R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.docPrinted On: 2/10/0 7:25:08 PM ARTICLES Quiz on Ethics in Environmental Law (Multiple Choice) By Gregor I. McGregor, Esq.* 1. WHAT IS THE ENVIRONMENTAL ETHIC? a. I don’t know, but I’ll recognize it when I see it. b. Changing the way we behave as individuals, businesses, and society at large in order to safeguard what Eugene Odum calls the “life support sys- tem,” meaning the environment, organisms, processes, and resources inter- acting to provide our physical necessities, including food production, water recycling, waste assimilation, and air purification. c. What Aldo Leopold wrote in his essay entitled “The Land Ethic”: “[A] thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” d. The notion that we are stewards of the land, water, and air, and must act responsibly toward them. e. The view that Homo sapiens is a member of nature rather than conqueror of it. * * Mr. McGregor is founding partner of the Boston environmental law firm, McGregor & Associates. The lawyers and environmental planners in the firm handle all aspects of federal, state and local environmental law, real estate, and litigation throughout New England, including zoning and subdivision control, real estate transactions, wetlands and floodplain regulation, easements and conservation restrictions, hazardous waste and Superfund liability, and eminent domain as well as “regulatory” takings. 1-647 R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.docPrinted On: 2/10/0 7:25:11 PM 1-648 NEW ENGLAND LAW REVIEW [Vol. 33:3 2. ENVIRONMENTAL JUSTICE—Civil rights groups, advocating what they call “environmental justice,” complain that the burden of pollution from past contamination and proposed projects falls disproportionately on poor and minority populations. Sometimes this problem is called “environmental racism.” Do you think that this claim is: a. Dead wrong. b. A bogus complaint for which the Clinton Administration (with great fanfare) fashioned some burdensome regulatory requirements to solve a problem that does not exist. c. A legitimate complaint about a systemic problem which deserves a comprehensive, society-wide set of solutions throughout the public and private sectors, probably with an amendment to the Constitution. d. A legitimate observation needing reform of EPA and state environmental agency permitting and cleanup priorities, for which President Clinton’s Executive Order (telling all federal agencies to reduce environmental injustices) has been appropriate and effective. e. A proper criticism only in the context of individual decisions about specific projects, not needing any program-wide reforms, but warranting an avenue for administrative complaints and court appeals in individual cases. 3. STATE OF THE WORLD—Around the world, millions of people are getting on the information highway with televisions, high-tech telephones and internet access, while many more millions remain without basic health needs including sewage disposal, clean water, basic medical care, and other key indicators, according to the 1998 WorldWatch Institute report. Do you feel that: a. This fact does not concern me one bit. b. This trend, even if it accentuates the differences between the rich and poor in many underdeveloped nations, has no ethical implications. c. This growth in telecommunications is a better indication of the health of the world than availability of basic sanitation. d. This has some basic truth but is an overstatement. e. This indicates a really bad situation. 4. BIOLOGICAL DIVERSITY—Endangered species loss can be viewed as a symptom of the tendency to convert more and more relatively natural ecosystems to intense human use. There are published statistics indicating that until the appearance of human society, only one extinction per one thousand years occurred, and that, by the end of this century, one species will be lost each hour. What do you think? R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.doc Printed On: 2/10/0 7:25:12 PM Spring, 1999] QUIZ 1-649 a. There are much more important things to worry about. b. We should repeal the Endangered Species Act, as there will be no catastrophic ecosystem breakdown in the worldwide biotic community, at least not so as to unreasonably affect human society. c. Let’s protect only those species which have a potential or present demonstrated dollar value to humans. d. We ought to preserve species, habitats, and ecosystems for the known value of ecological niches, relationships, adaptations, and the apparent benefit of nature itself creating greater diversity over time. e. We need to protect all nature for its holistic value to humans and its intrinsic worth, no matter what financial resources are needed. 5. ENVIRONMENTAL LAWYERS AND CONSULTANTS—The client retains an attorney on a contingent fee basis for representing it in a nuisance suit against a nearby industrial plant emitting noxious fumes. In order to prepare the case, the attorney recommends to the client that it retain an environmental consulting firm (which the attorney recommends routinely to clients, does business with frequently, and represents in an unrelated legal matter). The attorney reviews and revises a contract between client and consultant in which client will pay consultant for services rendered. Payment would be from any money recovered in the suit at trial or by settlement. If there is none, or if it is not enough, the attorney likely will end up paying the consulting bills, with little recourse against client. This raises the following ethical questions: a. None, lawyers and engineers don’t have any ethical limits. b. None, the contract the client voluntarily signs is what governs everything. c. The problem here is the inherent conflict of interest in a contingency case to try to reduce expenses, which could compromise effective pursuit of the claim. d. The problem here is the undisclosed relationship between the attorney and consultant which has not been disclosed to the client. e. The problem here is that attorneys and non-lawyers are not supposed to share legal fees; also, attorneys are supposed to recommend expert consultants and witnesses objectively and in good faith for the benefit of the client. 