nvironmental law is a vast field, especially in Alaska where so many different factors come into play. From protecting endangered species to developing natural resources in a safe and efficient way and making sure that landowners—including Alaska Native entities—are involved in decisions that affect their way of life, companies working in the Last Frontier must make sure that they’re on solid legal ground.

For this reason, many companies choose to hire firms that specialize in environmental law to work in conjunction with, or in addition to, in-house counsel.

“In-house counsel usually does not specialize in environmental risks or hazards, and the broad umbrella of environmental law is very specialized within discrete subject matter areas,” explains Anna Crary, a senior associate at Landye Bennett Blumstein. “While in-house counsel can advise on governance matters and general risks across the organization, it is necessary for organizations to be aware of any possible environmental repercussions of their proposed activities.”

While many environmental firms are involved in long-term issues such as the effects of climate change, the Marine Mammal Protection Act, and clean-up sites, these firms are also called on in times of crisis, such as when there’s an oil spill, newly found contamination, or if a client receives a notice of violation from a regulatory agency.

“Part of our role is to anticipate issues, such as knowing when proposed regulations will be coming out and helping clients draft comments on them or making sure that, when a company takes over another business or operation, they are doing all of the things they are legally obligated to do,” explains Tina Grovier, chair of the Stoel Rives Environment, Land Use and Natural Resources group in Anchorage. “We want to be proactive and create a plan for any issues that are likely to arise.”

“If you own a company that wants to become involved in resource extraction, development, or transportation on the North Slope, for example, you need to work with a firm that is familiar with the Marine Mammal Protection Act and the different kinds of regulatory requirements under that law,” says Crary. “Any time you want to do exploratory work, you need to work with Fish & Wildlife to receive an incidental take authorization. If your business is conducting scoping activities, you need to understand that these will likely affect polar bear and walrus populations and receive authorization to conduct those activities.

“You also must be aware of whether proposed activities impact or interfere with subsistence rights and get advice on how to approach and negotiate with Alaska Native corporations, tribes and tribal organizations, and other subsistence users,” she adds. “The scheme of law in Alaska is very different than in the Lower 48; ANCSA [Alaska Native Claims Settlement Act] and ANILCA [Alaska National Interest Lands Conservation Act] do not exist there, and in many cases, large entities who want to expand in Alaska aren’t aware of the importance of these laws and interactions and relationships with Alaska Native corporations and tribes.”

While still an emerging issue, Crary expects to see the state and federal governments begin to address the effect that climate change may be having on the health of Alaska’s fisheries.

“The past ten years have shown significant changes in the health of certain salmon populations and runs, such as the decline of king salmon in Kenai and the decrease in Copper River sockeye,” she says. “And the Chignik area sockeye fisheries have failed since 2018 because escapement goals haven’t been met.

“I think this is going to make federal and state regulatory entities address changes we’ve seen in wildlife populations and engage with stakeholders, including subsistence users and commercial fisherman, to make regulatory changes to support establishing or bringing back healthy fish populations,” she adds.

According to Scott Broadwell, counsel at Davis Wright Tremaine, Alaska companies need to understand the importance of environmental issues and receive proper counsel—or it could cost them in the long run.

“We’re seeing a lot more attention being paid to PFAS [per- and polyfluoroalkyl substances], which are a wide range of compounds common in firefighting foams and other contexts that were not historically regulated as hazardous substances under state and federal law,” he explains. “While we haven’t yet seen sites where clean-up is required for PFAs, properties impacted by these chemicals that have been ignored in the past are starting to get on regulators’ radars.

“This is something that clients need to be aware of when looking at property,” he adds. “These chemicals can have pervasive impacts across the state, including in facilities in Anchorage, and anywhere where firefighting foams were used in the past, such as airport runways.”

