|Oregon State Bar Bulletin OCTOBER 2009|
Mention the subject of “sustainability” to Lewis & Clark professor Dan Rohlf, and he is apt to liken it to Nebraska’s Platte River — “a mile wide and a foot deep.”
Sustainability can seem abstract and difficult to pin down. Yet if you’re an attorney in Oregon you need only look for insight as far as ORS 184.421, which lies at the heart of current governmental operations and principles: “Sustainability” by Oregon statute means “using, developing and protecting resources in a manner that enables people to meet current needs and provides that future generations can also meet future needs, from the joint perspective of environmental, economic and community objectives.” This definition codifies several important themes, and captures a forward-looking appreciation for what we bequeath to future generations and a concern for social and environmental justice. In short, it enunciates a new “triple bottom line” of doing business: planet, people, profit.
Mired as the economy is in recession, the Pacific Northwest is blessed with perfect timing in the area of sustainability. Many believe sustainability will form the bedrock of the region’s developing creative economy, from renewable energy technology to green building design and construction to startup sustainable businesses. Gov. Ted Kulongoski is banking on Oregon’s share of the newly available relief money in part to leverage an economic plan titled “The Oregon Way.” And while some Oregon attorneys have always taken sustainable practices to heart in their personal and professional lives, increasingly a broader base of attorneys has begun to embrace the opportunities created when sustainability intersects with their own practices. In fact, as the nation enters a post-Wall Street economy, entirely new areas of legal practice are emerging even as old ones transform.
At first blush, sustainability appears to go against the traditional tides of our highly commercialized, consumer-oriented society. Yet companies see how sustainability distinguishes them from their peers, attracts highly qualified workers and inspires customer loyalty. Oregon has many examples of small- to mid-size businesses recognizing the virtues of sustainability. Keen Inc., a footwear manufacturer, exceeded its projected revenue in the first quarter of 2009, in no small part due to its sustainability branding. Northwest fast-food company Burgerville early on adopted local, organic vendors and health insurance for its low-wage workers and was able to compete with large name franchises pushing into its territory. Oregon-based New Seasons Market committed itself to community, promoting sustainable agriculture and maintaining a progressive workplace. These companies are not experimenting. They have consciously aligned themselves with sustainable values and have shown solid economic growth. The triple bottom line is changing the way many Oregonians do business. Yet, how has it affected the practice of law?
Legal Practice and Sustainability: How to Integrate Them?
Tonkon Torp and Stoel Rives have been visionaries in integrating sustainability into their practice groups, although each firm employs different models to similar effect.
Max Miller, co-chair of Tonkon Torp’s sustainability practice group, leads the firm’s environmental practice and chairs its sustainability committee. Many see Miller as one of the earliest adopters of sustainable legal practice in Portland. He dates his involvement from the late 1990s when he joined a discussion group sponsored by the Northwest Earth Institute, then led by its cofounder, Dick Roy, a retired Portland lawyer.
Tonkon Torp began its own discussion group in 1999, which eight years later evolved into its sustainability practice group. The group takes a holistic approach, combining the talents of attorneys in real estate, energy, construction, business practices and tax. Miller believes this collaborative approach attracts attention from prospective clients because it helps to create and validate a business client’s sustainability efforts.
Tonkin’s team approach also allows the firm to address the client’s other legal needs, but with knowledge and expertise suffused with a sustainability ethic, which he sees as an advantage over a conventional practice group. When a new client in the wind industry, for example, needs real estate work or a contracts attorney, Miller says he is able to say from the start, “Here is the team, all of them are members of our sustainability group. They like what you do and like supporting sustainable business.”
Stoel’s energy group, by comparison, relies on a vertically integrated model, offering a highly specialized practice group of sustainability-oriented lawyers who are first and foremost energy lawyers.
Bill Holmes, chair of Stoel’s energy and telecommunications practice group, says the firm’s history of integrating sustainability into its practice groups dates to the early ’90s, beginning with biothermal energy, then carbon offsets. It was part of the energy practice first and gradually expanded into business services, such as the development of clean technology and technology ventures groups. Now sustainability ranges all over the map within various practice groups. “It all interconnects seamlessly,” Holmes says. “You can’t just pluck one element of sustainability out; it implicates everything, it’s an integrated system. What you are really talking about is a focus on an industry and on a language sewn together by various areas of the law.”
An important aspect to Stoel’s sustainable legal practice, and an example of this seamlessness, is the firm’s own commitment to sustainable business practices. By walking the walk itself, Stoel can better advise its clients on what works and what doesn’t. “You get into a feedback loop,” Holmes says. “Your clients set an example for you, so you have to set an example for them. As we have grown, 60 percent of our energy load is now renewable through the purchase of green tags (renewable energy credits). When the firm commits to renewable energy, then you personally commit to it. It becomes viral and affects the way the firm operates its sustainability policy.”
Sustainability is a common thread through existing practices as well as a marketing tool, Holmes argues. Attorneys bring their own practice area expertise to the table in both models, but they also bring an added awareness for opportunities when applying sustainable principles. The issue then is not so much which model works better as it is how to properly educate attorneys so that they can creatively blend sustainability with their existing expertise.
