Environmental Litigation
What You Will Learn
This advanced course of study, now in its 33rd year, provides a unique opportunity for private and public-sector environmental lawyers to refine their litigation skills by understanding better how litigation problems, substantive environmental law, and science relate to each other.
The course offers both lectures and demonstrations of a hypothetical case. This year's case involves an imminent and substantial endangerment claim under the Resource Conservation and Recovery Act (RCRA), and presents demonstrations of a hearing on injunctive relief, direct and cross-examination of experts in deposition and at trial, and the trial of technical issues.
A hallmark of this program over the years has been the way the audience and the faculty have interacted, not just informally but especially during program sessions. To preserve and encourage this kind and level of communication, ALI-ABA has consciously decided not to webcast or record the proceedings. You have to be there, and by being there you get much more out of it than you would were it recorded.
The faculty is drawn from the principal constituencies involved in environmental disputes: private firms representing plaintiffs or defendants, the EPA and the Justice Department, and public-interest groups. In addition, it includes one sitting and one former U.S. Magistrate Judge. The faculty members who appear as expert witnesses in the demonstrations also provide valuable insights on the relationship between lawyers and technical consultants and witnesses.
The course begins with a discussion of standing and concludes with settlement procedures. In between, it addresses superfund litigation and related toxic torts, as well as natural resource damages. Recurring discovery and case management issues also are discussed. The course does not concentrate on substantive law, but the procedural problems in air and water litigation receive attention in the context of discovery, expert proof, and citizen suit litigation.
In addition to the problems inherent in plenary litigation, difficult issues continue to arise under the National Environmental Policy Act (NEPA) and other informal agency decisions such as those arising under federal and state wetland laws. The procedural and associated issues relating to these actions receive attention throughout the program. Ethical issues, some of which are unique to environmental litigation, are explored from a practical litigation standpoint.
Time is reserved throughout the program for the faculty to address registrants' questions and to assist them in any other ways that might render the course more productive for their practices.
Planning Chair
(also on faculty)
Daniel Riesel, Sive, Paget & Riesel, P.C., New York
Faculty
James A. Bruen, Farella Braun + Martel LLP, San Francisco
Mark A. Chertok, Sive, Paget & Riesel, P.C., New York
Yueh-ru Chu, Assistant Attorney General, Environmental Protection Bureau, New York State Office of the Attorney General, New York
William M. Cohen, Of Counsel, Perkins Coie LLP, Washington, D.C.; Adjunct Professor, Washington College of Law, American University; Retired Chief, General Litigation Section, Environment and Natural Resources Division, U.S. Department of Justice
John C. Cruden, Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.
Carol E. Dinkins, Vinson & Elkins LLP, Houston; former Deputy Attorney General of the United States
Ronald J. Hedges, Nixon Peabody LLP, New York; former U.S. Magistrate Judge
Peter Hsiao, Morrison & Foerster LLP, Los Angeles
Adam M. Kushner, Director, Air Enforcement Division, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, Washington, D.C.
Dennis J. Krumholz, Riker Danzig Scherer Hyland Perretti LLP, Morristown, New Jersey
Chris Locke, Farella Braun + Martel LLP, San Francisco
Edward Lloyd, Evan M. Frankel Clinical Professor in Environmental Law, Columbia Law School, New York
Charles F. McLane, Ph.D., Principal, McLane Environmental, LLP, Princeton, New Jersey
Andrew Nicholson, Ph.D., Senior Geochemist and Vice Principal, Geomega, Inc., Boulder, Colorado
Craig B. Shaffer, U.S. Magistrate Judge, Denver
Donald W. Stever, Kirkpatrick & Lockhart Preston Gates Ellis LLP, New York
Stephen T. Washburn, Chief Executive Director, ENVIRON International Corporation, Emeryville, California
Kenneth J. Withers, Director, Judicial Education and Content, The Sedona Conference, Phoenix
David N, Zeehandelaar, Blank Rome LLP, Philadelphia
ALI-ABA Staff Attorney: William S. Stevens, Assistant Director, Office of Courses of Study (wstevens@ali-aba.org)
Lawyers who are full-time employees of federal, state, and local governments and government agencies are eligible to attend this course for $695. Please see within.
