Issues of Professional Environmental Ethics

Material Information

Issues of Professional Environmental Ethics


Subjects / Keywords:
Professional standards ( jstor )
Professional ethics ( jstor )
Attorneys ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Issues of Professional Environmental Ethics, L.M. Buddy Blain, September 20, 1991, from 1992-11th Annual Water Management Seminar
General Note:
Box 8, Folder 4 ( Vail Conference, 1994 - 1994 ), Item 32
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

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Levin College of Law, University of Florida
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Levin College of Law, University of Florida
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1,)9 [IA .VI'1 II ANNUAL wallR

Speech delivered to:

Tampa, Florida
September 20, 1991
L. M. Buddy Blain

Issues of Professional Environmental Ethics


When we speak of ethics, the first things that come to mind
are the codes of ethics and disciplinary rules that exhort or
serve as licensing standards for the various professionals; the
"professional ethics" or rules of professional conduct that
professional must follow. In the State of Florida,.lawyers,
engineers, and surveyors are subject to rules and/or statutes
that prescribe patterns of behavior, and set forth do's and
don't, in relationships with clients, with other consultants,
and with agencies and/or courts. These are mandatory licensing

In addition, professionals may be subject to professional
discretionary standards as a result of their membership in
voluntary organizations. Engineers and surveyors, for example,
may follow codes prescribed by the National or Florida Society of
Professional Engineers, or the Florida Society of Professional
Surveyors. The National Association of Environmental
Professionals is another voluntary organization which has a Code
of Ethics and Standard of Practice.

Systems of ethics also may be imposed on professionals by
the courts, through civil and criminal liability for their
actions and inactions. Professionals may also impose on
themselves their own personal or religious ethics. But societal
and personal ethics are not in written form, tailored to tell you
what to do in a particular situation.

What do we mean by "Professional environmental ethics?" To
me, this term means written licensing standards and/or
discretionary professional standards or codes of conduct
governing the various professionals who work in the environmental

These written ethical codes, for the most part, govern the
professional's relationships: (1) with his client; (2) with other
professionals; and (3) with the public and/or the government in
the form of agencies or courts.

"Professional environmental ethics" seems pretty clear-cut
until we start reading some of the published articles on
environmental ethics. Some writers construe this phrase to mean

q. 6o

"responsibility to the environment." They have the general idea
that environmental professionals are wrong to hold to
"anthropocentrism." "Anthropocentric thinking" means a person
holds to the view that says man is the dominant species with
stewardship or dominion over the earth. This anthropocentric
view includes the idea that human progress and well-being are
more important than environmental amenities. This is an outdated
way of thinking according to some authors, who believe that it
should be replaced with an "ecological orientation" or
"ecological rationality." That we should have an ecologicc way
of looking at the world." One commentator has said that "the
environmental professional has a moral and often a legal
responsibility to be guided so far as possible by principles
directed toward protection of the integrity and quality of the
human environment." This, to some people, is "environmental

This concept of environmental ethics is far different from
the codes and standards of professional conduct. Perhaps I
should admit that I probably am guilty of anthropocentric
thinking myself. However, in the interest of academic fairness
I'll talk about the relationship between the environmental
professional and "the earth", at least a little bit.


There are several ways to look at these issues. One way is
to list the various relationships wherein duties may be owed:

Professional to Client
Professional to Public/Government
Professional to Consultant or Other Professional
Oh yes, and, Professional to Earth

Or, we can look at discrete issues such as:

Confidentiality versus disclosure
Conflict of interest
Independent professional judgment, or,
Duty to the profession itself

Or, we can proceed according to each profession: how do the
lawyers do it, what do the engineers do, and so on.

It's probably more interesting to focus on specific problems
and issues, starting with confidentiality and disclosure.


A. Confidentiality and Disclosure

1. Disclosure requirements of state and federal
statutes are directed at the property owner or person
in control of the facility. (CERCLA, SARA, RECRA, Clean
Water Act, Toxic Substances Control Act, etc.) These
laws require disclosure.

2. In Florida, a lawyer has no legal obligation to
disclose that contamination exists on the client's
property, and in fact cannot reveal information
generally without client consent (Rules of Professional
Conduct 4-1.6[al). A lawyer shall reveal information
only when believed to be necessary to prevent the
client from committing a crime or to prevent death or
substantial bodily harm to another (RPC 4-1.6[b]). The
obligation to society to reveal relates only to
prospective actions of the client, not past actions.
If the client dumped hazardous waste illegally the
lawyer has no duty to notify the authorities unless
notification is necessary to prevent death or
substantial bodily harm.

3. Engineers have no general legal obligation to the
public to disclose violations to regulatory agencies.
In fact, it is misconduct in the practice of
engineering if an engineer reveals confidential
information without the client's consent; although an
engineer must disclose if the public health and safety
is threatened (Rule 21H-19.001[6]).

