By JOHANNA MARMON

Environmental stewardship and the concept of "going green" have fast become a major part of our political and social lexicons, with environmental groups issuing the challenge to think outside of the box and come up with ways to preserve natural resources and halt - or at least slow - the ever-rising mercury on the earth's thermometer.

But environmental lawyers are finding that within the confines of the law, at least, this new culture of responsibility isn't necessarily freeing them up to be more creative in how they operate - especially since an attorney's work is largely driven by the inclinations of the client.

"I let (clients) tell me how to approach things," says Dennis Harkawik, an environmental lawyer and partner in the Buffalo-based law firm Jaeckle Fleischmann & Mugel LLP who represents public utilities, developers and other industry players against environmental regulators. "I can do everything from bang my shoe on the table to agree to anything the regulator wants, but if I get too far out in front of a client, I won't have him."

Clients better-informed

What has changed, Harkawik says, is that industrial clients - especially those who produce, and therefore must dispose of, hazardous waste - have a more thorough understanding of relevant laws.

"In the 1980s and into the early 1990s, people didn't understand how the laws were written," he says. Under the Superfund program, a government environmental initative to deal with abandoned hazardous waste sites, Harkawik said, "a manufacturer that sends hazardous waste to a licensed facility that turns out to not be as reputable as the manufacturer thought is still responsible for the cleanup of the waste. Today, that's more broadly understood."

In some cases, it's less about being environmentally conscious than it is about not being held liable, Harkawik explains. "Here's the one place where Superfund has worked best," he says. "When companies sent away waste, (in the past) they did it and forgot about it. Superfund doesn't allow you to do that ... you will be liable for cleanup. Today, companies very carefully monitor the places they send their waste."

The most cutting-edge companies go a step further: They recycle the waste or deal with it at their plants, says Harkawik.

Seeing the big picture

For Michael Perley, an environmental lawyer and partner at the Buffalo-based Hurwitz & Fine PC, part of the challenge for attorneys in today's greening culture is in getting the client to understand that everything has an environmental impact.

"One of the first laws of environmental economics is that there's no such thing as a free lunch," says Perley, who spent 22 years as attorney for the Town of Boston and now represents municipalities in specialized environmental issues involving land use and development. "The trick is to determine what's acceptable on all sides."

For example, Perley says his firm is being asked by municipalities to look into wind and solar-power plants and make recommendations based on environmental - not to mention economic - impacts. Wind-farm developers, for one, often offer lucrative deals for landowners and municipalities in which they're placed.

"You try to be progressive and make good decisions based on those components, but there's the law of unintended consequences," Perley says, noting the well-known controversies over wind farms' visual and noise impacts. "From the standpoint of the municipality, we want to make sure (these projects) are regulated appropriately. It's harder than it sounds to strike the right balance."

He says the challenge of responsibly developing alternative energy reminds him of landfill development in the Buffalo Niagara region years ago, when deals were often laden with tax incentives for communities willing to have them sited there.

"A company would come in and they'd say, ‘Listen, you guys will never have to pay taxes again, just let us build,' " Perly reports. "Some governments permitted them, and some didn't. With facilities like wind farms, the government has to strike the balance to protect both its interests and the interests of its citizens."

Everyday choices

Going green extends into everyday office life as well, and Perley says clients are beginning to ask the firm to make slight adjustments in how it does business. "Many clients go paperless," he says. "That's motivated by a number of different things: For one, it takes less energy and makes less trash. We're also doing more virtual conferencing."

But the days of a totally paperless operation are still a long way off - if they will ever exist at all. "At the end of the day, the contract has to be signed by everybody," says Perley, who adds that it's been a gradual shift that doesn't involve all clients.

"We've lost some weight in our library, but it hasn't really been driven by clients," says James Magavern, counsel to the Buffalo-based Magavern Magavern Grimm LLP, who specializes in environmental, health-care and business law, among other practices. What clients are doing, he says, is making slight shifts in corporate ethics in terms of the environment.

"My sense is, there are a lot of businesses who are environmentally conscious and who would like to be contributing to environmental protection and conservation," says Magavern. "But by the nature of things, they still have to compete and play by the rules at the same time."

The current economic climate is setting the tone for development, says Jaeckle's Harkawik, who notes that while "green buildings" that are LEED (Leadership in Energy and Environmental Design) certified are a hot item these days, many companies are in survival mode, making environmental concerns take a back seat to issues like dealing with the credit crunch and making payroll.

"Manufacturers are battling for their lives," he says. "It's hard to make the environment a really major focus when you're trying to survive. Right now, (companies) are not going to be spending money if there's not an immediate payback."

But economic advantages for green development do exist, says Harkawik, pointing to BlueCross BlueShield of Western New York's new headquarters, constructed on the site of an old gas plan, as an example. "Brownfields cleanup offers distinct tax incentives," he says, noting that the company saved tens of millions of dollars by cleaning up the site and building on it.

In the end, the biggest challenge may not be in getting a company to go green - it's in encouraging development at all.

"It's not brownfield development that's hard, it's Buffalo," says Harkawik. "The problem is getting a company to build something in the city."

Johanna Marmon is a freelance writer.