6. WASTE DISCLOSURE—An engineer and a lawyer work for a client who owns a large residential building. The client is currently under federal and state agency administrative orders to clean up hazardous waste, PCBs, lead paint, and asbestos, and the city is conducting a criminal investigation for possible violations of the municipal code. The engineer and lawyer walk through the property and find a new location of contamination unknown to the enforcement authorities, and they see that the asbestos is blowing around, outside the building, near a playground and school. On these facts: R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.docPrinted On: 2/10/0 7:25:11 PM 1-650 NEW ENGLAND LAW REVIEW [Vol. 33:3 a. Nobody has a legal duty to do anything under any circumstances. b. Nobody has a duty because of the doctrine of lawyer-client confidentiality and because the contract between client and engineer requires confidentiality. c. The lawyer has a duty but not the engineer. d. The engineer has a duty but not the lawyer. e. Both have duties to disclose the presence of all the new contamination and the blowing asbestos because it presents an imminent and substantial danger. 7. ECONOMIC ETHICS—The organization Friends of the Earth says that the global system of finance and economics is so structured that the rewards for doing the right thing are often missing. Many times taking action which protects natural areas and avoids air and water pollution will lose a company money or make it less competitive against firms not experiencing these costs. To provide rewards and incentives for pollution reduction and natural resource stewardship, we should do the following: a. Nothing, our economics and finances are fine the way they are now. b. Simply continue to ask people to take the morally right actions even if they will lose money. c. Reform the U.S. Tax Code, which is biased against businesses wanting to take environmentally progressive steps, because it emphasizes and rewards raw resource extraction of oil and minerals, penalizes pollution reduction and recycling, and subsidizes mining of lead, mercury, and asbestos which the rest of society spends money to cope with. d. Set new budget priorities in the United States, in which the federal government spends only two cents on the dollar for environmental protection, to reinforce environmental law enforcement at the federal and state levels so they are stable and adequate. e. Institute a global financial transactions tax in the global marketplace to slow the movement of speculative money around the world—money which tends to finance environmentally damaging, destabilizing projects and other investments. 8. INTERNATIONAL LAW—The United States is not alone in enacting environmental statutes and regulations—there are many different models. Each country tailors its laws to its own environmental, economic, social, and political needs and desires. What is needed now is: a. Give it up. R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.doc Printed On: 2/10/0 7:25:12 PM Spring, 1999] QUIZ 1-651 b. Set more lofty goals for most countries to subscribe to voluntarily. c. Enact an enforcement mechanism in each country for its existing laws. d. Sign better international treaties, conventions, and other contractual arrangements than exist now. e. Create a world-wide system of international environmental law with courts and agencies having comprehensive jurisdiction to set and enforce standards. 9. NEW ETHICAL STANDARDS—After all is said and done, right now, environmental ethics are still evolving, molded by cultural, social, and scientific factors. They have a rich literary heritage in Henry David Thoreau, Aldo Leopold, and Rachel Carson. Defining such ethics is difficult. They are values and, therefore, they are implicitly subjective. Because history and human institutions have demonstrated a lack of regard to nature, it makes sense to try to reach consensus on central principles for conduct (if not common beliefs). We do not have to read George Perkins Marsh, John Burroughs, and John Muir to figure out what conduct makes at least economic common sense, taking the long view as to what is in our enlightened self- interest. The view we need for all government, private sector, and individual decisions is that: a. An environmental ethic is nothing but a figment of the imagination. b. Pollution control and natural resource management is an acceptable topic for religious sermons and that’s about all. c. A human being has an ethical right to be a participant in its environment, to have that environment be clean, to be consulted in changes to that environment, and to seek legal redress if this right is violated. d. An understanding that, in an ecosystem, every action taken has consequences, and these results may be judged objectively as positive or negative based on the needs of society. e. People must act as stewards, not masters, of their domain, including real property they think they “own,” resources they have permits to “use,” and things they feel they have a right to “do.” 10. THE WHOLE SOLUTION—Deciding on a desirable environmental ethic, implementing it in practice, supporting it with science, fostering it with education, spreading it around the world, and evaluating and revising it as needed, does not appear to be easy or quick. We must, however, do something and start somewhere. We should: a. Start everywhere and do everything at once to make this happen. b. Start with government behavior because potential for quick change there is the greatest. R:\INTERNET\WEBPAGES\LAWREV\VOL33\VOL33-3\McQuiz.docPrinted On: 2/10/0 7:25:11 PM 1-652 NEW ENGLAND LAW REVIEW [Vol. 33:3 c. Start with corporate behavior because the problems there are the greatest. d. Start with individual behavior because the actions of people will follow dollars. e. Clean up the world tomorrow; today just do your room!
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