Arkansas Court of Appeals Update: Deed placing property into Wetlands Reserve Program did not create right of public access.

In an April 30, 2014, decision, Johnson v. Kros, the Arkansas Court of Appeals affirmed a trial court’s finding that the deeding of property into a federal Wetlands Reserve Program did not create a public right of access.

The dispute between adjoining landowners arose out of a “Warranty Easement Deed” between Riverbend and the U.S. The Deed placed a pond located on Riverbend’s property into a Wetlands Reserve Program. The U.S. paid Riverbend around $1.5 million for the Deed.

At the same time as the Deed, the landowners directly to the south of Riverbend, the Johnsons, granted an easement to the U.S. permitting the overflow of pond water from the Riverbend property onto the Johnson property.

The Johnsons sought permanent access to the Riverbend pond. They argued that the pond easement gave them a right of access to Riverbend’s land, and that the Deed put the water and wildlife of the pond into the public domain.

The trial court denied the Johnsons’ claims and permanently enjoined them from going onto the Riverbend property. The decision turned on the plain and unambiguous language of the Deed, which reserved to Riverbend the “the right to prevent trespass and control access by the general public,” and the “right to undeveloped recreational uses, including hunting and fishing, and including the leasing of such rights for economic gain . . . .” The trial court held that this language made it clear that the Deed did not “open for use [Riverbend’s property] as a recreation area by the general public or the [Johnsons] for any reason.” Observing that there is, “nothing ambiguous or uncertain about the language of the easement,” the Arkansas Court of Appeals affirmed.

The full decision of the Arkansas Court of Appeals, Johnson v. Kros, can be found at 2014 Ark. App. 254 (2014).

Reflections on the AAEA Second Annual Meeting and Policy Conference

The Second Annual Meeting and Policy Conference of the Arkansas Advanced Energy Association (AAEA), held yesterday in North Little Rock prompted me to reflect on what it means to practice sustainability law in Arkansas. 

What it means, more often than not, is uniting apparently disparate interests in a way that furthers the client's sustainability agenda and achieves the client's goals (of which, presumably, one is furthering the sustainability agenda). Consider the simple act of uniting sustainable business practices – such as efficiency in the use of paper and energy, with the notoriously inefficient practice of law. For a client that wants to use, or must use, (or both) vendors, contractors, and professoonals who meet certain sustainability standards or criteria, this simple act takes on considerable importance.

Against this backdrop, I highlight two strands of thought from the AAEA conference. The first is from the keynote speaker, former Colorado governor Bill Ritter. Governor Ritter observed that it was unlikely that comprehensive advanced energy legislation would be forthcoming from the federal government anytime soon. Instead, advancements in the law of sustainability would be found locally, and, ultimately, public policy would provide the leverage to move forward. These are not state secrets revealed. But to a lawyer who practices sustainability law, Governor Ritter’s plain spoken observation is a gut check. One of my mentors in the law used to reflect that, “for a lawyer, public policy is the refuge of a weak mind.” And it’s mighty difficult to provide advice and counsel about laws that do not exist and public policies that aren’t law.

The second thread comes from Matt Dromi, a co-founder of the Fayetteville, Arkansas-based company modthink. Presenting on “Harnessing the Power of Social Media for Advanced Energy Business Growth,” Dromi emphasized that successful social media campaigns were authentic and embraced humanity. This means less, “come to my event” or “here’s a coupon for some pants,” and more, “this is my real story” and “this is how we are alike.” In two words: similarities connect.

These two disparate ideas tie together in the practice of sustainability law. More often than not, lawyers are focused on differences, and clients, particularly before attorneys fees exceed budget, dig their heels into ground wrought from principle. For example, in reviewing a contract, the lawyer's first line of inquiry is usually something like, “What’s wrong with this deal?” or, “How is this different from what I expected?” as opposed to “What is good about this deal?” or “What provisions do I definitely want to keep?” The client's companion position might be something like, "I never waive the security deposit" or "I always litigate on my turf," instead identifying with areas of common interest, such as a mutual commitment to maintain the LEED certification of a building, and to share costs to do so.

