Time To Rename “Environmental” Law

The label is misleading and inaccurate

Every year in October, the California State Bar Environmental Law Section hosts a three-day conference on the outskirts of Yosemite, attracting prominent lawyers, advocates, and public officials from all over the state. This past weekend, at the traditional Saturday night banquet, famed climate activist Bill McKibben was the speaker. Unfortunately at the last minute he couldn’t attend in person, but in his videotaped remarks, he commented on all the good things California is doing on the environment. However, he urged attendees to stop the state from taking a leading role in fracking, the destructive process of harvesting and then burning the last drops of oil and gasps of natural gas from underground rock.

McKibben could be forgiven for not realizing that there were a number of lawyers in the room who are dedicated to helping their oil and gas clients frack to their hearts’ content. After all, it is an “environmental” law conference, right? McKibben is not the first outside speaker at the conference to make that mistake. And he’s probably not the first person to hear someone introduce themselves as an environmental lawyer and assume that he or she is working to protect the environment, when in fact that person is working with clients who are hurting the environment.

Is this an "environmental" activity?
Is this an “environmental” activity?

The problem is the terminology. “Environmental” sounds benign, and it’s closely linked to “environmentalism,” which people associate as a movement to protect the environment. But calling a lawyer dedicated to helping their client frack (or pollute generally or stop environmentally beneficial projects) is like calling Kim Jong Un an expert in human rights law and policy.

Given the dynamic, it’s time to change the name of this legal field to a term that is less value-laden and misleading. My pick would be to rename it “resources” law. While many lawyers in the field associate “resources” with only one aspect of the practice, namely the forest and mineral-type part of it, there’s no reason the term needs to be defined so narrowly. Ultimately, everyone in this profession is fighting over natural resources, whether it’s air, land, chemicals, or water. And members of the general public would not assume that a “resources” attorney is either doing protective or destructive work when it comes to the environment.

I don’t mean to propose this change out of a sense of righteousness. After all, I fill up my gas car at Chevron; my carbon footprint is probably bigger than most people on Earth. And the law schools where I work are not immune to this criticism: our “environmental” law courses are training a significant number of students to counsel clients involved in damaging the environment.

But I believe words matter and that we have an obligation to be honest with the public and Bill McKibbens of the world — let alone ourselves. After all, when I get my gas at Chevron, I don’t tell everyone that I’m engaging in an “environmental” activity. And lawyers should stop pretending the same about what happens in this field.

Reader Comments

14 Replies to “Time To Rename “Environmental” Law”

  1. Thank you Ethan. Yes words matter and another title that gives a hugely misleading impression is “working landscape” to refer to farm and ranch lands and to what are essentially timber plantations. It’s a term meant to infer that these lands are more valuable due to the commercial exploitation than those lazy non-working natural landscapes, which produce nothing of real value. It’s a shame that so many have unwittingly accepted this term, even to the point of allowing it into statute. In many cases “over-worked landscape” would be more fitting.

  2. Provocative thoughts, but based on a one dimensional view of what most “environmental” lawyers do. Having practiced at EPA and in two private firms, I have to say that I think I advanced progressive environmental goals almost as much in practice as I did at the agency. For many firms, the goal is to run their business while complying with the law and environmental lawyers can do much to help them harmonize their operations with environmental values. In other firms the lawyer can serve as a partner with the EHS managers to inculcate such values into decision making and operations. It is true that some, perhaps many, firms are bad actors in terms of the environment. But it is hyperbolic to characterize all private side environmental lawyers as not worthy of describing themselves as practitioners in environmental law. Are we are misleading the public or students by talking about what the private bar does as environmental law? I would give the public and our students a bit more credit; I think they understand that environmental law and environmental issues are not black and white. And at least for our students part of our job is to help them understand the implications of that as a policy matter and as a professional matter.

    1. I’m sure we can all acknowledge that private-side environmental lawyers do some great work on behalf of the environment, and I’m glad good attorneys are there to help their clients comply with the law. But it is also true that a lot of environmentally destructive work goes on, enabled by talented attorneys. So my point is: why not use a neutral term to describe the profession?

  3. I’m not sold. From Merriam-Webster Online:

    -Resource: something that a country has and can use to increase its wealth; a supply of something (such as money) that someone has and can use when it is needed; a place or thing that provides something useful.

    -Environment: the conditions that surround someone or something; the conditions and influences that affect the growth, health, progress, etc., of someone or something.

    “Resources” feels both overbroad and too narrow. It would seem to include especially tax and finance law, and other “unnatural” resources. And these definitions at least seem awfully focused on the “use” element, (albeit, the site of the Yosemite conference, as I was reminded this weekend, is in fact a “Land of Many Uses”). I haven’t used any snail darters lately.

    “Environmental” may not get at everything either, but I don’t think it’s disingenuous on account of the “environmentalist” trigger. E.g., sex/sexist; race/racist; plural/pluralist. Putting aside the Kim Jong Un analogy….

    1. I’m open to other naming ideas if you have any, although I personally like the sound and connotation of “resources.” I do think the public often gets confused, if not misled, by the term “environmental,” in a way they would not with the other examples you cite.

  4. As one who, as a lawyer for The Conservation Foundation (since merged into WWF) in the mid to late 1960s, and instigator of the first environmental law conference (published as Law and the Environment, 1969) it became interesting to see how quickly “environmental” — which we thought to be an advanced concept — became adopted by the lawyers representing polluters, who became well-versed in the laws that public interest folk got passed in the late 60s and early 1970s. We had eschewed the label of “conservation” as outdated. But now, perhaps, “conservation” might be a better label, even though its association with “wise use” could be abused.

