HOW ‘GREEN’ LAWYERS CAN HELP GREEN BUILDERS
A Lawyer’s Perspective following the 2018 Alberta Sustainable Building Symposium
Written by: Jacob Marchel
A SURPRISING QUESTION
In early October I was in Calgary attending the 2018 Alberta Sustainable Building Symposium (“ASBS”), hosted by the Canada Green Building Council (“CaGBC”). I attended as an exhibitor on behalf of Meadows Law, the law firm I work for in Edmonton, Alberta, that specializes in, among other areas, environmental law. I was eager to attend, both for my own education, but also to seek out industry participants, i.e. ‘green‘ builders – that might occasionally find themselves in need of our help.
While the focus of my attendance was educational, what really surprised me in discussions with other participants was that – aside from “who are you?” and “what do you do?” – the question most asked of me was “how can an environmental lawyer actually help me?” So, recognizing that each client’s needs will be a bit different, here are some thoughts about how I think environmental lawyers can generally be useful to the participants in the green building industry.
CONSULTING EXPERTS
Presumably, in green building (if not all construction) a company employs or consults with any number of experts to help them understand, explain, or manage various complex environmental issues. A chemist may tell you how the contaminants you release during construction in the air or water will (or will not) break down. A hydro-geologist or geo-technical engineer may tell you how the groundwater flow and soil stability could affect how you build in some locations. A sound engineer may predict how much impact your construction noise may have in a residential area. Architects may suggest the best LEED (or WELL) certified materials or designs for better energy efficiency. A biologist may advise on how your project could impact native species in the surrounding ecosystems. The list of these experts and the services they provide are extensive, and any one of these advisors could be the key to the success of your company’s project/operations. The list of important advisors can, and should, include environmental lawyers.
HOW ENVIRONMENTAL LAWYERS HELP
So, the short answer is “they can help with a lot of things.” The longer answer is that, in the context of green building, an environmental lawyer can help you determine your rights and obligations arising from all manner of environmental regulation. In particular, your lawyer should be able to provide information and guidance on (among other things):
Obtaining regulatory approvals or operating licences (e.g. from Alberta Environment and Parks or other relevant regulators, negotiating terms and conditions with regulators, conducting corporate due diligence, developing alternative compliance options, etc.);
Participating in Environmental Site Assessments (e.g. reviewing Phase I / Phase II reports, consultant selection and tendering, reporting and sharing ESA results, etc.);
Meeting obligations with land use planning and development, remediation and reclamation requirements for brownfields or contaminated land, and/or obtaining remediation certificates (for example, your advisor should know what changed when Alberta’s remediation certificate program was amended in June 2018?);
Designing or updating your company’s operational and regulatory compliance policies to prevent regulatory offence(s) (e.g. providing input and auditing of your Environmental Management System, satisfying complicated building codes and ever-changing regulations, etc.);
Defending you against regulatory prosecutions or appealing orders, approvals or other regulatory directions (e.g. they can be municipal, provincial, or federal);
Structuring transactions to address environmental liabilities and risks (e.g. allocating liability for historical environmental liabilities or setting aside funds to deal with future regulatory risks);
Preparing for an environmental compliance or other regulatory audit; or
Determining how to properly report discoveries of current or historical environmental impacts or potential environmental incidents.
If your company is contemplating a new project, talking to an environmental lawyer early on can be a small up-front cost that can save you bigger costs down the road. For example, developing a compliance policy in advance could be critically important to a green building company subsequently seeking to establish a due diligence defence when a breach of regulatory requirements occurs even though all reasonable care was taken. Many companies do not realize the importance of establishing a due diligence foundation before work starts until something built/manufactured accidentally leaks, breaks, etc. and causes environmental damage (e.g. water contamination), or a structure (e.g. high-rise, wind farm, etc.) they build causes the death of a flock of migratory birds, etc. – and they find themselves facing a lawsuit for that damage/harm. Demonstrating that everything that could reasonably be done to make sure that the incident did not happen could include showing that a compliance plan, supported by the advice of an environmental lawyer, was in place prior to doing the work.
PROTECTING YOUR BRAND – STAYING ‘GREEN’ UNDER THE LAW
Presumably, for green builders in particular, not violating any environmental laws or regulations is a significant part of your company’s brand. Imagine that your company promotes how it has obtained a top LEED or WELL design award, but then later it comes out that something the company did or failed to do on the project, resulted in an offence. Seeking the advice of an environmental lawyer to identify potential compliance issues early on, or to support a company once a regulatory breach has taken place, can help prevent or minimize the lasting damage to the reputation of a company and its employees.
In recent years, many companies claiming to be “green” have been subject to regulatory actions challenging their claims of environmental benefits. Liability for “greenwashing” as merely a marketing strategy without merit can also do lasting damage to an otherwise reputable company. An environmental lawyer can assist by testing claims and assessing whether a company is aware of, and meeting, the applicable regulatory requirements.
NAVIGATING A COMPLEX AND CHANGING ENVIRONMENT
Ultimately, it is useful to think of an environmental lawyer as a navigator or advisor for all the current, changing, and growing number of laws and regulations in the “green” sphere that everyone needs (or will need) to follow. If your company is starting a new build project, it’s important to ask yourself (or those in charge) whether you are well-positioned to know and comply with all the applicable legal/regulatory requirements. If you’re not confident that you have the awareness needed to ensure compliance, contacting an environmental lawyer for some advice may be an essential first step. Talking to an environmental lawyer before legal risk arises, can be one of the best decisions you make to protect yourself (and your company) from legal liability, avoidable financial costs, and to preserve your company’s reputation as being truly green.
Photo Credit - Public Domain - pexels-photo-613508 - CQF-Avocat