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ALI-ABA Course of Study Environmental Litigation at And ALI-ABA Course of Study Environmental Litigation At and sponsored with the cooperation of the University of Colorado School of Law June 21 - 24, 2006 Boulder, Colorado TABLE OF CONTENTS Page PROGRAM xi FACULTY PARTICIPANTS xiii FACULTY BIOGRAPHIES xv STUDY MATERIAL 1. Standing and Rights of Action in Environmental Litigation 1 By Roger Beers Table of Contents 3 Study Outline 5 2. Ripeness and Exhaustion in Environmental Litigation 57 By Roger Beers Table of Contents 58 Study Outline 59 3. The Nature of the Administrative Record 73 By William M. Cohen 4. Litigating the Environmental Administrative Law Case 95 By Daniel Riesel 5. Use and Misuse of Technical Data: Telling the Scientific Story to Scientific 117 Virgins By Elaine L. Spencer 6. Legal Strategy, Storytelling, and Complex Litigation 129 By Allan Kanner and Tibor Nagy Table of Contents 130 Study Outline 131 7. Release Reporting 161 By James A. Bruen 2006 Summary of Major Federal Release Reporting Requirements 163 2006 Summary of Major California Release Reporting Requirements 172 8. Current Issues in Discovery in Environmental Litigation - 2006 189 By Allen Kezsbom vii Table of Contents 190 Study Outline 191 9. Discovery of Digital Information 257 By Ronald J. Hedges Notice Regarding Rule-Making Process 258 Table of Contents 260 Study Outline 261 Attachments 394 10. Complex Case Management 419 By Ronald J. Hedges Notice 421 Table of Contents 422 Study Outline 423 11. Preliminary Injunctions, and Stays Pending Appeal in Environmental 523 Litigation By Daniel Riesel Guide to Article 525 Study Outline 526 Endnotes 557 Order to Show Cause (Concord Village Owners, Inc. v. Barram (E.D. N.Y., CV-972607 (ADS/VVP))) 583 12. Litigating in the Bankruptcy Court 589 By Jack M. Zackin 13. Scientific Proof and Examination of Experts in Environmental Litigation 607 By Daniel Riesel Scope of Article 609 Study Outline 612 Endnotes 690 14. Embrace Tiger – Return to Mountain 701 By Anthony Z. Roisman Study Outline 703 Presentation Slides 716 15. General Advice for Experts Testifying at Deposition 721 By Stephen T. Washburn 16. New Developments and Trends in Clean Air Act Litigation and 727 Enforcement: New Source Review By Peter Hsiao, Max Sloves and Kristin Kellet viii 17. Private Party Hazardous Substances Litigation 739 By Peter Hsiao 18. Determining Liability and Allocation of Response Costs in Hazardous 747 Materials Litigation By Daniel Riesel and Ashley Miller Table of Contents 749 Study Outline 750 19. Trespass by Pollution: Remedy by Mandatory Injunction 807 By Anthony Z. Roisman 20. The Manual and CERCLA 815 By Ronald J. Hedges 21. Citizen Suits and Defenses Against Them 823 By Edward Lloyd Table of Contents 825 Study Outline 828 Appendix A: Federal Statutory Citizen Suit Provisions 858 Appendix B: State Citizen Suit Statutes 859 22. The Public Trust Doctrine, Parens Patriae, 861 and the Attorney General as the Guardian of the State's Natural Resources By Allan Kanner 23. Federal and State Hazardous Substance Litigation 923 By John C. Cruden John C. Cruden, CERCLA Overview 925 Table of Contents 925 Study Outline 929 John C. Cruden and Bruce S. Gelber, Federal Civil Environmental Enforcement: Process, Actors and Trends 984 U.S. Department of Justice, Environment and Natural Resources