The first three words of the abstract of Professor Dave Owen’s new article read, “Conventional wisdom assumes…” Professor Owen specializes in analyzing to what extent what everyone knows about a given subject in Environmental Law finds any basis in reality.
In the article, titled “Consultants, the Environment, and the Law” and recently published in Arizona Law Review, Professor Owen takes what we all know—that business interests are always at odds with governmental (particularly environmental) regulation—and examines the regulated/regulator relationship through examples from the lucrative and extensive environmental-consultant industry. These consultants help regulated entities comply with the law, but also help craft the law by developing “standards of practice within regulated fields, sometimes in ways that gradually harden into legal obligations.”
Professor Owen looks at two particular subfields of environmental consulting: waste-site cleanup regulation in Massachusetts, where government has delegated compliance monitoring to over 400 licensed private businesses, and consultants who facilitate business compliance with complicated California Environmental Quality Act (CEQA) mandates. Analyzing primary documents and conducting extensive interviews, Professor Owen finds that consultants perform valuable roles as “practical environmentalists,” deftly translating and serving the needs of both the regulators and the regulated. In so doing, they promote the health of the human and nonhuman communities—that is, they further the goals of environmental law.
This does not mean that government bureaucrats should turn over all matters of compliance to private industry. A longstanding strain of public-choice theory suggests that businesses will inevitably twist regulation and corrupt regulators to serve their own focused ends. As some critics fear, in various realms, private consultants wishing to remain viable in business will be inclined to kowtow to the needs of their clients and will subvert the goals of the regulations in their quest for profit. But in the situations Professor Owen examines, the environmental consultants share the societal goals underlying environmental protection and benefit financially from robust environmental regulations. The consultants’ values drive them to serve the primary goals of the regulations they are helping to enforce and buttress the efficacy of those regulations in the process.
As businesspersons on the front line of how environmental laws play out on the (metaphorical and literal) ground, consultants also play a role in advising lawmakers on how to improve these laws. The cynic (or the realist) may argue that such consultants could just become captured mouthpieces of their clients, serving to weaken the laws to their clients’ advantage. But in the contexts he examines, Professor Owen finds the consultants engaged in “quiet, measured communication and gentle activism, largely in favor of incremental improvements of the status quo.”
As in other works he has penned, Professor Owen problematizes conventional wisdom by doing what any scholar should do: examining multiple forms of evidence and analyzing that evidence closely. Obviously, privatizing all regulatory responsibilities will not always serve the interests of the public and the planet. But, at least in these two case studies, environmental consultants seem to act as trusted intermediaries between serving the interests of their clients (and their own profits) and furthering the values of the environmental-protection laws they are paid to execute.