Program Schedule
TUESDAY, JUNE 24, 2008
3-5 p.m. Early Registration, Wolf Law Building
WEDNESDAY, JUNE 25, 2008
8:00 a.m. Registration and Continental Breakfast, Wolf Law Building
9:00 a.m. Introductory Remarks and Course Overview
9:15 a.m. Jurisdiction, Standing, Ripeness, the Record (and documents outside the record), and Deference to Administrative Agencies
10:15 a.m. Networking Break
10:30 a.m. Evidentiary Issues Relating to Technical Data
Introduction and exclusion of technical data and demonstrative exhibits; Admission and exclusion of reports and laboratory data; Hearsay issues in electronic evidence; Foundations for digital data
12:15 p.m. Lunch Break
1:45 p.m. Effective Advocacy in Air, Water, and Hazardous Waste Litigation
A technical discussion by leading environmental litigators
2:45 p.m. Networking Break
3:00 p.m. Discovery in Environmental Litigation
Electronic discovery; Data preservation and the "litigation hold"; Spoliation (electronic and otherwise); Establishment, maintenance, and waiver of privilege, including issues relating to environmental audits; Discovery of experts, including amendments to the Federal Rules of Civil Procedure
4:15 p.m. Faculty Demonstration: Application for a Temporary Restraining Order and Preliminary Injunction
5:00 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
THURSDAY, JUNE 26, 2008
8:00 a.m. Continental Breakfast
8:30 a.m. Environmental Enforcement Litigation; Citizen Suits and Defenses; Emerging Litigation under the Clean Air Act and RCRA
9:45 a.m. Networking Break
10:00 a.m. Experts: Daubert and Its Progeny; Finding and Selecting Experts; Direct Examination; Cross-Examination
12:00 noon Lunch Break
1:30 p.m. Faculty Demonstration: Deposition of an Expert
2:30 p.m. Networking Break
2:45 p.m. Government-Initiated Hazardous Substance Litigation
3:45 p.m. Private Multi-Party Hazardous Substance Litigation: Open Issues after Atlantic Research; Allocation and Defenses; Management of Complex Litigation
5:15 p.m. Adjournment for the Day
FRIDAY, JUNE 27, 2008
8:00 a.m. Continental Breakfast
8:30 a.m. Natural Resources Damage Litigation
9:45 a.m. Networking Break
10:00 a.m. Faculty Demonstration: Trial of a RCRA Endangerment Case
12:00 noon Lunch Break
1:15 p.m. Natural Resources Damage Litigation
2:30 p.m. Networking Break
2:45 p.m. Hot Topics: Global Warming Litigation; Emerging Environmental Litigation Issues and the Needed Skills
4:00 p.m. Relationship Between Statutory and Tort Litigation
5:15 p.m. Adjournment for the Day
SATURDAY, JUNE 28, 2008
8:00 a.m. Continental Breakfast
8:30 a.m. NEPA Litigation; "Little NEPAs"; Interaction with Wetlands Laws, Global Warming, and Cumulative Impacts
9:45 a.m. Networking Break
10:00 a.m. Negotiation and Settlement
11:15 a.m. Ethics and Professional Responsibility in Environmental Litigation
12:15 p.m. Adjournment
Total 60-minute hours of instruction: 22.5, including one hour of ethics
Suggested Prerequisite: Substantial experience in legal practice in subject matter
Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments; development of proficiency in performance of intricate and complex legal tasks within a narrow area
Level of Instruction: Advanced
Here's what registrants have said about this course:
"I think the quality of the presenters was superb. I feel like I've heard from some of the top talents in the field. I look forward to using the written materials as a reference in my office."
"Great presentations - interesting topics."
"This course is excellent, and in my experience, it always has been excellent."
"The faculty is always very accessible and willing to spend time answering questions."
"This is the most exceptional course I have attended in over 35 years of practice. The faculty was outstanding - both in terms of preparation and presentation. The organization and pace of the program left me wanting more. I came to the conference with the expectation that a percentage of the material would be of particular use and/or interest. That percentage turned out to be 100%. I feel honored to have been able to attend and observe the exceptional skills of this faculty."
"Great course substantively; the demonstrations are extremely interesting and helpful! Will definitely attend again."
"Overall, very interesting, informative, educational! Thanks!"
"Excellent presentations of issues in environmental litigation. Faculty is top notch. The course materials serve as an excellent reference. The ethics presentation was very good, on point and better than 99% of the ones usually done."
