Re-Authorizing the Clean Water Act

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Client Memo Two --

Evaluation and Recommendation re The Conference

Due at 10 a.m., Monday, March 1st

Environmental Drafting and Negotiating

Professors Cannon and Setear

Spring 1999

Your assignment is to write a memo to your client in which you

(1) evaluate the House and Senate bills from your client's perspective; and
(2) recommend a course of action for your client to take with respect to the Conference.


When we say "evaluate the House and Senate bills from your client's perspective," we mean that you should think about your client's constituents or important audiences (and about your client's personal preferences if your client is a person and you know something about his preferences), and then imagine how your client would react to various provisions in each bill. Here's one example with made-up bill language and made-up facts about the client:

"The House bill gives permitting authority for all agricultural wetlands on which crops are grown to the US Department of Agriculture. The Senate bill gives exclusive permitting authority for all wetlands everywhere to the EPA. Since you're from Iowa (where, as you know, farmers rule), and you have a huge wheat farm yourself, and your sister is the Secretary of Agriculture, and Ag is generally seen as much more pro-farmer than EPA, and you've introduced a bill in every session for the past 10 years that would give exclusive permitting authority for all agricultural wetlands to Ag, I recommend that you vigorously support the House language on this issue."

Your evaluation should not spend a lot of time simply repeating the analysis in the Conference Memo of the differences between the bills. We wrote an elaborate Conference Memo so that the differences between the bills, in textual terms, are laid out for you. We did that so you wouldnÕt have to spend a lot of time jumping back and forth between parallel statutory provisions.

But what the textual differences mean for your client is certainly an appropriate subject of analysis. Here's an example with a made-up client but real bill language:

"As you know, we in the Libertarian League for Less Regulation abhor all governmental authority. The smaller the acreage over which the federal government must force property-owners to kowtow to the government in order to obtain permits, the better. In terms of permit-review criteria, the House bill withdraws federal permitting authority with respect to Type C wetlands. The Senate bill withdraws such authority only from Type D wetlands, which will clearly comprise a smaller acreage than the House's Type C wetlands. We should therefore favor the House language on this issue."


When we say that you should "recommend a course of action for your client to take with respect to the Conference," we mean that you should think about what your client might want to do or say to effect your client's preferences. Presumably your client doesn't just want to know what to think about the two bills, but also wants to know what to do or say about them in the Conference (or in less formal interactions), whether in terms of reconciling the two bills or of proposing language currently in neither bill. The evaluations part focuses on the interaction of your client and your client's constituencies, while the recommendations part focuses on the interaction of the various clients with one another.

Here's an example with a made-up client, made-up other participants, and made-up bill language that begins with an evaluation of the clientÕs reaction (in the first sentence) but then moves (in later sentences) to recommendations for actions:

"We in the Deep Ecology Fringe believe that the payment of compensation for the 'loss' of value resulting from pro-environmental regulation reinforces both the incorrect stereotype that respect for the earth is somehow harmful and the societal obsession with converting nature into a monetizable commodity, and so we find highly objectionable the Senate bill's proposed section 404(d), entitled 'Right to compensation.' Senator Helmsman, who is on the Conference Committee, seemed concerned at the hearings about the impact of statutory compensation on the federal budget deficit. We should approach him informally when given the opportunity, and say that we generally share his concern about this sort of expenditure and support the House version on this point. Senator Grunenfrieden, also on the Conference Committee, is the most environmentally minded of the Representatives on the Committee, and we should point out to her the deep-ecology justification for sticking with the House position on this issue.
"We should also be alert for any efforts by wrong-minded Senators or Representatives to strike the small-business requirement for eligibility for compensation. It will be unfortunate, for the reasons discussed above, if small farms or other businesses receive statutory compensation, but it will be truly repellent if the agri-business conglomerates and multi-national corporations that have so systematically violated our stewardship are rewarded for their efforts with legally mandated windfalls!"

Some define politics as the art of compromise. Your recommendations about action may include setting forth potential compromises for your client. YouÕre writing a private memo to your client, so it's perfectly fine to tell your client where you think the client might want to bend. It's not always easy to know when some other person will refuse to compromise, but do the best you can to think about when your client, if acting rationally, could compromise (and along what lines) without abandoning constituency or conscience.

Some other points to keep in mind.

Remember that the conferees are not limited to the language in each bill, but may propose alternative or compromise language. You shouldn't propose new statutory language at every turn, or at the drop of a hat, but proposing such language is certainly among the recommendations that you may make. If you do so, you should explain how you intend that language to differ from the analogous language in the two existing bills. (The Conference Memo does this kind of analysis for the existing bills, but proposing new language means that you'll need to do the same kind of thing for your proposed language.) You should also explain how the proposed language serves your client's interests.

Remember that the conferees represent their chamber but also their own constituencies (and their own conscience). If you are a conferee, your chamber chose you partly for your expertise (given your membership on the relevant committee), partly for your integrity, and partly because you along with the other conferees from your chamber would represent a spectrum of viewpoints. So the conferees, and those who seek to influence the conferees, should realize that the conferees from the House or Senate won't always uniformly toe the House or Senate lines, respectively.

Finally, although the various examples above always focused on a particular provision, keep in mind that the Conference has a number of statutory provisions before it. Cross-issue compromises are perfectly permissible.

Some differences compared to Client Memo 1.

Just use one "voice." In Client Memo 1, we asked you to divide your voice, as it were. For most of that memo, you were supposed to write in the voice of the client speaking to the public (through testimony to the Committee or, for Senators, through an opening statement). But for the rest of the memo, you were supposed write in the voice of you speaking to the client, in order to explain why you wrote the testimony or statement as you did.

In this memo, you should write in just one voice: the voice of you telling your client what you think the client should think and do about the upcoming Conference. You're free to tell your client to say something in public that may or may not reflect the client's innermost feelings or final bargaining position, of course, but then you should just say that to the client, e.g.: "You may want to say initially that you will walk out of the Conference unless the bill is renamed the 'All Glory to Senator Smith Bill' and unless a $200 million federal wetlands theme park is built in your state, but, in terms of your constituency, you should be perfectly happy at the end of the day so long as you ensure that the EPA isn't granted exclusive authority to grant duck-hunting licenses nation-wide."

You don't have to allocate the pages among topics in any particular way. In contrast to Client Memo 1, we're not asking you to spend a particular amount of pages on anything in particular. You're making a mistake if you write ten pages of analysis without a word about what your client should actually do, or if you somehow write ten pages of tactical tips without a word about your client's desired outcome. But we're not requiring you to write x pages of evaluation and 10-x pages on recommending a course of action.

You also don't have to have a section called "Evaluation" and a section called "Recommendations." You could instead go issue by issue.

You don't have to hit every issue with equal force, especially if you believe that some issues are going to be much more important to your client than other issues.

Length and Form.

Some things that are the same as Client Memo One are the length and form components: double-spaced, with one-inch margins on all four sides of the page, 12-point Times Roman as the font, and no more than 10 pages long. If any of that sounds different from Client Memo One, please let us know right away.

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For corrections, comments, and questions, please e-mail John Setear.

This page was last updated on 03/01/99.