Environmental Litigation 2017:
Navigating Complex Hazardous Substances and Toxic Tort Cases Under CERCLA, RCRA, and Common Law

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Why You Should Attend

If you’re an environmental lawyer looking to win in administrative and judicial forums, this unique course is a must!

In just two days, attendees learn litigation strategies from experienced practitioners and judges, and gain a deeper understanding of the relationship among litigation problems, substantive environmental law, and science. This nationally-recognized course features:

Discussions on the potential implications of the new administration shifting more environmental regulation and enforcement to the states

Skilled faculty demonstrations

A collegial classroom setting

Networking with like-minded colleagues from across the country

Comprehensive written materials you’ll reference for years

What You Will Learn

Prepare for the future of environmental litigation and sharpen your skills and strategies at this one-of-a-kind program.

Under the Trump administration, environmental enforcement and litigation are likely to undergo significant changes, including a surge in citizen suits and state-initiated actions. This dynamic, advanced level course explores the real world procedural and practice problems faced by environmental litigators – including possible enforcement changes – and offers insights and tips for developing an effective case strategies. Hear first-hand from experienced private practitioners from both sides of the bar, the government, and the bench, and enjoy ample opportunities to learn and network with like-minded colleagues from across the country.

Topics include:

The effect of the Trump administration on environmental enforcement and litigation, such as shifting more responsibility to the states

State-initiated and citizen suit litigation: the new "enforcement" mechanisms?

Spoliation of physical evidence or ESI under amended Rule 37(e)

How and when to  make a Daubert motion to exclude an expert

The use of jury advisors, mock juries, and similar techniques

Mastering the complex CERCLA case

Consent orders, voluntary clean up agreements, and contribution protection

Natural resources damages assessments

A highlight of this course is its faculty-led trial simulations, including hearings on discovery disputes and another on authentication of key documents, followed by a trial simulation featuring the direct and cross-examination of an expert, all presided over by a federal magistrate judge. Watch skilled litigators demonstrate best practices for avoiding common problems in environmental litigation and get a judge’s perspective on their arguments and the issues.

Register today! Join fellow environmental litigators at this stand-out course and benefit from sophisticated analysis, real-world advice, and practical instruction.

Who Should Attend

Environmental lawyers and other legal professionals looking to gain the knowledge and master the skills needed to succeed in environmental litigation should attend this course.

Planning Chairs

(also on faculty)

Daniel Riesel, Sive, Paget & Riese, P.C., New York

Mark A. Chertok, Sive, Paget & Riesel P.C., New York

Faculty

Tami Lyn Azorsky, Dentons, Washington, D.C.

James A. Bruen, Farella Braun + Martel LLP, San Francisco

Christina M. Carroll, Dentons, Washington, D.C.

Nadira Clarke, Katten Muchin Rosenman LLP, Washington, D.C.

John C. Cruden, Former Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.

Deborah Goldberg, Managing Attorney, Earthjustice, New York

Robin L. Greenwald, Weitz & Luxenberg P.C., New York

R. Juge Gregg, Law and Policy Section, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.

Honorable Ronald J. Hedges, Dentons, New York; former U.S. Magistrate Judge, District of New Jersey (ALI Member)

Peter Hsiao, Morrison & Foerster LLP, Los Angeles

Thomas A. Mariani, Jr., Chief, Environmental Enforcement, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.

Andrea Okie, Vice President, Analysis Group, Inc., Boston

Craig J. Pritzlaff, Assistant Attorney General and Deputy Chief - Litigation, Environmental Protection Division, Office of the Attorney General of Texas, Austin

Jon Rohrer, PG, CHG, Principal Hydrogeologist, Roux Associates, Long Beach, California

Anthony Z. Roisman, National Legal Scholars Law Firm, P.C., Weathersfield, Vermont (ALI Member)

Justin A. Savage, Hogan Lovells US LLP, Washington, D.C.

Lemuel M. Srolovic, Chief, Environmental Protection Bureau, New York State Attorney General’s Office, Brooklyn, New York

Honorable Craig B. Shaffer, Magistrate Judge, U.S. District Court for the District of Colorado, Denver

Donald W. Stever, K&L Gates LLP, New York

ALI CLE Senior Program Attorney: Amy S. Weinberg

Program Schedule

THURSDAY, JUNE 22, 2017

8:00 a.m. Registration and Continental Breakfast

8:45 a.m. Welcome and Announcements – ALI CLE Staff

WEBCAST SEGMENT A

8:50 a.m. Introductory Remarks and Course Overview – Mr. Chertok

9:00 a.m. The Prerequisites: Recent Developments in Jurisdiction, Standing, Ripeness, and Judicial Review – Ms. Goldberg and Mr. Chertok

Standing, pleading, and proof

o Citizens suits and defenses

o Suits against agencies

Compilation of the record, evidence outside the record

Affirmative use of the Freedom of Information Act

Discovery in agency review cases

Judicial review involving guidance documents

Deference to administrative agencies and the scope of review; Chevron revisited

Pre-enforcement review

9:45 a.m. Managing and Using Electronic Data in Complex Environmental Cases - Hons. Hedges and Shaffer, Ms. Azorsky, and Mr. Chertok

The duty to preserve and the litigation hold

The 2015 Amendments: An overview

Cooperation and proportionality

Spoliation of samples and other physical evidence and spoliation of ESI under amended Rule 37(e)

Judicial management

10:45 a.m. Networking and Refreshment Break

11:00 a.m. Managing and Using Electronic Data in Complex Environmental Cases (cont.)

11:20 a.m.  Faculty Demonstration: Motion for Discovery of ESI - Hon. Shaffer, presiding; Mr. Chertok and Hon. Hedges

The necessary papers

Proof of proportionality

Waivers: privilege; social media

Hearing strategies

11:45 a.m. DOJ Perspective on Enforcement under the New Administration - Mr. Cruden

12:30 p.m. Lunch Break (lunch provided by ALI CLE)
 

WEBCAST SEGMENT B

1:30 p.m. Litigation in the New Era – Messrs. Cruden, Pritzlaff, and Srolovic

New approaches at DOJ and EPA

State-initiated litigation

New state-federal enforcement alignment

Collisions with the federal approach

Resurgence of citizen suit litigation

3:00 p.m. Networking and Refreshment Break

3:15 p.m. Scientific Evidence and Experts in Environmental Litigation – Mss. Azorsky and Okie and Messrs. Hsiao, Roisman, and Stever

Scientific evidence in the courts

Selection and qualification of experts

Preparation of experts

The expert’s report and deposition

Confidentiality and privilege

Daubert and its progeny

Motions to exclude experts: When and how to make them

Effective direct and cross examination

4:45 p.m. Faculty Demonstration: Daubert Motion - Hon. Hedges, presiding; Messrs. Roisman and Stever

Critical elements of the motion

Defenses against misuse of Daubert

Hearing strategies

5:15 p.m. Adjournment for the Day  

FRIDAY, JUNE 23, 2017

8:00 a.m. Continental Breakfast and Networking Session 

WEBCAST SEGMENT C

8:30 a.m. CERCLA Substantive Law and Trial Strategy – Ms. Carroll and Messrs. Mariani and Savage

Availability of Section 107 and/or Section 113 to private litigators

Joint and several liability; life after Burlington Northern

Arranger liability

Statutes of limitation and other defenses

o Piercing the corporate veil

o Dead and buried corporations

o Statute of limitation

o NCP compliance

Third-party practice and trial phasing

Consent orders, voluntary clean up agreements, and contribution protection

Allocation and apportionment

Strategy in the “big case”

o PRP organization

o Coping with Section 106 orders

o De minimis applications

o Practice before third-party neutrals

9:45 a.m. The Guerilla in the Closet: Natural Resources Damages – Mr. Bruen

Marshalling the NRD case

NRD assessments

Use of surveys and experts

The trustees’ case

The defenses and how to deploy them

10:30 a.m. Networking and Refreshment Break

10:45 a.m. Effective Trial Management and Strategy – Mss. Clarke and Greenwald and Messrs. Bruen and Hsiao

Effectuating the necessary proofs

Use of graphics

Use of mock juries

Application of key defenses

12:15 pm  Faculty Demonstration: The Simple Turned Complex -- Authentication of Key Documents - Hon. Hedges, presiding; Messrs. Chertok and Stever

The necessary steps

Ways to prevent admissibility

12:45 p.m. Lunch Break (on your own)

WEBCAST SEGMENT D

1:45 p.m. Faculty Demonstration: Direct and Cross-Examination of an Expert at Trial - Hon. Shaffer, presiding; Messrs. Bruen, Hsiao, Rohrer, and Stever

Direct and cross-examination of an expert followed by faculty discussion of common trial problems relating to experts in environmental litigation

3:20 p.m. Networking and Refreshment Break

3:35 p.m. Ethics for the Environmental Litigator - Hon. Hedges and Mr. Gregg

4:40 p.m. Adjournment

Total 60-minute hours of instruction: 13.5, including one hour of ethics

Suggested Prerequisite: 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

Click Here for MCLE Credit Information

Times

Eastern

Mandatory CLE Credit

Virtually all ALI CLE programs receive credit in AK, AL, AZ, CA, CO, CT, DE, FL, HI, IA, IL, IN, KS, KY, ME, MN, MO, MS, MT, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, OR, PA, PR, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV and WY. Upon request, ALI CLE will apply for credit in ID, LA, and RI. For more information about CLE or CPE credit, email TeamMCLE@ali-cle.org or call 1-800-CLE-NEWS (253-6397).

On-demand Course

Some jurisdictions limit the number of credits via on-demand (distance learning). We advise that you check your jurisdictions' rules regarding possible restrictions for on-demand or distance learning credit.

Important Note: On-demand courses cannot be consumed for partial credit. You must participate in the course in its entirety, regardless of length, to receive a certificate and credit.

Webcast

Several jurisdictions limit the number of credits to be taken via webcasts. Please check with your state regulator for possible limits in your jurisdiction.

In Person

MP3 CD-ROM

The Audio MP3 CD-ROM includes each course segment as a separate mp3 file which can be played on your PC, portable music device or if your car has a MP3-compatible CD-ROM player, in your car.

Also included on the CD-ROM is the digital edition of the coursebook in searchable, bookmarked PDF format. You will need to have Adobe Reader installed on your computer to view this file. To download Adobe PDF reader, visit Adobe.com.

Please use the product code AY022 if ordering over the phone or via fax.
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