4. Voluntary engineering organizations generally
follow the licensing standards by imposing a duty to
the public that overrides the duty of confidentiality
to the client, only when safety, health and welfare of
the public are endangered (American Society of Civil
Engineers, Canon 1 and National Society of Professional
Engineers, Rule la).

5. Planners are not subject to mandatory
confidentiality requirements. But the voluntary code
of ethics for the American Institute of Certified
Planners is similar to the legal standard. It allows
disclosure of client information only to prevent a
clear violation of law or a substantial injury to the

6. All environmental consultants and professionals
should review their licensing requirements to determine
ahead of time the standards that govern them. The
contract of employment should specify which standards

f apply to the consultant. The client's lawyer should
review these standards before the contract of
employment is signed. Confidentiality standards should
be stated clearly in the employment contract. If the
consultant adheres to a voluntary code of ethics that
will require disclosure, even in the absence of
criminal or safety violations, this should be revealed
to the client. If the consultant intends to not adhere
to the contractual confidentiality requirements, then
the client would be advised to select another
consultant. As a legal issue, it may be a conflict of
interest or breach of contract to put disclosure ahead
of confidentiality. A consultant who assumes an
ethical responsibility to the environment may place
himself in an inherent conflict of interest with the

B. Conflict of Interest

1. Lawyers are subject to strict licensing standards
that forbid conflict of interest except in certain
situations with client consent.

2. The voluntary standards for engineers, planners,
and environmental professionals also address conflict
~of interest.

3. Obligations imposed by voluntary organizations
may, however, in themselves present a conflict of
interest. In a recent reported case, an environmental
manager for Mobil Corp. followed the National
Association of Environmental Professionals Code of
Ethics rather than following his employer's directions
regarding alteration of internal reports and
environmental records. The NAEP Code of Ethics has a
Creed stating that:

The objectives of an Environmental Professional
1. to recognize and attempt to reconcile societal
and individual human needs with responsibility for
physical, natural and cultural systems.
2. to promote and develop policies, plans,
activities and projects that achieve complementary
and mutual support between natural and man-made,
and present and future components of the physical
and cultural environment.

It also has six ethical precepts, including the pledge
that, as an environmental professional, each member
N will:


2....incorporate the best principles of the
environmental sciences for the mitigation of
environmental harm and enhancement of
environmental quality.
3. That each member will not condone
misrepresentation of work performed or that was
performed under his or her direction.

It is not clear from published reports which of these
precepts the employee followed, but he was fired as a
result. A federal district court in New Jersey,
following New Jersey law, held that his termination was
wrongful and the jury awarded him substantial damages.

It is unlikely that this would be the result in Florida
because Florida law permits employment termination "at
will" regardless of public policy considerations.
Clients should review their employees' and consultants'
voluntary professional affiliations to be sure the
employer is not paying membership dues for employees to
belong to groups that advise actions that present a
conflict of interest. Employment contracts should
spell out a duty to the employer that overrides
voluntary codes or creeds, or at least clarifies the
rules by which a person will be governed.

4. The American Society of Civil Engineers is another
voluntary organization that has an environmental credo.
It says:

l.f Engineers should be committed to improving
the environment to enhance the quality of life.

This is a "should" not a "shall" and it relates to
quality of life, presumably huran life. It does not
specify a responsibility to the intrinsic value of
nature; but a professional could interpret it that way.
It's my belief that such an interpretation should be
viewed as a personal, rather than a professional,
creed, and, unless revealed to the client, represents a
conflict of interest.

The ASCE also has a policy statement on environmental

ASCE recommends that the individual civil engineer
dedicate himself or herself to the following

1. Civil engineers must recognize the effect
their efforts will have on the environment, by

. 10

increasing knowledge and competence in
incorporating ecological considerations in. design.

2. The civil engineer must inform a client of the
environmental consequences compared with the
benefits of the services requested and the design
selected, recommending only responsible courses of

3. The civil engineer must fully utilize
mechanisms within the Society which lend support
to individual efforts to implement environmental

4. The civil engineer must recognize the urgent
need to take the lead in development, modification
and support of efficient government programs, to
insure adequate environmental protection but avoid
the inhibition of the economy which can result
from overregulation.

This recommended policy on environmental protection,
like the credo, does not expressly present a conflict
of interest with clients, although it could. It is
however, preferable to a proposed canon that was
rejected by the ASCE. This would have imposed a
mandatory obligation on all ASCE members to protect the
environment regardless of conflict with client
obligations. This was the canon and one of its
guidelines that were rejected by the ASCE:

8. Engineers shall perform service in such a
manner as to husband the world's resources and the
natural and cultured environment for the benefit
of present and future generations. (I am
suspicious here and say, future generations of
what? People? Or not?]