“It can be intimidating from a client point of view because of the nature of environmental liability, at least in the clean-up context,” he continues. “Strict liability is not tied to fault; while that landowner may not have done anything to cause the impacts, as a matter of policy when CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act] passed, it was decided that landowners, operators, and the people who benefited from those properties, regardless of fault, are in a better position to take on those costs than taxpayers as a whole. It’s a black hole of liability that can get very expensive.”

One hot topic that might actually benefit landowners, particularly with the change in administration, is carbon banking. “There’s been a push from the Biden administration on the climate in general, and specifically on providing for some form of carbon banking as a market-based tool for combatting global warming,” Broadwell explains. “There may be more traction for that on a nationwide basis, and large swaths of land in Alaska are suitable for that kind of use.”

“President Biden has begun reviewing some of the environmental regulations enacted by the Trump administration and issued an executive order earlier in the year directing the executive branch to focus more on climate change,” explains Grovier. “Greenhouse gases are a significant topic, and the EPA plans to propose new regulations on methane emission and organic compounds later this year.”

According to Grovier, changes to environmental laws now tend to be driven by the executive branch and then litigated in the courts, rather than by Congress legislating changes as it did in previous decades. Congress has, however, been working on a joint resolution related to the EPA’s current emission standards, and it continues to be a subject of debate in the House.

“While Alaska has unique statutes such as ANCSA and ANILCA, the anticipated regulations relate to oil and gas infrastructure, and we haven’t yet seen what the EPA is going to propose,” she adds. “I believe we’ll see drafts by this fall, but it isn’t clear that they will treat Alaska differently.”

Grovier says that environmental justice is also a priority for the EPA and for other agencies within the Biden executive branch.

“Environmental justice is the concept that all people regardless of race, color, income, or origin should receive fair treatment and be allowed to be meaningfully involved in the development, implementation, and enforcement of environmental laws, regulations, and policies,” she explains. “Everyone should have the same degree of protection from environmental hazards and equal access to the decision-making process.

“You’ve got Alaska Native Corporations—both regional and village corporations—as well as tribes in Alaska that want to have a voice,” she says of projects that could affect the state. “This focus on environmental justice is intended to ensure that environmental impacts are not disproportionally experienced by underserved communities and that all stakeholders have fair access to information and are able to give input and to have their views considered.”

Grovier adds that the Biden administration is also considering making changes to water quality certifications under the Clean Water Act and to nationwide permits under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. Clients are already seeing increased enforcement of water issues in other jurisdictions.

“There’s a lot of water in Alaska, so these changes will impact everything from construction to natural resource development,” she says.

“It’s a lot of work to stay on top of all of these environmental issues as they evolve, which is why our attorneys specialize in particular areas,” says Grovier. “If a client comes to me with a Clean Air Act issue, I have two attorneys I can refer them to; there are two different experts for Clean Water Act issues. We also have experts licensed in Alaska who handle contaminated site matters, and still others who specialize in the Endangered Species Act, the Marine Mammal Protection Act, and other environmental laws related to protected species.

“These issues can overlap,” she adds, “which is why you have to be collaborative and come up with comprehensive solutions.”

“When clients are analyzing a project, they need to gauge the level of risk they are assuming before they break ground, and knowledge and awareness of environmental laws in the context of that project are crucial,” says Crary, adding that it is always preferable for an environmental law firm to be involved in a project at the beginning, versus when an issue may arise. “I’m not a proponent of ‘act now, seek forgiveness later,’ especially when, with certain environmental laws, clients could incur significant financial liability.”

While some companies might hesitate to hire an environmental law firm, often an ounce of prevention is worth a pound of cure.

“It’s never anybody’s first choice to spend money on legal fees, but it does pay off in the long run,” says Broadwell. “If you are proactive and can help your clients manage compliance issues as they move forward, they can avoid enforcement actions down the road.

“It can get very expensive very fast when looking at statutory penalties under the Clean Air Act and mounting legal fees on top of it,” he continues. “There can even be criminal liability associated with it, which is why it definitely behooves clients to get firms with environmental expertise involved early.”