What is Environmental Law?

Dr. Mark J. Bamberger, Esq., Chairperson
DBA Environmental Law Committee

Tree Hugger! Bleeding-heart Liberal! Animal Liberationist! It goes on and on. Many people have certain perceptions of those of us who practice in the area of environmental law. Coming from a scientific and environmental background, this author has heard them all. Although at times true, these monikers are often misleading. In many cases, environmental law practitioners also practice in other areas. In fact environmental issues often impinge on other areas of law; including property, contracts, corporate law, bankruptcy, family law, estate planning, and the environmental subset of animal law, to name a few.

There are environmental issues everywhere. It is not hard to find them. In the corporate world, the areas of property acquisitions and mergers commonly have to deal with potentially contaminated real estate. Before a bank gives a loan (especially in the current economy), they have to know that the property does not have unreasonable environmental concerns, such as contaminated waste, groundwater, or residual air pollution. Such work is typically accomplished through completion of a Step I site assessment. If concerns arise, further Step II and possible remedial Step III work might be indicated before the property is certified as viable for purchase.

In many instances, the corporate bankruptcies that my law firm complete have environmental concerns related to the industry being sold or transferred. In some cases, detailed site and record inspections are necessary to delve into the history of the subject parcel; be it a former factory, gas station, storage facility, or the like. Even in personal Chapter 7 or 13 bankruptcies, there may have been some business concern, such as a dry cleaner, small manufacturing plant, or a car mechanic’s garage that must be scrutinized for potential environmental implications. At times this is more a practice in history than in legal analysis.2

If a contract is to be signed for property, similar concerns often arise. It takes a trained environmental consultant or attorney to identify these often-hidden hazards. Even if no environmental waste issues are involved, partners going into a business venture have to be wary of the potential waste production aspects of their business. Storage of even a small amount of “hazardous waste”3, in and of itself, can trigger regulatory inspections and reporting under massive regulatory programs at the state and/or federal level.

Near and dear to this author’s heart is the field of animal law. The recent Exotic Animal Control Act4 is a clear and recent example here in Ohio of how maintenance of an animal can trigger environmental oversight; as well it should in many cases. Here, simple ownership of one or a small number of so-called exotic animals can trigger expensive EACA registration, licensing, and inspection mandates. Animal rescue organizations are dealing with these new regulations.5 Although this issue does not infringe upon ownership of most house pets such as dogs, cats, most fish, and most birds, other pets can trigger State oversight. If that pet or animal is tied to a custody or estate dispute, further complications are sure to arise.

As for estate planning and family law, in both of these broad and complex practice universes, environmental issues can come into play. Who gets the pet in the divorce? Who takes care of the animal/s in an estate plan? These too can be considered as environmentally-related issues. Although the family law attorney of estate planner might not and typically does not have environmental training, some simple consideration of these issues can be important. Recently, the Ohio Legislation commenced debate of HB243, which would allow domestic partners to add their pets into protective orders. A significant number of abused partners will not leave the danger zone for fear that his or her pet or companion animal will be abused or killed should he or she leave. The Ohio State Bar Association’s Animal Law Committee has weighed in with their support of this bill.6 So here again, in the presumed non-aligned area of family law, environmental aspects can be involved.

In conclusion, it is a shorter discussion to discuss what practices of law do not impinge upon environmental issues that those that do. A simple understanding of the potential conflicts with environmental law and how to deal with them can add a tool to the general practitioner’s tool belt in properly counseling and best representing their client/s.7

 

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1 Prior to becoming a general practice attorney, this author took a B.A. in geology, an M.S. in geomorphology (geology), and then a Ph.D. in environmental science and political policy. He then taught college part-time for 22 years as an adjunct professor of geology and worked and taught in the fields of groundwater geochemistry and hazardous waste migration and remediation.

2 One perfect example of this a property acquisition contract in Troy, Ohio in which this author was involved years back. Upon detailed historical analysis we identified that a gas station resided on a portion of the acquired parcel back in the 1930’s. This is always ominous news for the purchaser. Low and behold, buried gas tanks and dramatic groundwater contamination was found, even after all those years. Happily, an in-situ bioremediation program was developed that solved the problem with little surficial evidence, but not without many thousands spent and months of delay in the store opening.

3 The term “hazardous waste” can be defined differently based under which the regulatory regime a site is based.

4 Ohio has been late to the party relative to regulation of “exotic animals”. More information can be found on the Exotic Animal Control Act on-line. See for example Bamberger, M.J., 2013, The Exotic Animal Control Act: The Tension Inherent in Animal Law, http://bambergerlaw.com/animal-law-2/the-exotic-animal-control-law-the-tension-inherent-in-animal-law/ and http://thedailywh.at/2011/10/19/follow-up-of-the-day-sad-end-for-zanesvilles-wild-animals/. The environmental community is split on its value. Some believe that it is necessary to protect animals in private zoos and from what happened in Zanesville, Ohio in October of 2011, which triggered this legislation. Others believe it harms the private ownership of a small number of such animals as pets due to prohibitively high prices for registration, training, licensing, inspection, etc. Still others believe that these types of animals should never be owned privately or be in captivity at all. This author sees all sides as valid.

5 Although right across the border in Brookville, Indiana, one example of such animal rescue challenges are found at the Wolf Creek Wolf Rescue and Sanctuary. See wolfcreekhabitat.org for more information. Wolf Creek houses and protects more than 30 wolves from execution in the Southwestern Ohio/Southeastern Indiana region.

6 This author is the current Chairperson of this committee. The Ohio State Bar Association has yet to officially support HB243.

7 Dr. Bamberger has TMBC law offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio. He can be reached via www.bambergerlaw.com, his email at mark@bambergerlaw.com, or his office number at 877.644.8181.

 

1 Comment

  • I did not realize that names like “tree hugger” and “animal liberationist” were referring to people who practice environmental law. I have heard those terms before, but never put the two and two together. I think environmental law is a great thing and is something that should be more widely admired. Thanks for sharing more about what you do and how it works. This was very insightful to read.

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