8.g Engineers, while giving proper attention to
the economic wellbeing of mankind and the need to
provide the responsible human activity, shall be
concerned with the preservation of high quality,
unique and rare natural systems and natural areas
and shall oppose or correct proposed actions which
they consider, or which are considered by a
reasonable consensus of recognized knowledgeable
opinion, to be detrimental to those systems or


This again is a personal code. It should not be
applied to professional situations, because it can
conflict with the client's interests. Professionals
who feel this way should use other means to express
themselves, such as Message Checks or investing their
money in mutual funds to clean up the environment. It
is unprofessional to spend your client's money to
advance your own personal credo to the client's
detriment. Not only that, it might get you sued and
you might lose.

5. Even governmental employees are enforcing their
personal environmental credos.

[Note: The following is borrowed directly from an
article published by AWRA in its February 1991 issue of
the Water Resources Bulletin. It was an adaptation of
an article written by R.S. Murali and Mary D. Hansen,
published in the Florida Bar Journal/January 1991.]

C. Independent Professional Judgment

There may be differences between standards of
independent professional judgment required of lawyers,
engineers, surveyors, planners, and other environmental
professionals. The lawyer's urgent goal of advocating
for his client's best position may contrast with a
scientific professional's obligation to render
objective, impartial, and fair technical opinions,
based on factual findings. Few would argue that it is
proper for a lawyer to direct a technical professional
to a specific conclusion, but some lawyers may apply
subtle pressure to that end in close or uncertain
cases. However, the lawyer in Florida is required to
exercise independent professional judgment (Rule 4-2.1)
and advance only meritorious claims (Rule 4-3.1). His
or her zealousness and advocacy should be tempered by
Rule 4-3.3, which requires fairness to the opposing
party and counsel.

Another issue that may arise in environmental practice
involves the competency of team members. Unauthorized
practice may be a temptation for both legal and
technical professionals involved in a team project. It
is a standard practice (intentional or unintentional)
for an environmental professional to interpret a
design, law, rule, or requirement in which the
individual has not received formal education or
training. Attorneys may give technical opinions and
professionals may Interpret the law. This expertise
(or lack of expertise) comes from dealing with

environmental issues which cross professional boundary
lines. The environmental field has so much overlap
that it is often difficult to separate the professions
and the professionals. At the same time, individuals
have professional codes (depending on their occupation)
which must be followed. Thus, another necessity, at
the onset of the project, is a clear understanding
among participants of their respective duties.

Environmental ethics revolve around the ability of
individuals to: (a) pursue a profession in the highest
manner; (b) assure that the actions of the individuals
do not impact the health, safety, and welfare of people
at large; (c) respect the role of other professionals;
and (d) overall, not let personal feelings and opinions
bias one's judgment. All professionals on a multi-
disciplinary team will benefit from a clear
understanding of the bounds of each other's
profession's together with a clear obligation to
respect those boundaries. Obligations to the public
are essential in a field where the public health and
safety is of such paramount concern. What one
profession teaches about personal responsibility may
run afoul of what another profession teaches about
obligations to promote a clients interests. An ethical
obligation to promote one's profession need not be
accomplished by encroaching on the territory of another
profession. After all, a client is entitled to know
the ethical considerations that will be brought to bear
if a violation of environmental laws is discovered in
the course of professional investigation of a project.

The problem areas discussed above can occur even among
professionals following ethical codes. It is a greater
problem that some environmental professionals do not
belong to any organization which imposes an ethical
code. Given the wide disparity in attitude and
attention to these fundamental areas of ethics, it is
critical that lawyers and other professionals active in
environmental and land use permitting begin to develop
a cross-disiplinary system of ethics. It is essential
that a code be established for all environmental
professionals, particularly those who do not belong to
an organization which does. This kind of code also
should apply to all the regulatory agencies. Like
professionals who are held responsible for their
actions, lack of attention, and poor action, the agency
officials and staff members also should be held
responsible with a code for all their actions.

This is a unique concept: A code of ethics to be
applied to an area of practice rather than to be

applied only to particular types of practitioners. The
concept is being studied in Florida, where the
Environmental and Land Use Law Section of The Florida
Bar has invited other environmental professionals to
become affiliate members and has opened a dialogue
among its attorney and affiliate members to explore
these issues. The hoped-for result is an umbrella code
of ethics which can encompass a common way of looking
at the duties and obligations of environmental
professionals to the public, to the client, to
themselves, and to their professions. At the very
least, the exposure of how the different professions
approach ethical resolution will be invaluable to all
the practitioners involved.
As Ms. Hansen and Mr. Mural said in the lead sentence
of their article, personal responsibility is the core
of any ethical system. But be sure you let your team,
your employer, or your client, know what the
controlling factors will be.