Counsel to Counsel - May 2008 - (Page 21)

partnership at a glance take, but managed the downside risk for the company. To accomplish that entailed working with my engineering department, my operating department, my environmental group, the real estate group, and interacting with several sellers and the EPA.” That doesn’t happen without a lot of effective communication, and both sides of this partnership sing praises of the other’s responsiveness. “Among the clients that I have, they’re some of the most amazing in terms of answering phone calls,” McIntosh relates. “When I call one of my contacts in particular, I know that 95 percent of the time he’s going to pick up his cell phone. That level of responsiveness doesn’t really happen very often.” agreement the company reached with the EPA would also be satisfactory to the state, but it made for a very inefficient negotiation process. McIntosh had to somehow alleviate that tension. “My role was to be the person who was obnoxious in the negotiations,” she says. “That left the Union Pacific folks to maintain their working relationships. Ultimately we worked through the sticking points.” Patton Boggs LLP Since 1962, Patton Boggs has cultivated an expertise in public policy, regulatory, litigation, business and intellectual property law. The firm’s Environmental practice includes attorneys who have worked in many of the relevant regulatory agencies, including the Environmental Protection Agency, Federal Energy Regulatory Commission, Department of the Interior, Department of Energy and Department of Justice. A Greener Heavy Industry Playing Bad Cop There are times when McIntosh has to take flak from regulators to shield her client. UP’s Environmental group maintains longstanding working relationships with state, federal and even local regulators. In a heated negotiation, those relationships could be jeopardized, so it’s up to the outside counsel to take one for the team. McIntosh recalls a Superfund negotiation in Utah where she had to play the bad cop. UP had already done a complete investigation of the yard, with close coordination with the state of Utah and EPA Region 8. That research identified a couple of areas that needed further investigation, and UP met with the EPA to agree on the scope of work needed to complete that investigation and remediate as necessary. “Anytime you do that on a supervised basis, you pay oversight costs of both EPA and the state; that’s just the way the system works,” she says. “Just to give you a flavor of this, EPA’s costs run between 35 and 40 percent of the overall cost of the project. It’s astronomical, in my view. But that’s Superfund. “We went into our first meeting with EPA and started talking about the state’s role, and they became very defensive and said they really weren’t inclined to let the state participate.” It worked out that the EPA and the state conducted parallel conversations with UP, the regulated party, acting as the intermediary. This ensured that any Some companies run afoul of environmental laws because they push into areas they don’t really understand. Others buy properties that are contaminated beyond their expectations and don’t know how to deal with the consequences. In those situations it’s difficult to work with regulators because no one likes the solution. And it’s always hard to educate companies at the same time you’re asking them to pay a lot of money for a cleanup. These are the typical challenges outside counsel encounters in the environmental Partner Carolyn L. McIntosh has deep experience in environmental regulatory compliance and natural resources litigation. Before joining Patton Boggs she served as an assistant attorney general for the State of Colorado for Superfund and hazardous waste management and as a special assistant attorney general to the State of Montana, implementing its Superfund program. She is Peer Review Rated and can be reached at CMcIntosh@PattonBoggs. com. area. But McIntosh says none of them apply with Union Pacific. “Environmental issues are a part of their historic business,” she concludes. “They address them in a responsible and responsive fashion, and in the environmental arena they are very forward thinking. They are much greener and more sustainable than you would think a heavy industry could be.” Today, UP is continuing its effort to pare down its stable of outside firms, rewarding those core firms that are best able to understand their client. Young says that he’d like to reduce the number of firms he currently uses to 15 or 10 over the next year, and maybe even fewer. “Our theory has been that a smaller group that’s more closely aligned with your business drivers and who understand your system better will be more effective,” he says. “On an individual level, I think that people who are more intimately familiar with you will defend you more zealously. That helps at the end of the day if you have to litigate. It’s a subtle psychological factor, but I believe in it adamantly.” martindale.com/c2c May 2008 21 http://www.martindale.com/c2c

Table of Contents Feed for the Digital Edition of Counsel to Counsel - May 2008

Counsel to Counsel - May 2008 Contents Harassment Policies NEC Corporation of America and Duane Morris LLP Lost or Stolen Data: Minimizing Fallout On-Boarding the Board Drafting Fair, Efficient and Enforceable Arbitration Agreements Responding to Counterfeit Products Crafting an English-Only Workplace Policy Distressed Debt: New Players, Global Sophistication Make Restructuring More Complex IP Confidential: Plan Ahead, Act Fast to Protect Your Trade Secrets Adverse Changes: Think Ahead in a Strained M&A Market Optimizing Web 2.0 Technology: Expanding Your Professional Network Union Pacific Railroad Company and Patton Boggs LLP Warming Warning: Develop Your Climate Change Strategy Now Risk Sharing: Expect New Obstacles and Expenses in Syndicated Loans E-Discovery in Action Diversification at the Gate Energy

Counsel to Counsel - May 2008

For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.