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American Bar Association



How to Speak and Not Speak When the Feds Come Calling

By Solomon L. Wisenberg

A primer for lawyers and their clients on how to handle verbal interactions with law enforcement during a white-collar investigation.

In Chemical Litigation, Toxicology Fundamentals Matter

By Lucy Fraiser

Toxicologists can help build a chemical exposure case by linking the plaintiff to the released chemical and determining the dose incurred.

2016 Updates to the Oil and Gas NSPS Finalized, Immediately Challenged

By Karen Aldridge Crawford

North Dakota filed a petition for review of the EPA's new source performance standards for reducing methane emissions.

Eighth Circuit Rejects Class Certification in Environmental Contamination Case

By Aphrodite Kokolis and Alex Garel-Frantzen

Class action requirements can be difficult to establish in the environmental context because issues of liability, causation, and damages are individualized.

The Courts Move at Lightning Speed Toward a Decision on the EPA's Clean Power Plan

By Aaron M. Flynn

An update on the litigation in the D.C. Circuit and the U.S. Supreme Court.

Who Can Rule on the Clean Water Rule?

By Tavo True-Alcala and Megan Baroni

A three-judge panel of the Sixth Circuit issued an opinion, a concurrence, and a dissent.

New Jersey Appellate Division Declines to Impose Personal Liability for Cleanup Costs

By John J. DiChello

A mere assumption, the Appellate Division emphasized, is entirely insufficient to justify piercing a corporate veil.

Court of Appeals Upholds Maryland?s Flexible Approach to Stormwater Permitting

By Rafe Petersen and Andrew H. "Andy" Emerson

The ruling paves the way for counties to seek innovative private sector solutions.

The Responsible Corporate Officer Killed the LLC

By John R. Bashaw and Mary Mintel Miller

A look at the RCO doctrine through the case law of Connecticut and other states that have adopted similar legal theories.

Measure of Damages for Real Property

By Kenneth Anspach

Exploring how these measures were developed and the circumstances under which they apply.

Eighth Circuit Divided on Scope of Arranger Liability

By Irvin M. Freilich and Shawn M. LaTourette

Why it is important that companies create a record clarifying the commercial value of the material being sold.

No Safe Harbor: Can New Jersey Face Liability under State Spill Act?

By Paul M. Hauge

There is considerable irony in the courts' unequivocal rejection of the positions advanced by the state.

Pennsylvania Companies Are Allowed to Seek Pre-Enforcement Declaratory Relief

By Kenneth S. Komoroski, Matthew H. Sepp, and Daniel Carmeli

The state supreme court's decision potentially changes the legislative and rulemaking processes in the state and materially changes the settlement negotiation posture for businesses.

EPA's Clean Power Plan Sets the Stage for a Return to the Supreme Court

By Aaron M. Flynn

It is hard to imagine the High Court deciding not to weigh in.

New Life for Underground Storage Tank Regulation

By Charles M. Denton, Tammy L. Helminski, Amy E. Smith, Michael T. Scanlon, and Kenneth W. Vermeulen

Changes to the federal regulations applicable to USTs may have significant impacts on owners and operators.

Emhart v. United States: Another Failed Attempt to Prove Divisibility under CERCLA

By James P. Ray and Megan E. Baroni

Add the Centredale Manor Restoration Project in North Providence, Rhode Island, to the list of sites where a court has denied a CERCLA divisibility defense.

New Jersey's Appellate Division Opens Door to Spill Act Claims Against the State

By John J. DiChello

Responsible parties now have a second, often ignored, possible avenue of recovery of cleanup costs under the Spill Act.

The Latest Development in Arranger Liability Law

By John J. DiChello

The Fourth Circuit held that an electric utility lacked the requisite intent to "arrange for disposal" of hazardous substances.

The Law by Circuit on Arranger Liability

By John J. DiChello

Recent decisions from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits.

How to Minimize the Risk of Arranger Liability

By John J. DiChello

Lessons learned from recent cases.

Nutrient Trading as Clean Water Strategy in the Interstate Context

By Sarah T. Babcock

The public at large is unlikely to rank nutrient pollution among the top threats to water, but excess nutrient levels in national watersheds are a serious concern.

Sediment Update: A Summary of the Procedural Status of a Collection of Sites

By Mark Myers, Drew Pearsall, Brian Freeman, and Megan Baroni

These sites bear close watching in the new frontier of CERCLA activity.

Federal Court Rules in Favor of Volumetric Approach to Divisibility

By Shawn M. LaTourette and Irvin M. Freilich

The Eastern District of Wisconsin ruled in favor of a volumetric approach to CERCLA divisibility in the Fox River sediment cleanup case.

