Your client is a manufacturer who has long outgrown its original four-story brick building that is now surrounded by a residential neighborhood. A nearby expressway and an exit and entrance ramp make the property attractive to a local real estate developer. After learning about the Governor’s State of the Union message targeting “brownfields” for redevelopment funds, your client calls you. They want you to find a good environmental consultant to help them work with the developer. The client explains that the environmental issues on the site have already been explored in a piece meal fashion by several previous environmental consultants.
You decide to call three environmental firms for written proposals, and receive what looks like a generic scope of work. One firm’s cost estimate concludes with the sentence, “We cannot guarantee the quoted cost due to the variability of site conditions and the wide range of volume of records for such projects.” Standard Terms and Conditions - crafted and typeset to make them appear to be unalterable - are attached to each proposal.
Selecting the Right Professional
Clients typically need to make a series of discreet decisions in an environmental project that culminate in an accommodation of a wide range of business, legal, and engineering solutions. To arrive at those solutions, you need a strong team in which the environmental consultant will play a leading role. Getting a good consultant is like dating: eventually you have to have a meeting. Written proposals, while useful, will not get the job done. This article discusses some of the issues which you need to talk about when you meet the prospective candidates, and how to work with the consultant that your client ultimately selects.
- Contractor or Consultant?
You begin with identifying the client’s goals. Do they want a contractor or a true consultant? Contractors perform tasks that are prescribed, organized and sometimes managed by the client. For example, if all the client needs is 5,000 cubic yards of dirt removed, the client can describe the job, write a purchase order, and bid the work. For such a job, you can locate several local firms that can do a dig and haul” project. - Roles and Responsibilities within a “One-Stop” Firm
On the other hand, a consultant provides content, expertise, knowledge, special skills and valuable contacts within the environmental community. Unlike the contractor, the consultant will emphasize results, and not activities. Many environmental firms offer both. These firms seek to combine a consultant’s substantive knowledge with a contractor’s experience in executing tasks which call for on-the-job discretion. Retaining such a "one-stop" firm requires special planning and counseling on the part of the attorney. What you are looking for in a full service environmental firm is a clear understanding of the different roles and responsibilities on an environmental project. - Integrated Legal and Engineering Solutions
This is where you will need to do some educational work. Some clients choose to use their own program manager to conceptualize the project and get management acceptance. Once that is accomplished, they want an environmental contractor to execute the plan. The problem is there is frequently a bias towards taking “final” actions. What many companies have learned from painful experience is that the “dig and haul” type of solutions almost never work and, in retrospect, a more global solution suggested by an environmental consultant not fettered by a preconceived program can look much more appealing. There are several case decisions in which well-meaning owners acquired additional liability due to the lack of a comprehensive plan integrated with sound environmental legal advice. Make sure that your environmental consulting firm knows all the facts before either the client or the consultant, in its eagerness to please, starts suggesting solutions. - Tolerance for Ambiguity
Once the client has thought through who it needs on its team and has developed an "open mind”, the next step is to interview the prospective candidate. One objective is to find consultants that can tolerate the level of ambiguity that most environmental projects contain. Real problems seldom come to you already organized. Basic issues such as “do we fight or settle?” and "do we take our time or move quickly?” have to wait resolution until a great deal of facts are in. Consultants need to demonstrate that they have gone through this process before. - Past Experience
While successful projects are the result of a team effort, few consultants can honestly claim that the solution which they have recommended is the one that saved the day. They should, however, at least point to few examples at which a client’s difficult problem was solved and the role that they played in that resolution. How they explain that role is a good indication of their willingness to lead as well as follow. - Make Sure the Project Leader Comes to the Interview
Make sure you have the right person at the table when you intervie an environmental firm because of their technical knowledge. Some people are good marketers, but have not actually worked on the type of project that your client envisions. Your candidates need to identify internally who will actually work on the project and make sure that they bring those people to the interview. You need a project leader in the room to communicate how good the firm is at conceptualizing, planning, and executing a project within a budget.
Working with the Environmental Consultant
Working with environmental consultants requires a deep level of trust. You are working with professionals in the art of making sense out of the unknown. Soil and water are mysteries that cannot be seen, touched, heard or smelled, despite how many representative samples are extracted. You have to respect the process by which the consultant will advise or approach that unknown. Unlike the contractor, the consultant will be working to design a plan that has enough flexibility in it to respond to whatever is found in both the real and “regulatory” world.
You do not know what the contractor will find when he pokes a hole in the ground. You also do not know exactly how the environmental regulator will react to what comes out of the hole. But as a lawyer, you can, and should. play out a number of 'what if’ scenarios to test the consultant’s plan. A good consultant will engage you in those scenarios before committing anything to paper. He or she will appreciate that it is the lawyer’s role to engage in that inquiry, not in an attempt to make the design bullet proof. but to make sure that the client is protected with a contingency plan for any unforeseen, but possible developments.
I also consider the following subjective elements to be indispensable while working with an environmental consultant:
- Truthfulness. The consultant needs to tell you the truth at all times. While that seems obvious, some consultants seem to believe that they are there to tell the story that the client wants to hear. Those types of stories don’t last long. Real solutions work when the problem description is real.
- Logic. Many environmental projects today are done step by step. It is useful to hear a consultant describe how he or she would react after each step has been taken. In that way, even if only half of the picture is in, the client has an idea of what comes next logically and what that step may entail.
- Money. Costs are always important. If the consultant can communicate sensitivity to costs without fragmentizing the project so much that he or she has little concept of the overall solution, then they have done a fairly extraordinary thing and deserve your attention.
Conclusions
To return to our initial example. you may pick one consultant, or you may go with a number of consultants. In each case, the important thing is to know clearly the different roles and responsibilities that the client, with your input, has assigned. The size of the consultant firm is not as nearly as important as to the specific experience of the individuals within that firm, or firms. To evaluate that experience, you will have to have face-to-face meetings with the candidate firms. A lawyer can provide a valuable function in helping the client to clarify its thoughts on exactly what needs to be done and coordinate the variety of tasks that need to be accomplished.