There is lots of macho talk by “talking heads” on sports networks about attacking an opponent’s strengths. That’s nice talk, but not good strategy. My observation is that in politics, war and sports, winners play to their strengths and against their opponents’ weaknesses. Even George Patton didn’t say: “Where is Rommel the strongest and let’s attack him there.” Winners make an assessment of their strengths and weaknesses and plan strategy accordingly. Environmental permitting and enforcement defense is no different.
Over my career, I’ve heard a lot of people say: “Let’s not get that information; it may be bad.” Sometimes that decision is strategically correct particularly if there is no need for additional data; but that’s a decision that has to be made on a case-by-case basis and not as a matter of rigid ideology. Whether more data is needed is a legitimate question and arises in every case; but the important point is that you can never allow yourself to hide, ignore or avoid data critical to your decision even if it is bad. What military commander doesn’t want more intelligence information? He would like the information to be good, but it will be useful even if bad.
The point is that you should not fear data. The unfortunate reality is that, in most environmental cases, the data is not favorable; the question is not whether it is bad, but, rather, how bad. You cannot, however, make sound strategic judgments without sufficient data. You, therefore, cannot fear it; you have to deal with it. Business schools these days call the process of effectively collecting, managing and analyzing data as “predictive analytics.” There is no reason not to use this concept in environmental regulatory and enforcement cases.
You should never get into major litigation or a major fight with a regulatory agency or prosecutor with bad data. It is self-defeating. You need credible data to support your case regardless of the fact that your data is not going to be problem-free. Strategic decision making, however, is ultimately based on facts. Facts dictate strategy.
The other side of the coin is the inveterate worrier. When one piece of bad data shows up, the case is lost. For those of you who watch CNBC, I call this the “Rick Santelli Syndrome.” If you want to know everything that could ever possibly go wrong, regardless of probability, listen to Rick. Careful analysis is important, but eventually a decision needs to be made; things need to move forward. Eisenhower had to make a decision regardless of all the variables. You absolutely need to evaluate potential risks, but, to get something done, you need problem solvers, not just issue spotters. The important point to remember is that there is no perfect case; every case has problems. Don’t overreact.
In short: Think strategically. Get the facts; don’t run from them. Don’t have an anxiety attack about bad data; build your strategy around them. Then move on.