Environmental Whistleblowers' Rights

By Allan Kanner

An introduction to the federal laws protecting the rights of whistleblowers, prohibiting retaliation, and giving the right to monetary and other relief.

Fracking Debate: The Importance of Pre-Drill Water-Quality Testing

By Teodoro Bosquez IV, Daniel Carmeli, Jeremy Esterkin, Mae Kieng Hau, Kenneth Komoroski, Camarin Madigan, and Matthew Sepp

Baseline data are invaluable for oil and gas operators, the public, and regulatory officials.

Mass Tort Claims Administration and Handling: Lessons from Deepwater Horizon

By Peter Knight and Alex Judd

A process intended to control costs and limit exposure has resulted in an unintended surplus of both.

District Court Holds Utah Prairie Dog Protection Unconstitutional

By Damien M. Schiff and Paul J. Beard

The court reasoned that the regulation of prairie dog takes does not have a substantial effect on interstate commerce.

Expanding Definition of "Waters of the United States": The New Proposed Rule

By Karen Aldridge Crawford and Stacy Kirk Taylor

Assessing and comparing the proposed CWA rule with respect to the current regulations.

Rail-Yard Emissions Held Outside the Scope of Federal Regulation

By Raghav Murali

The Ninth Circuit determined that emissions of diesel particulate matter from a rail yard could not be enjoined under the RCRA.

Shipping Hazardous Materials: Offeror Liability for Noncompliant Acts of Third Parties

By David M. Loring

Offerors may choose to over-prepare materials for transport to minimize the potential for liability.

Lawyers Can't Be Luddites

By Bill Kammer

Times have changed, and lawyers must adapt their technology practices.

Apportionment of CERCLA Liability Post-Burlington

By Bina Joshi

Courts have interpreted the decision narrowly and have set a high standard for ?reasonableness? when it comes to apportionment.

Parko Provides Guidance on Contamination Class Actions

By Meaghan Boyd and Geoff Rathgeber

Lessons from the quintessential environmental putative class action.

John Crane Explodes the Pro Rata Myth

By Kenneth Anspach

The holding is applicable to any pollution or toxic-tort case involving a continuous trigger of coverage over a period of years.

2013 EPA Enforcement Statistics: Trying to Do More with Less

By Peter Knight

Last year saw an overall decrease in the number of enforcement actions by about 20 percent.

Sackett v. EPA: Shifting the Administrative Calculus

By Kenneth Anspach

Comparing the U.S. EPA's and Illinois EPA's approaches to judicial review of compliance orders.

Airborne CAFO Emissions: Beyond the Outer Limits of CWA Jurisdiction?

By Stewart D. Fried and John G. Dillard

The EPA hits another roadblock in requiring NPDES permits for poultry and livestock operations.

How Water Connectivity May Be Used to Expand CWA Jurisdiction

By Megan E. Baroni

A basic scientific premise could turn the tide of this controversial issue.

Residential PACE Programs Struggle, Commercial Programs Thrive

By Ashley L. Thompson

Push-back from the mortgage industry has stymied private homeowners.

Regulators Must Give Fair Warning of Forbidden Conduct or Requirements

By Kenneth Anspach

Industry may find itself subject to enforcement actions for engaging in conduct it believed to be acceptable.

Clean Air Act's Boiler MACT and Area-Source Rules Now in Force

By Lauren E. Godshall

Make a plan now to comply with the new regulations.

Pitfalls in the "Third Party" and BFPP Defenses to CERCLA Liability

By Peter Klock

CERCLA liability is difficult to shake, and these two defenses don't make it any easier.

Supreme Court Grants Certiorari in CSAPR Case

By David F. Williams and Sohair A. Aguirre

It remains to be seen how this unpredictable Court will ultimately rule on the merits of the Transport Rule.

Advice for Young Lawyers: Becoming an Expert on Experts

By George Abele and Adam Reich

Everything you need to know about handling expert witnesses.

Clean Water Act Math: When Addition Is Not Addition

By Kenneth Anspach

The Supreme Court weighs in what constitutes "addition of any pollutant to navigable waters."

Bernstein v. Bankert: CERCLA Claims by Settling Parties

By Bina Joshi

The decision potentially leads to even greater confusion than before.

CERCLA vs. New Jersey's Spill Act

By Irvin M. Freilich and Adam C. Arnold

What's the difference and when does it matter?

Pre-Tender Costs Should Be Recoverable Absent Prejudice

By George M. Plews and Ryan T. Leagre

Fairness and efficiency demand a more careful allocation of harm.

Fracking and NEPA's Categorical Exclusions

By Shell J. Bleiweiss and Jamie Davidson

Should CEs apply to federal loans on rural homes with hydraulic-fracturing leases?