For Ellen Grover of Karnopp Petersen in Bend, sustainability is a cultural ethic and an inherent part of her representation of the Warm Springs Tribes. The tribes have a long-term view toward all of their projects, whether building a new casino with high performance and educational attributes or constructing a biomass generator. In this context, sustainability is really just a new term for an age-old awareness. The tribes have always placed a high value on the responsible stewardship of natural resources, with an eye toward future generations, she says.
Bend law firms may not have formal activism in sustainability like Portland’s larger firms, but an attorney’s choice to practice in central Oregon more often than not is fueled by a desire to participate in and preserve the area’s natural beauty. Grover has found that Bend attorneys show a great deal of personal interest in sustainable management of natural resources and participate in the many environmental advocacy groups available, including the Oregon Natural Desert Association, Oregon Wild and the Deschutes Basin Land Trust.
Like other parts of Oregon, Bend is poised to become a leader in the siting of many forms of renewable energy, including geothermal, solar, hydro and wind energy generation, such that sustainability-oriented issues will have long term impact on the region.
As further evidence of sustainability’s widening geographic scope, Oregon’s Department of Energy recently opened a Hermiston field office, the first satellite office in the agency’s history. Diane Henkels, an attorney and senior policy analyst at ODOE’s Hermiston office, notes that the department has made a commitment to have a presence in eastern Oregon because of the rapidly multiplying opportunities for renewable energy projects in that region.
Is There Such a Thing as the Law of Sustainability?
Does sustainability law have a distinguishing set of traits? Miller says no.
“I don’t know that you could design a law school course on sustainability. You could design curriculum around it, but really it is more (about) knowing what sustainability issues are from a non-legal perspective and knowing how they fit into what lawyers do.” When navigating the waters of sustainability, the horizon sometimes disappears, but certain substantive legal practice areas likely will emerge as elements of sustainability law, Miller says. “Most people view sustainability practice as being green energy, wind power, solar power, biofuels and green buildings.”
Eric Grasberger, a partner at Stoel Rives in its construction and design practice group, estimates that 50 percent of his practice currently deals with high-performance buildings, also known as “LEED certified” and above. He warns clients against “green hypnosis,” where initial enthusiasm may blind a client to risks inherent to large development projects. Still, he enjoys watching projects emerge from a charrette, the collaborative process between design professionals and contractors, who necessarily must coordinate their efforts from the start to handle the sometimes complex interaction of LEED-qualified buildings.
Grasberger describes the development of high-performance buildings as a win-win situation — and as the kind of work that provides his own practice with greater meaning. Taken by the virtues of LEED construction practices, he was convinced to build a LEED-certified personal residence for himself. The experience has led to his well-versed education in the LEED process and allows him to apply that knowledge on behalf of clients.
Sustainability also intersects with less obvious practice areas. Stacey Mark chairs both the labor and employment group and the sustainable practice advisory group at Ater Wynne. She has written periodically on sustainable employment practices. “Green is a polarized word,” she says. “Sustainability is a bridge term between socially progressive values and business values. People don’t realize how intertwined these issues are and how it measurably affects the bottom line.
“There need to be better economic measures to show the value of some of these decisions,” Mark continues. “There are low-hanging fruit. There are only a handful of needs that are consistent with every employer — child care, health care issues, transportation issues, elder care issues. These are common problems that always need to be addressed first. Unfortunately, there is no buzz in the employment area even if there are lots of people looking to improve workplaces. Sustainability allows you to dig deeper by letting you look not only at how your business practices affect employment but also looking at its effect on your customers and the businesses that surround you. From these things you can draw a lot of benefits.”
Mark credits The Natural Step Program, another program initiated by Dick Roy, as having helped to educate and transform her awareness of sustainable practices, an education she now employs personally and professionally.
An awareness of sustainability often requires attorneys to frame legal disputes differently. For example, Grover, in her representation of the tribes, sees sustainability as cross-jurisdictional, allowing the law to change in response to circumstances. For example, the tribes she represents often seek to build consensus agreements rather than attacking through litigation. This was evident in their global settlement with PGE over the operation of the Pelton Dam on the Deschutes River; an agreement which has as a long-term goal the reintroduction of steelhead and Chinook salmon into the upper reaches of the Deschutes. Sustainable, long-term solutions are often built on solid relationships, something litigation has a tendency to erode. Using solid judgment to decide when to build consensus rather than sue is a tool lawyers that interested in sustainable solutions must develop.
Even as these and others attorneys creatively adapt sustainability to their own practices, however, it is still premature to say what form sustainability law may take in the future. Sustainability may not yet qualify as a stand-alone practice area. But evidence suggests that as more and more attorneys take the lessons of sustainability to heart, these practice areas will multiply and coalesce as society develops a mature sustainability-oriented economy.
Why Sustainability Practices Work
Quite simply, sustainability attracts new clients who are interested in an expanding market niche while meeting their existing clients’ needs. Entrepreneurs who incorporate a long-term sense of justice in their business plans, and who emphasize social objectives as much as profit, are seeking out firms and attorneys who share the same affinity. In turn, attorneys who employ sustainable practices have a deeper understanding of its virtues and can credibly speak of its efficiencies and profitability. In this manner, sustainability makes attorneys better business advisers for their own clients.
