There is a tendency in the environmental field to think that the next big wave of litigation is just over the horizon, and that it will be the tsunami that will change everything. Most of those waves turn out to be ripples, but climate change and the responses to it may be the real thing, says R. Morgan Gilhuly, managing partner of environmental law firm Barg Coffin Lewis & Trapp LLP.
Federal incentives for renewable energy projects are largely tax-based, but the rules limit the taxpayers who can use the benefits, making the system inefficient and expensive and ultimately restricting the ability of the industry to grow, says Ed Feo, co-chair of Milbank Tweed Hadley & McCloy LLP's project finance and energy practice.
The money spent for incremental increases to achieve more stringent cleanups often seems disproportionate to the benefits obtained and could be better spent on projects that provide immediate and actual, as opposed to theoretical, benefits, says Jeff Civins, leader of Haynes and Boone LLP environmental and climate change and corporate sustainability practice groups.
CERCLA has long been an area needing relief from the Kafka-like application of arranger liability and allocation formulas, and new source review under the Clean Air Act is still much more complicated than it needs to be, says Pam Giblin, chair of Baker Botts LLP's environmental department.
The billable hour is not altogether dead. Life support can be found in the form of lawyers setting and being accountable for legal budgets and developing clearly delineated and mutually agreed upon legal strategies, says James O'Toole Jr., chair of Buchanan Ingersoll & Rooney PC's environmental and toxic tort practice group.
The Superfund program would be improved by a more systematic process to make cleanup decisions based on risk to human health and the environment and to prioritize sites for cleanup based on risk, says Theodore L. Garrett, co-chair of Covington & Burling LLP's environmental practice group.
The whole basis for environmental regulation is that pollution is what economists call an externality; we need to turn that concept around and come up with some way to share the societal benefits that accrue from something like a nuclear power plant with those who live immediately adjacent to it, says Robert M. Olian, co-head of Sidley Austin LLP's environmental practice area team.
All remediation programs need to be site-specific and health-based, and they need to be adequately staffed or converted to semi-privatized programs in order to allow for more responsiveness to the regulated community, says Elizabeth E. Mack, chair of Locke Lord Bissell & Liddell LLP's environmental section.
There needs to be greater clarity and consistency in the treatment of the termination and liquidation process of forward contracts and swaps under the Bankruptcy Code, says Paul B. Turner, head of Sutherland Asbill & Brennan LLP's energy and environmental practice group.
Recognizing that environmental law often imposes strict liability without particular regard for culpability can become a slow and frustrating process because no party is immediately willing to accept responsibility for the “sins of the fathers,” says Andrew C. Cooper, head of the environmental practice at Dickstein Shapiro LLP.
It is easier to chart a course through an Escher painting than to satisfy every responsible company's goal to comply with all environmental laws. In a global world, to the average commercial enterprise, this way lies madness, says Randolph C. Visser, co-chair of Sheppard Mullin Richter & Hampton LLP's global climate change and clean technology practice group.
There are insufficient resources for environmental authorities to hire, train and retain experienced environmental professionals. Real solutions require partnerships, and that should be a priority today, says Ben L. Pfefferle III, national chair of Baker & Hostetler LLP's energy and environmental practice team.
Sites would be cleaned up far more efficiently if the Superfund program were converted to a closely monitored public works format, says John H. Johnson Jr., leader of Troutman Sanders LLP’s environmental and natural resources practice group.
The Clean Water Act is sorely in need of clarification regarding the extent of federal jurisdiction. The uncertainty and differing interpretations have resulted in inconsistent results and wasted resources by both the regulated community and the regulatory agencies, says Granta Y. Nakayama, a leader in Kirkland & Ellis LLP's environmental and energy practices.
The myopic “command and control” philosophy of U.S. environmental laws must give way to a more collaborative approach if the U.S. is to meet challenges regarding energy independence and climate change, says James R. Spaanstra, head of Faegre & Benson LLP's environmental and natural resources practice group.
We need to continue to move from the “stick” approach of our current environmental laws to the “carrot” approach embodied in the concept of sustainable development, says James C. Morriss, leader of Thompson & Knight LLP's environmental law practice.