Division, Summary of Litigation Accomplishments – Fiscal Year 2005 1010 Selected 2006 Environment and Natural Resources Division Press Releases 1037 24. NEPA in the Courts 1051 By William M. Cohen Table of Contents 1052 Study Outline 1055 25. House & CEQ NEPA Task Forces 1131 By William M. Cohen 26. "Little NEPAs" and Their Environmental Impact Assessment Procedures 1139 By David Sive and Mark A. Chertok Study Outline 1141 ix Endnotes 1157 Appendix: Little NEPA Citations 1167 27. Federal Regulation of Wetlands 1169 By Mark A. Chertok and Katherine Sinding Scope of Article 1171 Study Outline 1173 28. Settlement Issues in Federal Enforcement Actions 1283 By Carol E. Dinkins 29. Ethics Considerations for the Environmental Lawyer 1301 By Carol E. Dinkins 30. Particular Ethical Problems in Environmental Litigation 1311 By David Sive Study Outline 1313 Study Outline 1313 Appendix: Retatement of the Law Third: The Law Governing Lawyers (excerpts) 1332 Appendix: RESTATEMEMT OF THE LAW THIRD: THE LAW GOVERNING LAWYERS (excerpts) 1332 §63: Using or Disclosing Information When Required by Law 1332 §66: Using or Disclosing Information to Prevent Death or Serious Bodily Harm 1334 §66: Using of Disclosing Information to Prevent Death or Serious Bodily Harm 1334 §67 Using or Disclosing Information to Prevent, Rectify, or Mitigate Substantial Financial Loss 1341 §67: Using or Disclosing Information to Prevent, Rectify, or Mitigate Substantial Financial Loss 1341 §109: An Advocate's Public Comment on Pending Litigation 1354 §109: An Advocate's Public Comment on Pending Litigation 1354 §128: Representing Clients with Conflicting Interests in Civil Litigation 1363 §128: Representing Clients with Conflicting Interests in Civil Litigation 1363 31. Proposed Federal Rule of Evidence 502: Attorney-Client Privilege and 1375 Work Product: Limitations on Waiver (April 26, 2006) By Kenneth J. Withers 32. U.S. EPA Glossary of Environmental Abbreviations and Acronyms 1387 x ALI-ABA Course of Study ENVIRONMENTAL LITIGATION Sponsored with the cooperation of the University of Colorado School of Law June 21-24, 2006 Boulder, Colorado PROGRAM Tuesday, June 20, 2006 3:00 p.m. Early Registration, Fleming Law Building Wednesday, June 21, 2006 8:00 a.m. Registration and Continental Breakfast, Fleming Law Building 9:00 a.m. Introductory Remarks and Course Overview – Mr. Riesel 9:15 a.m. Jurisdiction, Standing, Ripeness, the Record, and Deference to Administrative Agencies – Messrs. Beers, Cohen, and Riesel 10:15 a.m. Coffee Break 10:30 a.m. Use and Misuse of Technical Data – Dr. Morrison, Ms. Spencer, and Mr. Withers Use of technical data and demonstrative exhibits at trial 12:15 p.m. Lunch Break 1:45 p.m. Effective Advocacy in Environmental Litigation – Mr. Kanner (the Plaintiff's View) and Mr. Bruen (the Defendant's View); Commentator: Mr. Kezsbom Setting the theme and implementing it; Use of technical data before lay and technical triers of fact; Use of demonstrative exhibits 2:45 p.m. Coffee Break 3:00 p.m. Discovery in Environmental Litigation – Messrs. Kezsbom, Riesel, and Withers; Commentator: Judge Hedges New rules relating to electronic discovery; Data preservation and the "litigation hold"; Spoliation (electronic and otherwise); Obligations under Rule 30(b)(6); Establishing and maintaining privileged status of environmental audits; Discovery of experts 4:15 p.m. Faculty Demonstration: Applications for a Temporary Restraining Order, Preliminary Injunction, and Discovery – Judge Hedges, Mr. Kezsbom, and Ms. Spencer 5:00 p.m. Adjournment for the Day; Reception for Registrants and Faculty Thursday, June 22, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. The Resolution of Environmental Disputes in Bankruptcy Court – Mr. Zackin; Commentator: Mr. Hsiao 9:45 a.m. Coffee Break 10:00 a.m. Examination of Experts and Scientific Proof – Messrs. Hsiao, Kanner, xi 10:00 a.m. Examination of Experts and Scientific Proof – Messrs. Hsiao, Kanner, Kezsbom, Riesel, Roisman, and Zackin; Professor Lloyd; and Ms. Spencer Finding and Selecting Experts - Ms. Spencer and Professor Lloyd Daubert and its Progeny - Messrs. Roisman and Hsiao Direct Examination - Mr. Kanner; Commentator: Mr. Zackin Cross-Examination - Mr. Kezsbom 12:00 noon Lunch Break 1:30 p.m. Faculty Demonstration: Deposition of an Expert – Messrs. Beers, Bruen, and Kezsbom and Dr. Morrison 2:30 p.m. Coffee Break 2:45 p.m. Federal and State Hazardous Substance Litigation – Mr. Gold; Commentators: Messrs. Hsiao and Riesel 3:45 p.m. Private Multi-Party Hazardous Substance Litigation: Aviall and its Progeny; Allocation and Defenses; Management of Complex Litigation – Judge Hedges and Messrs. Riesel and Hsiao 5:15 p.m. Adjournment for the Day Friday, June 23, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. Relationship Between Statutory and Tort Litigation – Messrs. Roisman and Riesel 9:45 a.m. Coffee Break 10:00 a.m. Faculty Demonstration: Trial of an Environmental Case – Judge Hedges, Presiding; Messrs. Kanner, Beers, Roisman, and Washburn 12:15 p.m. Lunch Break 1:45 p.m. Citizen Suits and Defenses Against Them – Mr. Chertok and Professor Lloyd 3:00 p.m. Coffee Break 3:15 p.m. Enforcement Litigation: New lnitiatives: Criminalization of Enforcement; Defensive Strategies – Ms. Dinkins and Mr. Gold; Commentator: Mr. Lloyd 4:15 p.m. National Resource Damage Litigation – Messrs. Kanner and Cruden and Ms. Dinkins 5:15 p.m. Adjournment for the Day Saturday, June 24, 2006 8:00 a.m. Continental Breakfast 8:30 a.m. NEPA Litigation; "Little NEPAs"; Interaction with Wetlands and Similar Litigation – Messrs. Beers, Chertok, and Cohen 9:45 a.m. Coffee Break 10:00 a.m. Negotiation and Settlement – Judge Hedges, Ms. Dinkins, Mr. Cruden, and Professor Lloyd 11:15 a.m. Ethics and Professional Responsibility in Environmental Litigation – Ms. Dinkins, Messrs. Cruden and Withers, and Professor Lloyd 12:15 p.m. Adjournment xii ALI-ABA Course of Study Environmental Litigation At and sponsored with the cooperation of the University of Colorado School of Law June 21 - 24, 2006 Boulder, Colorado PLANNING CHAIR Daniel Riesel, Esquire Sive, Paget & Riesel, P.C. 10th Floor 460 Park Avenue New York, NY 10022 PLANNING CHAIR EMERITUS David Sive, Esquire Sive, Paget & Riesel, P.C. 10th Floor 460 Park Avenue New York, NY 10022 FACULTY Roger Beers, Esquire John C. Cruden, Esquire 202 Glenwood Avenue Room 2143 New London, CT 06320-3029 950 Pennsylvania Avenue, NW James A. Bruen, Esquire Washington, DC 20530 Farella Braun + Martel LLP Carol E. Dinkins, Esquire Russ Building, 30th Floor Vinson & Elkins L.L.P. 235 Montgomery Street 2300 First City Tower San Francisco, CA 94104 1001 Fannin Mark A. Chertok, Esquire Houston, TX 77002 Sive Paget & Riesel, P.C.
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