for one reason or another, one party's heart is already set on seeing their day in court. If that is the case, your best bet is to find a good attorney and an excellent consultant. If this is your situation, it is very important that you don't stick your head in the sand, don't "buy" your consultant, select a consultant with good credentials who will advise you accurately, and listen to your attorney.

If you have an environmental problem that you would like assessed accurately and fixed correctly, as painlessly as possible, contact us. We can get you on your way!


Hila Wright, MPH, CIH, CIEC
Indoor Air Quality Dept. Manager
Corporate Industrial Hygienist
Clark Seif Clark, Inc.

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