This is the sustainability law that I practice – a practice driven by client goals and guided by embracing similarities. The fact that we are dealing with sustainability subject matter means that, by definition, there are similarities and that those similarities relate directly to client goals. Identify the common ground and point out to your adversary (and, perhaps with some finess, your client) that the two of you are already standing on it and identify exactly what that means: that from the start, some principles are aligned and some goals achieved. 

The law of sustainability is different from other areas of law because, properly practiced, it is driven by similarities between and among parties as opposed to differences. Yes, parties negotiating a green lease may be adversarial, but they are also united by the common principals inherent in a green lease, such as the desire to preserve and promote a green building. Yes, an employer/employee relationship is often marked by an imbalance of power, but as the employer adopts sustainable business practices the two are united by a common interest in the employee’s welfare. The similarities align with goals, and if the parties start with a focus on the similarities, they are more likely to achieve the goals. A settlement of a contested piece of litigation is often described as a deal that no one likes. The resolution of a sustainability claim can be just the opposite – a deal that serves the goals and common interests of all involved.

And to me, that is what the practice of sustainability law is about.

 

Will Congress Ban LEED Gold and Platinum Certification for the Department of Defense?

The National Defense Authorization Act for Fiscal Year 2012, otherwise known as House Bill 1540, is a thousand page window into the manner in which military activities, personnel, construction, and operations will be funded in 2012.  And buried deep within that mess, on page 788, is Section 2831: “Report on Energy-Efficiency Standards and Prohibition on Use of Funds for Leadership in Energy and Environmental Design Gold or Platinum Certification.” 

Section 2831 is a proverbial double-edged sword.  On the one hand, if included in the final Department of Defense appropriations bill, the DOD would be required to analyze and report on the costs and benefits of adopting ASHRAE Standard 189.1: Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings versus adopting ASHRAE Standard 90.1: Energy Standard for Buildings Except Low-Rise Residential Buildings for the sustainable design, development, construction, and renovation of DOD buildings and structures.  The report must include details of the energy-efficiency improvements achieved and long term payback (whatever that means) resulting from the adoption of ASHRAE Standard 189.1, and a cost benefit-analysis and return on investment for energy-efficiency attributes and sustainable design achieved through LEED gold or platinum certification.

On the other hand, Section 2831 clearly and unequivocally prohibits the use of DOD funds “for achieving any LEED gold or platinum certification.”  This does not mean that DOD buildings cannot be certified LEED gold or platinum certification, but it does mean the cost of obtaining gold or platinum certification cannot exceed the cost of obtaining LEED Silver or Certified certification.

From an empirical viewpoint, this is a sound framework for evaluating the expenditures associated with LEED-certification: audit existing certified buildings and identify any causal connections between certification and energy efficiency before devoting further funding to certification.

There is also a paucity of independent study in the actual effects and benefits of LEED certification.  As the now infamous Gifford v. USGBC lawsuit illustrates, there is a genuine debate as to whether LEED-certification results in buildings that are more energy efficient.  The DOD has a decent stock of certified buildings.  An empirical study of these buildings will help to bridge this information gap.

But the funding ban also appears somewhat arbitrary.  True, there is undoubtedly some additional cost associated with Gold or Platinum LEED certification over and above Silver or Certified certification, but, in the bigger picture, does this incremental savings really justify an outright ban?  And, at the risk of engaging in some proverbial nose-cutting for the sake of face spiting, what is the basis for drawing the line at Silver and Certified certification?  After, all, if the funding decision turns on whether LEED certification results in more energy efficient buildings, why study buildings at all levels of certification?

The ban also ignores that LEED certification serves purposes beyond achieving energy efficiency.  Per the USGBC, the LEED certification program is intended to provide a benchmark for evaluating whole buildings and to be a "definitive standard for what constitutes a green building in design, construction, and operation."  In the bigger picture, this implicates the triple bottom line of social, economic, and environmental responsibility, and that means far more than just energy efficiency.  The certification process also means that the government gets third-party confirmation that the "green" building it ordered is the "green" building that was delivered.

The effect of this ban on Arkansas remains to be seen.  There are DOD projects and properties in Arkansas, and some are well known for sustainable initiative (the Air Force Base in Jacksonville, Arkansas, comes to mind).  There is always the possibility that local municipalities will follow the federal example, and that would have widespread effects in cities like Little Rock, where all new municipal buildings must be LEED certified.

In the end, the folks at ASHRE report that the Senate is in the process of drafting its own funding bill.  This bill will undoubtedly be different from the House bill.  Whether there is agreement on the DOD LEED funding ban (or anything else, for that matter), remains to be seen. 

The Practice of Sustainability Law and the “New Normal” for Lawyers, Part I: “Is There a Dark Side to Green?”

Earlier this year, University of Arkansas Professor of Law Carl Circo wrote and published an article called, “Is There a Dark Side to Green?”  The alarm raised by Professor Circo is that lawyers claiming expertise in sustainability law may be doing so for the wrong reasons.  As Professor Circo writes,

Green building literature often uses such pejorative phrases as “greenwashing,” “green marketing,” and “the sustainability bandwagon” to suggest that not everyone who promotes sustainable construction does so with entirely pure motives.  How common is it, and how objectionable, for professionals, including lawyers, to claim special expertise to garner more business as much as to advance sustainability?  For that matter, even a law professor might elect to write on green buildings in part because it is relatively easy to get a good law review placement for a green building article. 

My first impulse is to demur.  So what?  There are undoubtedly numerous businesses that have jumped on “the sustainability bandwagon” not out of an abiding sense of social responsibility, but to take advantage of an ever-growing market for sustainable products and services.  For example, consider the owner of an auto dealership who does not believe that auto emissions contribute to global warming – indeed, who does not believe in global warming at all.  But the dealership nonetheless markets and sells at a profit hybrid and energy efficient cars.  Do the owner’s personal beliefs somehow change the character or benefits of the product sold?  (Which is not to say that denizens of the sustainasphere would not find this proposition offensive or the owner morally corrupt.) 

But the bigger logical failure of Professor Circo’s premise is that he equates sustainability law with more traditional legal practice areas like corporate law, contracts, securities, real estate, environmental law, municipal finance, and construction law.  Sustainable law is not a traditional practice area.  True, certain issues – green leasing and the law governing net metering come to find – resemble traditional practice areas.  But few lawyers, if any, are going to be able to have a thriving law practice devoted solely to writing green leases or advising clients regarding compliance with net metering schemes. 

Much has been written recently on the “new normal” for lawyers, law firms, and law practices.  Much of this pontificating focuses on the shift from hourly rates to alternative and incentive based billing methods and on documenting the emergence in changes in how law firms operate – from a new emphasis on client service to identifying new ways to compensate and reward lawyers.  Likewise, a lawyer will probably not have a philosophical attachment to a bond issue, while a true sustainability lawyer will bring specific public policy and value judgments to the representation.

In a recent article in the American Bar Association Journal, Paul Lippe wrote, “In the New Normal . . . lawyers recognize law as a system of information and management, where the challenge is to impact the outcome for lots of distributed actors in a complex system where law is only one part.”  That’s pretty dense, but what it means is that if Lippe and his ilk are right, the future practice of law will be much more about relationships driven and defined by client values and goals and much less about having a body of specialized knowledge and charging an hourly rate that reflects that amount of gray in a lawyer’s hair and that is the highest the market will bear for access to that knowledge.

Because “sustainability” is both a process and a value-shaped result, the practice of sustainability law reflects this new normal.  It is far more than recognizing that the commercial lease of a LEED-certified building will need to contain numerous specialized provisions, or that certain tax credits or financing incentives may be available for “green” projects that are not available for “traditional” projects.  It is about practicing law in a way that lines up with the client’s values, and that means law offices that adhere to a “triple bottom line” philosophy and that follow other sustainable practices.  The simple fact is that if a lawyer wants to hold themselves out as practicing sustainability law, they are not only going to need the specialized knowledge to preach the practice, but also the dedication to practice the practice.

I want to make it clear that I do not know Professor Circo, and that I appreciate him giving voice to this issue under the masthead of a respected university publication.  And, criticism aside, the question he raises is a good one: how does one find and hire a true sustainability lawyer – that is, one who has not simply “jumped on the bandwagon” to garner business but who is invested in the process and the result?  Stay tuned for Part II….

(Department of Citation: “A Professional Renewal: Why Great Lawyers of the New Age May Be ‘System Designers’”, by Paul Lippe, June 8, 2011, can be read here: 

http://www.abajournal.com/legalrebels/article/professional_renewal_in_the_new_normal/)

(Department of I’m Not Picking on You: I have absolutely nothing against bond lawyers!  Several of my law partners practice municipal finance, and my father-in-law is a former bond lawyer.)  

So What The Heck Is This Sustainability Blawg About Anyway?

Or, perhaps more accurately, what is the law of sustainability?

Good question! My friend, mentor, and law partner Janet Pulliam taught me that sometimes the best way of talk about something that defies definition is to start by identifying what the thing is not about.

So here is what the law of sustainability is not:

• It is not “water law,” “oil and gas law,” or “environmental law”;

• It is not about toxic torts or Erin Brockovich;

• It is not about tree hugging, tree spiking, Glen Canyon, or the Monkey Wrench Gang;

• It is not about a political, religious, or scientific agenda; and,

• It is not about a cost prohibitive approach to doing business divorced from economic reality.

Now that we’ve gotten that out of the way, here is my latest and best stab at what the law of sustainability is about:

It is about bringing a strategic and interdisciplinary approach to the law to partnering with people and businesses that produce or sell sustainable products, services, and innovations, or that operate or aspire to operate in a sustainable manner.

Consider:

You make a widget (widget is a lawyer word for “thing”; we learn it in law school and, therefore, paid a hefty sum for the privilege of using it) that is made entirely of recyclable materials, is recyclable in any community on the earth, and is produced using entirely renewable energy.

This is the easy one. Your business lives smack dab in the middle of the land of the law of sustainability. The federal government (through the Federal Trade Commission) has guidelines that influence the manner in which you can promote and make claims about your product (see previous post). You have particular needs for siting, licensing, permitting, and financing your business, and for purchasing your renewable energy. You may have a LEED certified production facility, and you need to be sure you preserve that certification. If you’ve had the benefit of good legal counsel, then you know that there are local and federal tax credits and incentives related to your workforce and plant and you are taking advantage of them.

Now consider:

You have an idea for a widget, and you want to make that idea a reality. You are decent, well meaning person, but your business plan does not call for a “green” or “environmentally conscious” or “sustainable” business. Bottom line: you just want to be successful, make a few bucks and provide for your family, send your children to the University of Arkansas, and maybe buy a nice bass boat, hunting camp, and/or lake house.

You are still smack dab in the middle of the law of sustainability. There are local, state, and federal tax and financing incentives that can help you build or acquire a manufacturing plant if you take certain easy steps to make the plant “green,” and others that kick-in if you site your plant in a neighborhood that is “depressed” or slated for “revitalization” or “renewal.” There are similar tax breaks and financial incentives that kick in if you employ the right workers. Putting recycling, paperless, and renewable energy initiatives in place from the get go will save your business significant money in the long term. And, more likely than not, when word gets out about your “sustainable” business you will find yourself buoyed by the support of local civic leaders.

So that’s what this blawg is about: I’m a lawyer, and I have some specialized knowledge about the law of sustainability (some of which, quite candidly, others have paid for); Arkansas is prime and fertile ground for people and businesses interested in staking out a piece of sustainability; and I aim to connect the two and tell you about it.

Oh yeah: as for the term “blawg,” that’s just the same as “blog” but with “law” in the middle, which I’ve learned is the way that lawyers title their blogs. My law firm paid a wonderful consultant, Chris Fritch, a lot of money to learn me that.

(Department of Shameless Plugs for Chris Firtch: www.ClientsFirstConsulting.com)