It also fits with Oregon’s social consciousness, now a national brand resulting from decades of forward-thinking processes such as the urban growth boundary and the bottle bill. As Holmes points out, Portland is one of only a handful of cities in the United States that has lowered its greenhouse gasses below 1990 levels; everyone else has gone up 20 percent.
Sustainability’s message also resonates with young lawyers. Standing at the start of their legal careers, they cannot ignore the world they are inheriting and the challenges that lie ahead. For firms unaccustomed to widespread attention from their recruiting efforts, it has proven to be an effective marketing tool. Young attorneys see how sustainability addresses the greatest challenge to justice our society has yet faced — justice for the future needs of the planet and its people.
Most importantly, firms that embrace sustainability in their mission statements, and who walk the walk in their business practices, find that it energizes attorneys and staff, who see the impact of the law on clients and society in a new and more meaningful way. This additional layer of relevance, which often becomes personal, leads to an often overlooked element of job satisfaction and pride in the workplace. Sustainability may be the closest that a private law firm comes to performing public interest work and getting paid.
The Bar’s Response
The Oregon State Bar has begun a far-ranging examination of how it might serve as a force to promote sustainability to the general membership. In 2007, at the urging of Oregon Lawyers for a Sustainable Future, the Board of Governors appointed a task force to define the bar’s relationship with sustainability. The OSB’s efforts are groundbreaking. Very few other state bars are tackling such nascent issues. The task force has held several meetings, and its first written report is due Oct. 31, 2009.
The task force has a specific charge to review and make recommendations relating to sustainability in five areas. The task force will:
n consider the bar’s internal operations and recommend a sustainability policy, consider carbon footprint analysis and whether the bar should assign responsibility to coordinate sustainability to staff;
n consider how to encourage sustainability with respect to Oregon attorneys, including CLE training and recognition of sustainability efforts within the bar;
n consider what ways sustainability should be integrated into the bar’s section and committee structure, and whether a permanent sustainability committee should be appointed, and consider whether the bar should be concerned about the rights and opportunities of future generations and, if so, how to institutionally incorporate those concerns;
n consider judicial and administrative use of energy and resources and make recommendations for their reduction and implementing sustainability standards; and
n develop a proposal for ways to promote sustainable practices in law firms.
The ABA has not taken a position on sustainability. Its section on environment and energy and resources has recently developed two initiatives related to sustainable law practices, including the Climate Challenge, designed to involve law offices in energy reduction. Three states — Oregon, Massachusetts and California —have accepted the challenge.
How to Get Involved and Learn More
Googling “sustainability” yields innumerable sources. Oregon attorneys, however, consistently reference several. Any attorney interested in learning more should start with Oregon Lawyers for a Sustainable Future (www.earthleaders.org/olsf/about_olsf) and The Natural Step (www.naturalstep.org). One groundbreaking publication with a Northwest business slant is a monthly magazine, Sustainable Industries (www.sustainableindustries.com). Many large firms now provide blogs. See www.sustainabilitylawblog.com and www.lawofrenewableenergy.com sponsored by Tonkon Torp and Stoel Rives, respectively.
Also, Oregon’s law schools are integrating sustainability into their curriculums, despite the lack of hard sources. To counter this, Prof. Robin Morris Collin of Willamette Law School, who has been teaching classes on sustainability for many years, completed Frameworks for the Future — Encyclopedia of Sustainability, 3 vols., (Greenwood Press forthcoming 2009). Its purpose is to provide a comprehensive, narrative overview of sustainability, which, though not a legal treatise per se, is designed to help educate lay people as well as attorneys on how to integrate environment, economy and equity into decision-making at every level. Professors Dan Rohlf and Amy Bushaw at Lewis & Clark Law School taught a course last spring on sustainability in law and business, in an effort to bridge the school’s environmental and business curriculums. Students actively seek out these classes, both those that are looking for public interest positions and those who see its benefits in the entrepreneurial world. As is often the case, law schools are attuned to developing trends and are now providing leadership.
Just as sustainability is finding its way into the standard fare of law school curriculum, the Obama administration is laying out a vision of America’s economic future that relies upon green jobs. This happenstance provides Oregon with an unprecedented opportunity to redefine itself and become a national model, particularly in the renewable energy sector that includes wind, solar and wave energy technologies, which are taking root locally.
Though lawyers would do well to observe these trends and educate themselves about sustainability, they may wonder where to begin. Winter, of the Crag Law Center, advises attorneys to put themselves into the community of people they are most interested in. For him, sustainability is a place of ferment and is not limited to larger firms. “Time and again,” he says, “when attorneys become sensitized to sustainable values, they create opportunities to apply them.”
ABOUT THE AUTHOR
Barry Woods is a sole practitioner who recently returned to Oregon after 10 years in a general business and litigation practice in Maine. He is developing a legal practice designed to meet the needs of sustainability-oriented clients. He can be contacted at firstname.lastname@example.org.