Transcript: Legal vs. Technical: Exploring the Roles of Environmental Experts
CLARICE: Good morning, everybody. And welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everyone. It’s been a minute. I’m Marisa Desautel, an environmental attorney in Rhode Island and Massachusetts.
CLARICE: And I’m Clarice, normally coming in with this week’s topic, but this week was sort of a group pick.
MARISA: Yes, it was.
CLARICE: Yeah.
MARISA: If there are listeners — I believe there are listeners out there.
CLARICE: I hope so.
MARISA: And when we first started the podcast we would customarily speak on a topic that had been raised through the course of the previous week and this is one of those topics that we just kind of never got to for whatever reason. The topic is what is the difference between an environmental attorney and an environmental consultant. Did I get that right?
CLARICE: Yeah. Nailed it.
MARISA: Okay. So if you had to answer the question, do you think you could? What’s the difference?
CLARICE: I would say — and this is may be an answer of semantics, but I would say your attorney is going to be the person who shows up in court for you if you had to go to court. Your attorney is going to be the person who is going to file the appropriate paperwork.
MARISA: Yeah.
CLARICE: And I wouldn’t necessarily expect my environmental attorney, even though they’re going to be versed in some of the terms, to necessarily know everything about the situation. Like an environmental attorney is obviously going to understand what a wetland is, what’s important about it, but I wouldn’t expect them to understand all of the measurements, read the scientific report. They might not understand that and I wouldn’t have that expectation of them. That’s what I think I would go to a consultant for. I think consultant and scientist.
MARISA: Yeah.
CLARICE: [inaudible] Am I wrong in that?
MARISA: That’s exactly right. No. No. No. Okay, everyone, thanks for listening.
CLARICE: Nice.
MARISA: Clarice nailed it.
CLARICE: In and out.
MARISA: An environmental attorney is not a technical expert necessarily. They can be, but generally speaking an environmental consultant is a scientist, someone that’s got expertise either through education or experience or both to opine, to give their opinion on —
[0:02:43] CLARICE: That’s a Scrabble word.
MARISA: — the technical merits of an environmental matter. Your environmental attorney will use the environmental consultant or expert through the course of a matter whether or not it’s in court to base their legal arguments. In my opinion and my experience, you always want an expert when you’re dealing with an environmental matter.
And through the course of my career, I’ve developed an awesome network of environmental experts that I trust and I know their work product, so if I get a new matter that comes in or a potential client that has an environmental matter the first thing I always do before I even take the case is send it over to the expert to say, just give me the quick 30-second read on this thing and they do. And so you can take that information and determine whether or not the potential client’s got a valid environmental argument.
CLARICE: And that was actually going to be my first question. Is it going to be beneficial to have an expert each and every time and I’m hearing yes. So then that goes to my question point of I heard you allude to the times that not every expert is always a scientist. Are there times where they’re not scientists or science based?
MARISA: Yes. For example, I don’t know that I would say someone that’s a professional engineer would be considered a scientist.
CLARICE: Okay.
MARISA: A lot of times environmental consultants are engineers, as well, because when you’re looking at, let’s say, a contaminated property you need a licensed engineer that can put together, again, technical site plans and can show existing conditions, proposed remediation, proposed environmental contamination response. An environmental attorney, unless they are also an engineer, is not going to be able to do that, so that’s another type of expert, science, engineering. I’m sure there’s others out there, but that’s what I’m thinking of right now.
CLARICE: Yeah. And from your perspective even though you’re not necessarily expected to sit and come up with the ideas at the scientist or the engineer are being hired to do, what is that relationship like for you? You know, you’ve hired this person to come in and create the reports, examine the case, do all that work, so you get all these numbers, these maps. You get all this information back. How is that relationship because now you’ve got to digest this all and either turn it into legalese, turn it into something that’s approachable for a board?
[0:06:08] MARISA: Right.
CLARICE: You kind of have to be the translator. What is that like for you? In one word I’m imagining hard.
MARISA: It can be hard, yeah, I mean, for sure. You’re looking at highly technical materials and I’m an idiot, so I look at it and I might understand 25 percent of it.
CLARICE: Oh, I think you’re selling yourself short. There were plenty of times I’d walk down the hall and I was like, I don’t even know what this symbol is. What unit of measurement is this.
MARISA: Yeah. Yeah. I have a science background and I was an environmental consultant before I went to law school, so I’m lucky in that regard that I have a little more knowledge than maybe your average attorney, but, yes, it’s hard. It can be intimidating. It can be confusing which is why I think it’s so important to only work with experts that you know, that you trust, that have the best reputation, especially with state agencies like CRMC and DEM.
When an application comes in — I’m using an application as an example. When a filing comes in to CRMC or DEM or any state agency, sometimes the letterhead is your first foot in the door and so I like to work with experts whose reputation immediately puts government at ease. They know the person’s not fudging anything. They know they can rely on the expert opinion that’s contained in whatever the filing is and there’s a level of trust that —
CLARICE: There’s that relationship.
MARISA: Yeah.
CLARICE: There’s that trust —
MARISA: Yeah. Relationship.
CLARICE: — and expectation.
MARISA: Yes. So, yeah. It’s hard, but because I trust my experts I just — the stuff that goes over my head, I know they know what they’re doing.
CLARICE: What advice would you have for somebody who’s looking for an expert? Is that something that’s the applicant’s responsibility to find, or is that the attorney’s responsibility to find, or do they work together?
MARISA: It depends. I’d say it’s probably —
CLARICE: The law school answer.
