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.
With a close decision on the question of cap and trade auctions as a tax and at least one appeal of the recent Sacramento Superior Court judgment likely, the fight over the California cap and trade program is far from over. Other states are closely observing legal challenges to California's sweeping AB 32 program and assessing its effectiveness and economic impact, say attorneys at Stoel Rives LLP.
In light of the proposed e-discovery amendments to the Federal Rules of Civil Procedure, businesses need to set themselves up to efficiently respond to discovery and requests for information from their counsel by implementing and following document-control policies as part of normal business practices. The failure to do so will eventually consume vast amounts of employee time, say Steven Cvitanovic and Colin Murphy of Haight Brown & Bonesteel LLP.
Recently, the California Department of Conservation, Division of Oil, Gas & Geothermal Resources issued two key documents relating to hydraulic fracturing. Of keen interest is whether these new rules will permit development of the Monterey Shale in a manner that is competitive with the development of oil reserves elsewhere — or whether government involvement will delay development of the world’s largest, deep shale-oil play, say attorneys at Latham & Watkins LLP.
Although ASTM International has characterized its recently revised standard for phase 1 environmental site assessments as a clarification of its previous version, a number of these changes are substantive in nature and likely to increase the costs of phase 1 reports, says Larry Schnapf at Schnapf LLC.
What is the thinking as to whether leaky air conditioner cases warrant multidistrict litigation treatment? On Dec. 5, the Judicial Panel on Multidistrict Litigation heads to Vegas to find out. This will bring a temperature shift in more ways than one from the September hearing, where the panel considered a potential MDL proceeding arising from allegedly defective clothes dryers, says Alan Rothman of Kaye Scholer LLP.
The decision in County of Santa Clara v. Superior Court of Santa Clara was based on policy, not statute. The California Supreme Court was convinced by the theory that government attorneys could maintain control over private counsel retained by contingency fees. The reality of the experience with the Orange County Water District emphatically demonstrates otherwise, say Jeffrey Dintzer and Nathaniel Johnson of Gibson Dunn & Crutcher LLP.
In addition to continued headline-grabbing litigation involving pharmaceutical companies in the wake of PLIVA Inc. v. Mensing, 2013 brought a number of important cases informing everything from class certification questions and product labeling trends to False Claims Act liability and fracking disputes, say attorneys at Weil Gotshal & Manges LLP.
Proposition 6 and its related enabling legislation provide a unique opportunity for Texas to begin addressing its significant water infrastructure needs. But, as with any ambitious plan, the program faces a variety of challenges, including achieving a proper (and politically acceptable) balance between urban and rural needs and navigating through ongoing water rights disputes, say C. Brian Cassidy and Brian O’Reilly of Locke Lord LLP.
The Federal Trade Commission’s recent actions against nine companies making allegedly deceptive environmental marketing claims send a strong message to companies about the agency's enforcement priorities and their own need to possess adequate substantiation for claims about the environmental benefits of products, says David Mallen at Loeb & Loeb LLP.
On Nov. 7, the Ninth Circuit largely upheld the U.S. Environmental Protection Agency's approach under the Federal Insecticide, Fungicide and Rodenticide Act in registering the first recognized nanopesticide. Despite a remand to resolve certain issues, the EPA and nano stakeholders have reason to be pleased, say Lynn Bergeson and Timothy Backstrom at Bergeson & Campbell PC.