  5. Sorry to pile on, Ethan, but I’m not persuaded either. First, the term “environmental law” refers to a field, not a stance. The field necessarily includes attorneys on all sides who practice in that area. The point of naming the field is to provide a term that describes the area of law, not the specifics of the practice of each lawyer. Of course, most environmental lawyers are in the private sector, working on matters that involve interpretation of our environmental laws and advocacy about how they’re applied. They are still working with environmental laws. (Similarly, many tax lawyers help their clients to minimize their taxes, and most antitrust lawyers at some point in their careers argue for looser interpretation of antitrust laws. And of course family lawyers mostly address breaking up of families. Criminal lawyers sometimes prosecute or represent people who turn out to be innocent. Perhaps even stranger, most civil litigators spend most of their time negotiating or setting themselves up to negotiate, and some of them aren’t very civil either.)

    “Environmental law” is a reasonable label – though certainly not the only possible label – for the laws that environmental lawyers interpret. “Resource law” blurs distinctions that are important from the perspective of lawyers and clients. In the intermountain west in particular, lawyers who practice mining and forestry law and other public lands law are in a “natural resources law” practice. Collapsing these practices into one area provides less, not more, clarity to the people who actually engage with these lawyers.

    I guess overall, I’m not a prescriptivist when it comes to the meanings of words. People in the profession use “environmental law” the way they use it, and all the lawyers and clients know what the term means. The fact that some people outside the profession might be confused doesn’t seem to me to be important. When I was a kid, I thought engineers just drove trains.

    1. I appreciate the thoughts, but I guess I see the perception problem as more significant than you do. In the other fields you cite, such as tax, family, and criminal law, there is not a strong public association with the people working in those fields and the sides of the typical disputes they’re likely to be on. If I go to a tax conference, for example, I’m not going to assume that everyone there is working to make the tax code more progressive or regressive. But at an environmental law conference, it’s much easier to make the mistake that everyone there must be pro-environment. It may even be by design, knowing industry penchant for deliberately co-opting environmental terms (recall the “Clear Skies Initiative”).

      I also think the perception problem may not not just lie outside of the field.

      As for blurring distinctions with the renaming, I agree that my preferred term of “resources” would require clarifying the subfield of “natural resources” law. But on balance, I don’t think it would require a huge adjustment. The word “natural” as a modifier might even be sufficient enough to distinguish the two.

  6. I was disappointed and insulted by this comment that demeans the role of environmental lawyers who represent industry or otherwise happen to take positions on issue that do not jibe with the opinions of environmental activists. Our role as lawyers is to present the interests of our clients, and if we can do so in a way that is consistent with what activists consider “protective” of the environment, so be it. If our clients position does not reflect the activists’ view, however, that does not make us less “environmental” lawyers. The comparison to North Korean “human rights” lawyers is a cheap and undeserved shot. Most of the lawyers I know who represent industry help their clients to become more, rather than less, environmentally protective, and most also have represented the so-called “environmental” side in their careers. I, for one was the U.S. Justice Department lawyer who first led the government’s action against Hooker Chemicals at the Love Canal and during my career have represented a variety of professedly pro-environmental organizations, including the Environmental Defense Fund, the Audubon Society, and the NRDC. I am proud to state that I am an “environmental” lawyer and that I am not so narrow minded as to characterize those whom I may happen to oppose on client matters as “tree-huggers” or other terms filled with elitist derision. I regret that my skin is not thicker, but I could not let this gratuitous slander go by without comment.

    1. Your comment proves my point that the work of lawyers in this field is all over the map when it comes to its actual effect on the environment. So again, why not use a value-neutral term to describe that work?

      1. There is nothing in my comment to support your suggestion that “environmental law” does not encompass advocates of various points of view. The efforts of those of us who either regularly or from time to time represent industrial clients results in environmental improvement to as much an extent, if not more so, than the lawyers who represent public interest environmental activist groups. If this is the kind of reasoning you express in the classroom or otherwise present to law students I question your competence to have an appointment at UC and UCLA law schools. As a UCLA and Boalt alum, this is not a matter of small concern to me. I hope (as i anticipate you will as well) that this will be my last comment on the subject.

        1. Please allow me to take a step back from my rather intemperate last reply— it is not your competence I question, but your judgment and apparent unwillingness to acknowledge the legitimacy of an opposing point of view. Perhaps we’ll be able to meet one day and have a pleasant face-to-face discussion of our differing opinions. 🙂

          1. I would welcome it Barry. I meant my reply to your original comment to be an acknowledgement of the validity of your perspective, but it was clumsy. My apologies. I certainly agree that many private-side environmental lawyers do excellent work on behalf of the environment. My original post should have acknowledged as much. It was not meant to be a broad brush “private=bad, public interest=good,” although I recognize it played into that longstanding tension and could be (mis)interpreted that way. My point is that the term to describe the entire field (including the work of both public and private attorneys) is value-laden, and that we should all consider a name change to something that doesn’t imply a pro-environmental message or mantle upon all the work that goes on in it.

  7. Of course, in the (apparently copyrighted) phrase “Environmental Law Conference at Yosemite,” “environmental” is hardly the most misleading word.

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About Ethan

Ethan Elkind

Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…

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