Environmental Organizations Seek to Curtail Shale Development

By Margaret Anne Hill and Mary Ann Mullaney

A new litigation strategy is emerging in actions against oil and gas producers.

How EISs Are and Are Not Analyzing Climate Change

By Patrick Woolsey

The lack of a centralized repository for environmental impact statements has made them difficult to systematically track.

Climate Change Litigation: An Overview

By M. Camila Tobon

Four cases reveal courts' reluctance to weigh in on the debate.

Supreme Court: Agencies Must Give Notice Before Enforcing Regulations

By J. Elizabeth Poole

Two recent decisions have affirmed regulated industries' right to fair notice of federal agencies' interpretations of the laws they implement.

Good-Bye to Joint and Several Liability in Private CERCLA Actions

By Kenneth Kilbert

Who is responsible for paying orphan shares?

Extending Oil and Gas Leases to Their Secondary Term

By Kevin K. Douglass and Christopher M. Buell

Recent activity in the Marcellus Shale has revived interest in this issue.

E-Discovery Costs: The Loser Pays for What, Exactly?

By Jennifer M. Williams and Tara S. Lawler

A very important question may be awaiting you at the end of litigation.

Duties of Local Counsel: More Expansive Than You Think?

By Stephen L. Miles

Don't be held responsible for the mistakes of national counsel.

Rule 23(b)(2) Certification after Wal-Mart v. Dukes

By Adam C. Dembrow

Some day it may become impossible to certify claims for monetary relief under Rule 23(b)(2), but, for now, it is possible in a narrow range of circumstances.

Lone Pine Procedure Successful in Fracking Case

By Daniel J. Dunn, Anna K. Edgar, and Andrew C. Lillie

An unconventional case-management strategy resulted in the complete dismissal of a case.

Sackett at the Supreme Court: A Win for Agency-Regulated Entities

By J. Elizabeth Poole

The EPA loses a battle on enforcement actions under the Clean Water Act.

NEPA and Renewable Energy Practices: Streamlining Sustainability

By Katherine Kennedy and Eric Andreas

The DOI moves quickly to comply with Obama administration policy.

Remaining Risks of Open Communications with Experts in Federal Court

By Deborah A. Vennos

The new federal rules significantly narrow the scope of expert discovery, but not without some notable exceptions.

Defense of Foreclosure of Statutory Liens for User-Charge Fees

By Kenneth Anspach

An Illinois water reclamation district ordinance highlights the means to defend against statutory foreclosure.

The Rise of Fracking and Associated Litigation

By James Eimers and Liz Klingensmith

Production companies hoping to avoid lengthy and costly discovery proceedings must understand plaintiffs' pleading requirements to survive motions to dismiss.

Government Action Does Not Equal Proximate Causation

By Knight S. Anderson

The EPA has listed listed trichloroethylene in the EPA Integrated Risk Information System database as carcinogenic to humans, but the action is a classification based on estimated risk and purpose, not a pronouncement of a presumption on proximate cause.

Fracking's Alleged Links to Water Contamination and Earthquakes

By Barclay Nicholson, Kadian Blanson, and Andrea Fair

The jury is still out on the environmental effects of hydraulic fracturing.

Managing a High-Volume Practice: Tips for Young Attorneys

By Melisa A. San Martin

By implementing basic but essential strategies into your everyday practice, you can effectively and efficiently progressed toward managing a high-volume caseload.

Emerging Risks in the Design and Construction of Green Buildings

By Christopher Nutter

The widespread adoption of green standards creates risks for almost any new building.

Arranger Liability under CERCLA after Burlington Northern

By Andrew J. Scholz and Matthew D. Cabral

Few arranger-liability cases are summarily decided, even though the plaintiff must prove that the defendant intended to dispose of hazardous materials at a Superfund site.

The Long, Winding Journey of Boiler MACT and CISWI Rules

By Karen Aldridge Crawford and Stacy Kirk Taylor

The development of these regulations has much in common with cross-country vacations in the family station wagon.

A Litigator's Guide to Working with E-Discovery Consultants

By Matthew Prewitt

Several years after the FRCP amendments, the words “electronic discovery” still inspire both fear and loathing for many in-house counsel.

ERAs and NRDAs: When Policy Masquerades as Science

By Daniel W. Smith, Ph.D., and Steven M. Jones, Ph.D.

Scientists and lawyers do not always see eye to eye about what constitutes good science.

Mentoring: The Rules of Engagement

By Patricia K. Gillette and Katherine M. Larkin-Wong

The authors, who were matched in a mentoring program, offer their "rules of engagement" for forming a successful mentoring relationship.

U.S. Supreme Court Relieves Power Companies in Unanimous Opinion

By Brian R. