NBC Universal released this week the results of a poll regarding consumers’ attitudes towards the environment and the actions they may or may not take to protect the environment.  AP reported that people have largely embraced recycling bottles and cans, and are inclined to turn down thermostats to save energy but that some paths toward a greener Earth aren't as easily taken — or turned into action.

The article made me think about some of my own actions towards a more sustainable earth which actually contradict themselves:

Commuting

I bought a Smart Car…

(a photo of my actual car I found on Flickr taken by a stranger). 

I used to take the commuter train to work everyday: public transportation = good, driving alone in a car = bad.   I really like my Smart Car, what can you say, it is a convertible.  So I went from public transportation to driving a small environmentally friendly car nearly everyday.  Brilliant. 

Food

Eating locally grown fruits, vegetables and (if you must) beef is the environmentally conscious choice.  But…. Beef….. Kobe…… wow.  You cannot get much less local for me than Japan.  It is about 9000 miles between Kobe and Chicago.  That is about 13lbs of CO₂ transportation emissions just to get one pound of succulent, luscious, richly marbled, mouth watering beef on my table.  I do not have Kobe regularly, so I guess I’m ok with that. 

Coffee

I buy organic coffee from my local, non-chain coffeehouse…in a disposable cup.  I only started recently using a reusable travel mug.  Sitting in traffic in my idling car everyday, I realized that when I was on the train it was too much trouble for me to carry an empty travel mug back and forth.  But now that I can leave the travel mug in my environmentally friendly car that I use everyday instead of public transportation, using a travel mug is not so much of a burden.  Not sure the calculation of this trade off…

Printing

I do my part and buy recycled content paper, recycle the paper I use (either through office recycling program or scratch paper for my kids on stuff not printed double sided), and print double sided whenever I can.  As a construction lawyer and crafting sustainable legal strategies for my green clients, however, I still print out a LOT of documents.  I’m still of a certain age where I tend to digest differently when reading something on a computer screen than reading something on paper in my hands.  I don’t usually print out every email, but some things just need to go in a file. 

Water Conservation

We do the little things around our house to conserve water: have a small rain barrel to water the outside plants, use the old dog water to water the inside plants (dog saved from a shelter, but use plastic bags for her poop), only run dishwasher when really full, wash most clothes in cool water, etc.  I think most of these conservation measures are negated by the really long hot showers I tend to take. 

Clothes

We have two little kids.  We tried for awhile buying nothing but organic clothes, locally made when possible, all natural materials.  Those clothes were great…for the two weeks or so that they fit.  These kids are growing like weeds (I’m familiar with weeds from my non-chemically treated lawn).  Those fancy clothes get expensive and apparently we still need to eat.  So now their clothes are mostly dirt cheap and of questionable origin, but these kids know all about recycling the excess packaging from the processed food they get to eat. 

This post is a more on the sustainable side as opposed to the legal side of this blog (a blog which should have a black, power conserving background, as opposed to an eye pleasing white background).  I guess the moral of this post is that it is difficult to be No Impact Man and it is ok not to be – at least I think so. Maybe the little things you do offset some of the more environmentally onerous things you do, but it is better than not doing those little things at all.  Pick your most polluting industry, product or practice, and there is probably something little one can do to improve the impact from that product or service – and isn’t that marginal improvement better than nothing?

I’ve said before that for a sustainable legal strategy and to avoid claims of greenwashing, a company’s claims must be true, not misleading, and substantiated by competent and reliable scientific evidence.  Add to this simple list: if you make a specific claim regarding the properties of your product, be sure to know whether that claim raises further regulatory requirements. 

Samsung manufactured keyboards that it claimed contained antimicrobial properties and could inhibit germs and bacteria.  If that claim was false, misleading or not backed up by evidence, Samsung could be in trouble with the Federal Trade Commission. FTC, however, is not who fined Samsung. 

The US Environmental Protection Agency regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  FIFRA requires that all pesticides be registered with the EPA so it can determine that the pesticide, when used in accordance with labeling directions, will not cause unreasonable adverse effects to human health or the environment.  

By claiming antimicrobial properties on the keyboard, the Samsung keyboard fell within the EPA’s broad definition of a pesticide: any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, where a pest is living organisms that occur where they are not wanted or that cause damage to crops or humans or other animals, such as insects, mice and other animals, unwanted plants (weeds), fungi, or microorganisms such as bacteria and viruses. 

The failure to register the keyboard with the EPA under FIFRA cost Samsung a $205,000 fine. The fine was not based on the keyboards’ inability to fight off critters, just that it was not properly registered.  After having gone through the trouble on your own of verifying your green claims, providing extensive corroborating data and not making misleading statements, wouldn’t you hate to find out that your product is now regulated?  Have your claims reviewed by an experienced attorney.

Are environmental sustainability reports and planning documents privileged such that they do not need to be produced in litigation? The answer was “No” in an interesting case in New York City this summer. 

Background

Methyl tertiary-butyl ether (MTBE) is a chemical compound added to gasoline to make it burn cleaner and more efficiently.  As a little background, as provided by Buchanan Ingersoll & Rooney:

MTBE is added to gasoline to reduce emissions of smog-forming pollutants and toxins from automobile tail pipes. However, when underground storage tanks leak, or MTBE gasoline otherwise escapes to the environment, groundwater and public drinking water sources may become contaminated. MTBE is highly soluble in water which, combined with its high incidence of use, has led to many cases of groundwater contamination. It takes only a few parts per billion of MTBE to contaminate a water source, and only five parts per billion affects taste. MTBE contamination effectively renders water undrinkable, as the water takes on a turpentine color and taste. Many people are also concerned that MTBE may be a carcinogen. While no scientific evidence confirms this claim, such fear is not easily allayed.

