By Bill Romanelli, Senior Vice President, Public Affairs
The environmental standards of 100 years ago were, well… nonexistent. Today’s best practices were hardly a thought in 1921 when crude oil was stored in open pits, manufactured gas was still powering lamps across the country, and the real boom in aircraft, munitions and rocket production was still decades away. Even the U.S Environmental Protection Agency itself wasn’t founded until 1970.
Back then, as the saying goes, “we didn’t know what we didn’t know.” We’ve caught on recently, but the knowledge gap has left communities and companies around the country with legacy ground, water and air contamination issues that must be addressed. Surrounding each is the specter of health effects, a skeptical public and media, and the threat of toxic tort litigation.
Companies in the bullseye of these scenarios want to act responsibly, yet few are eager to embrace the notion of communicating with the public about what’s happening at a specific site. Indeed, a poorly implemented outreach program can lead to a PR and litigation nightmare, but even so, companies and other responsible parties often have no choice. Federal statutes under Superfund or, more formally, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as well as state requirements under California’s Environmental Quality Act actually require public outreach in certain circumstances.
Required or not, however, when implemented correctly – with a commitment to transparency, accuracy and accessibility – outreach offers practical legal and reputational benefits that recast proactive communication as less of a risk and more of an opportunity.
For starters, communication may help with litigation. Stepping up to say you are engaged in finding a solution isn’t the same as admitting you’re liable for a problem. Ultimately the public really wants to know what’s being done—by making efforts to inspire trust and confidence from the beginning, the surrounding community will be less likely to bring out the torches and pitchforks if there’s bad news later.
There are no magic shields against lawsuits of course; proactive public outreach may attract the attention of potential plaintiffs and their lawyers. If litigation does come, however, an environment in which the public believes the company has been acting responsibly is much more favorable than one in which the company has left the interpretation up to the public rumor mill, the media, and plaintiffs’ attorneys.
One way to help create a favorable environment is briefing local elected officials as a first step. These are people who don’t like being blindsided by calls from the press or constituents with questions about “poison in the water” and what they’re doing about it. Rest assured if they think there’s pressure to act, or overreact, they will.
In contrast, elected officials are more likely to appreciate being informed before any mass communications occur; they want to know what they should tell their constituents. Your commitment to giving them accurate and reliable information helps them do their job. That may pay dividends down the road.
Briefing media in advance offers some advantages as well, but this is a much narrower and much higher tightrope, one that must be carefully evaluated in the context of each unique situation before it is employed. Generally it’s a question of having some control over a story instead of simply responding to it.
Whatever course is chosen, be certain any external materials are absolutely accurate. Sweat even the smallest stuff; any incorrect detail, no matter how inconsequential, will call the credibility of the entire program into question.
A second benefit concerns cost recovery where there may be multiple “responsible parties” for cleanup, but perhaps not all of them bear the true responsibility for the contamination. Other parties involved in paying for investigation and remediation costs may be entitled to recovering their costs once remediation is complete, but only if they demonstrate fulfillment of some distinct requirements, one of which is community outreach.
Specifically, under CERCLA a successful cost recovery claim requires proof of compliance with the National Contingency Plan, which provides the guidelines and procedures – including public outreach – for responding to releases of hazardous materials, pollution or contamination.
Petroleum-related sites are carved out of cost recovery provisions, but other kinds of sites under federal or state oversight are bound to specific public outreach, typically known as a Public Participation Plan (PPP). A formal PPP requires demographic information on the site and surrounding area, survey research and other information that will ensure neighbors are being contacted and informed in the most effective manner. Fulfilling these requirements often calls for involving a communications firm with PPP expertise that works closely with the legal team to ensure the plan is developed and implemented in a way that utilizes your best key messages, employs the best spokesperson(s), protects or enhances your reputation, builds ongoing and positive relationships with the community, and supports the legal strategy.
A third benefit, albeit a more pragmatic legal benefit, is the role a proactive communications plan can play in whether some claims have legal standing. There have been cases where implementation of a community relations program can be used to demonstrate ‘widespread knowledge’ about site conditions as of a certain date, and that can be used to establish when the statute of limitations expires. There are no guarantees, but as an added result of outreach, it’s something that shouldn’t be overlooked.
In the big picture, proactive communications should be viewed as more of an opportunity than a risk. By providing accurate, transparent and frequent information through a variety of tools and channels, companies can foster a more balanced environment for discussion and avoid the anxiety and anger that are often the genesis of litigation in the first place.