Until the United States passes climate change legislation and commits to GHG emission reduction, it will not be able to provide the leadership necessary to reach a global commitment that includes China, India and other developing nations, says Peter L. Gray, head of McKenna Long & Aldridge LLP's environment, energy and product regulation practice group.
It will be interesting to see if the increase in EPA’s budget results in a substantial increase in enforcement. Hopefully, that will depend on the number of meritorious cases that the EPA hasn’t had the funds to prosecute, but beware of de facto “bean counting” requirements, says Nancy J. Rich, chair of Katten Muchin Rosenman LLP's sustainability and climate change practice.
In environmental law, there are extensive state laws and regulations, as well as extensive federal laws and regulations, the combination of which leads to extreme complexity, overregulation and inconsistency. A single, federal body of environmental laws and regulations would go a long way to resolving this situation, says John J. McAleese III, a partner in Morgan Lewis & Bockius LLP's litigation practice.
The U.S. will spend hundreds of billions of dollars in the next decade on utility infrastructure, including a move to more environmentally friendly resources and lower greenhouse gas emissions. Decisions on these projects need to be based on better defined and more reliable mechanisms for recovering these significant costs, says John D. McGrane, head of the electric energy subpractice at Morgan Lewis & Bockius LLP.
In light of the long-awaited hydraulic fracturing legislation now signed by Illinois Gov. Pat Quinn, supporters of high-volume horizontal fracking who see the potential for enormous economic benefits are looking eagerly ahead to when permitted drilling operations can begin in the New Albany Shale reserve. But, even with enactment of the fracking legislation into law, significant challenges still lie ahead, say attorneys with Quarles & Brady LLP.
The work of the Gulf Coast Claims Facility in response to the Deep Water Horizon explosion and oil spill provides a modern paradigm for organizing and delivering financial relief to economic victims of extraordinary environmental disasters. Several aspects of the GCCF case, such as the application of payment algorithms, can be applied as a framework for other mass torts, say Thomas Vasquez and Ilan Guedji of Analysis Research Planning Corporation.
The latest U.S. Bureau of Land Management push for rules on hydraulic fracturing on federal and tribal lands would add another layer of regulation to oil and gas operators, with important changes on requirements such as cementing, construction chemical reporting, say attorneys with Latham & Watkins LLP.
June brings dramatic changes at the top of the U.S. Department of the Interior. New hands will control the levers of power, and, as a result, the organization that controls one-fifth of the land area of the United States, 35,000 miles of coastline and 1.75 billion acres of offshore resources will alter how it operates, making one wonder what will happen next, says Steven Richardson of Wiley Rein LLP.
Although cost-benefit analysis in environmental rulemaking has its critics, it remains the best method as it can be an effective strategy for federal agencies to develop and implement environmental regulations that impose reasonable costs in exchange for more valuable benefits to society, say attorneys with Gibson Dunn & Crutcher LLP.
Recently, Gov. Perry signed into law a bill that expands the Texas Environmental, Health and Safety Audit Privilege Act, making its protections available to purchasers of equity or assets for the first time. This amendment finally closes a gap that had hindered broader use of an otherwise very effective tool for management of environmental liabilities, says Benjamin Cowan of Locke Lord LLP.
A wave of large lawsuits could be coming against solar panel manufacturers, panel distributors and dealers and contractors — what can businesses expect when they turn to their insurance companies for help with these claims? Unfortunately, history shows that insurance companies will refuse to honor coverage and aggressively fight when policyholders are forced to sue, says Scott Turner of Anderson Kill & Olick PC.
One way to ensure that you have your appellate bases covered despite the frenzy of trial is to have an appellate specialist review your proposed verdict form for preservation issues. This modest investment at the trial stage can help ensure that any appellate arguments you may make will have a solid basis in the record, say Dawn Solowey and Rob Carty of Seyfarth Shaw LLP.
Environmental measurement has two important parts — collection of representative samples and analysis — but despite many excellent references that instruct how to do both, it is actually very difficult, so a third step, data interpretation, is also paramount, says Neil Shifrin of Berkeley Research Group LLC.
The resolution of class actions or multidistrict litigation cases can present a number of challenges that call for the utmost in the mediator's skill and understanding. Though there is no typical complex litigation case, a mediator needs to recognize the special levels of complexity in these cases, such as litigating against "repeat players" and handling "follow-on" cases, says James Rosenbaum of JAMS.