[0:08:51] MARISA: It’s probably 75 percent, 25 percent where someone will call the law firm and they’re starting from scratch. They don’t have an attorney. They don’t have an expert. They don’t have an engineer. They don’t have a surveyor. And those are my favorite because I can say, all right, let me put you in touch with so and so and so and so. Why don’t you meet with them and if you like them then this is the team. This is the team that we’re going to use going forward. The other 25 percent is when a client comes in and says, look, I’ve been working with this engineer, I’ve been working with this wetlands expert, whatever, I’d like to continue working with them. Fine. You know, the client is comfortable with them. That’s fine. So I guess it depends.
CLARICE: It can happen both ways. Okay. Cool.
MARISA: Yeah.
CLARICE: Is there anything else somebody should know about kind of picking this team, building this team, or making choices about having one, the other, or both?
MARISA: There are many different scenarios in which you need an attorney or you need a consultant or you need both and the example that I’m thinking of has to do with commercial property transactions. We had Mark Garon on a few episodes ago and he talked about environmental due diligence which is part of environmental banking. When you are applying for a loan to buy commercial property from a traditional lending institution, they follow a certain protocol called environmental due diligence where you have to hire an environmental consultant to conduct an analysis of the property to determine what the liabilities and risks are for the lender.
In those instances you don’t necessarily have an environmental attorney that’s involved. You can be a buyer and never talk an environmental attorney. You might just use the environmental consultant. The lender will tell you who to use because they’ve got a list of approved — again, people that they trust and they know their work product — approved consultants. Sometimes in those transactions I will get brought in or an environmental attorney will be brought in because there is a risk or liability that needs to be addressed through some kind of legal contract or other documentation for the transaction to go forward.
In those instances the client usually is the bank or the buyer or the seller, so I’m coming in as, you know, the 11th hour, usually and hurry up and figure this out yesterday kind of situation. It depends on who I’m representing, but sometimes it’s such a third-party situation that I might never even meet the client. I’m just dealing with the closing attorney or the contact at the lending institution and I come in and look at what the consultant did and what the issues are and what the bank’s requirements are and then try to craft something that solves the issue with risk and liability.
[0:12:56] CLARICE: It makes sense.
MARISA: [inaudible].
CLARICE: No. No. No. It makes sense, but the kind of curve ball at the end that you just might never ever meet the client, or that’s just not important to the process.
MARISA: Yeah.
CLARICE: That piece never crossed my mind.
MARISA: It’s business, you know.
CLARICE: It’s just get in, figure out this paperwork.
MARISA: Yeah. Yeah.
CLARICE: Figure out this issue.
MARISA: Transactional.
CLARICE: Yeah. I never thought of that piece. I guess I envisioned there would be at least some e-mail exchange, a phone call. I don’t know why I’m stuck on that.
MARISA: It’s funny, right?
CLARICE: Yeah.
MARISA: I mean, it’s a very cold type of transaction. Don’t get me wrong. I like doing them, but it’s very different from someone that calls and says, hey, I’ve got an issue with CRMC, or, hey, can you help me with this application for DEM. That’s a very kind of hands-on talk, lots of conversations every day, talking about stuff, e-mailing, texting, you name it. It’s very different.
CLARICE: Yeah. And I think that’s why I’m so surprised about it, especially even when I was talking last week or in a previous episode with Kerin about the idea of so much of the decision in the land use case that we talked about had to do around a fixture that was going into a nonconforming use of a lot.
MARISA: Right.
CLARICE: She kind of kept pulling me back and she was like, it’s not necessarily about the porch, but to the homeowner it was so personal. So to hear the comparison of, this is not personal whatsoever.
MARISA: Yeah.
CLARICE: Just fix the property.
MARISA: And residential zoning permitting is very different from commercial zoning permitting. People don’t have the same —
CLARICE: There’s no emotion.
MARISA: — necessarily the same emotions.
CLARICE: Yeah.
MARISA: You know, it’s business versus, it’s my house, you know.
CLARICE: Yes. Absolutely.
MARISA: Very different.
CLARICE: So there are times when you’re going to need an environmental attorney. There’s times when you’re going to need a consultant. There’s times when you’re not going to meet either of them apparently.
MARISA: That’s right.
CLARICE: Hopefully this was helpful if you’re ever in the need of either or you’re not sure if you’re going to need either. This could be a great jumping off point to begin that search.
MARISA: Give me a call. Yeah. And there are some cases, too, where I’ll get an e-mail or a phone call from someone and they say, I think I need an environmental attorney. And I’ll say, not yet, you need a consultant, you need an expert, why don’t you go to this person, talk to them, see what you can get down without having me involved, you know, because it’s not inexpensive. I’d say 50 percent of those people come back and say, okay, I got as far as I can get with the expert. I think I need your help at this point. You know, I need the contacts. I need you to go and appear before an agency, whatever the case may be. But sometimes I just get the call and refer it to a consultant.
[0:15:57] CLARICE: Yeah. And that’s another good point of being strategic about when to bring in each person.
MARISA: That’s right.
CLARICE: You don’t have to bring them in as a set. It’s not one or the other.
MARISA: That’s right.
CLARICE: You have to figure out what process works for you.
MARISA: Yeah.
CLARICE: All right.
MARISA: That’s it.
CLARICE: Well, if you have questions, concerns, or thoughts about it reach out to us. We are on the socials, Facebook, Instagram, X. I hate it.
MARISA: X.
CLARICE: YouTube. You can watch videos at Desautel Browning Law. You can send Marisa an e-mail with more detailed questions — don’t send me an e-mail about this. I don’t know anything — at Marisa@DesautelBrowningLaw.com.
MARISA: No.
CLARICE: No?
MARISA: No.
CLARICE: See, I don’t anyhow I didn’t know anything.
MARISA: info@DesautelBrowning.com.
CLARICE: Well, say it again for the folks at home.
MARISA: Marisa@DesautelBrowning.com.
CLARICE: See? Don’t send me an e-mail. Have a good one, everyone.
MARISA: Bye.