The possible health concerns, undrinkable water, and costly cleanup, along with a belief that oil companies knew of the risks associated with MTBE and chose to mislead about or hide those risks, have prompted state and federal government attempts at MTBE regulation, as well as lawsuits by both government and private plaintiffs.

This discovery dispute arose in a case primarily between New York City and ExxonMobil.  ExxonMobil eventually lost an initial phase of the case in August.  Details of the case can be found here and here. 

Deliberative Process Privilege

Before the trial, the City attempted to protect from disclosure, under the deliberative process privilege, certain documents concerning environmental sustainability studies.  The City claimed that disclosure of its long term sustainability plan, among other documents, would hamper its internal decision making process. 

The City was ordered to disclose un-redacted versions of its sustainability study.  The Court noted that under New York law:

• In order to qualify for the privilege, a document must be "predecisional" and "deliberative."
  • A document is predecisional if it was "'prepared in order to assist an agency decisionmaker in arriving at his [or her] decision.'"
  • The privilege does not extend to "'purely factual' material"
• A document is deliberative if it is "'actually . . . related to the process by which policies are formulated.'"
• Factors used to determine whether a document is deliberative include "whether the document '(i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.'"

The City had tried to redact almost the entire sustainability report in regards to water quality.  However, the Court determined that the redacted sections were neither predecisional nor deliberative but rather mere editorial revisions to factual material disclosed elsewhere.

This case is rather limited to the unique facts of a party attempting to assert a privilege only really available to public entities and to a sustainability report of “questionable relevance” to a case.  It is safe to say, however, that sustainability reports will probably not be subject to any special privilege in disputes – if one is trying to claim a privilege the claim better be rooted in existing law regarding privileges.

Nonetheless, sustainability reports have not been the subject of much litigation yet.  We'll keep an eye on this to see how litigation might impact your sustainable legal strategy. 

Defining and implementing sustainability practices into a business is a never ending challenge.  Assuming one can influence decision makers to act in the first place, questions such as how to achieve improvements, how to measure progress, how to educate and how to implement sustainability measures provide plenty of trials. 

Sustainability offers fertile ground for learning, innovation, and the opportunity to build a better model, according to Angela Nahikian, director of Global Environmental Sustainability at Steelcase.  She recently looked back on the progress of the sustainability movement and offered some thoughts as to what it will take to maintain the movement in an article entitled Exhausted But Inspired: Gleanings From a Sustainability Director in the Trenches. 

According to Nahikian, continuing efforts from the sustainability trenches must include:

1) translating the collective learning through effective stories and case studies,

2) partnering with the academic community to develop standard frameworks and tools, and

3) actively mentoring the next generation of sustainability practitioners.

To this list, I would add:

4) Engage customers in the process.  Ask for ideas on how they utilize your products.  More than just getting a better life-cycle analysis, you’ll probably get a better relationship with your customers. 

5) Set aggressive goals from suppliers.   Change standard RFP forms to implement sustainability goals into subcontracts.  Measure that sustainability criteria as part of your supplier’s compensation. 

The Corporate Executive Board published five imperatives every executive must consider to survive in an economic downturn.  Even if the recession is over, the highlights below are always good advice for sustainable businesses: 

#1: Improve Cost Discipline: Reduce COGS And Capital Use, Not G&A Spending

·        Focus on cost of goods sold rather than general and administrative expenses to achieve long-term cost discipline.

#2: Protect Growth Initiatives: Elevate, Consolidate, and Protect Innovation Funding

·        Incorporate concrete innovation targets into performance expectations and reporting, even amid belt-tightening.

#3: Leverage Financial Strengths: Re-envision Your Value Chain as a Capital and Pricing Chain

·        Foster innovations that target the shifting financial strength of customers and suppliers.

·        Use the crisis to price for the true value of intangibles that customers under appreciate.

#4: Exploit Risk Opportunities: Embrace, Don’t Eradicate, the Right Risk Exposures

·        Harmonize executive risk tolerances and pursue those opportunities you are uniquely positioned to manage.

·        Evaluate your contract portfolios with an eye toward renegotiating past (and changing future) contract terms.

·        Robustly manage fraud risks by identifying and punishing incidents of misconduct early in the down cycle.

#5: Make Critical Talent Plays: Use Today’s Crisis to Court and Cultivate Tomorrow’s Winners

·        Seize the opportunity to close critical skill gaps with “not-in-play” talent.

·        Reward relative outperformance (even if you must court the wrath of executive pay watchdogs).

·        Use the economic crisis to sharpen the acumen of future executives.

·        Re-brand the employment value proposition to recoup productivity losses from suddenly disengaged talent.

·        Embrace offshore centers as a source for critical skills and next-generation executive leadership, not just low-cost execution.

These aren’t suggestions.  An imperative is an act or course of action that is demanded of one, as by position, custom, law, or religion: a charge, commitment, duty, must, need, obligation, responsibility. The tag line for the Corporate Executive Board is “What the Best Companies Do.”  What is your sustainable company doing?  How can we help you?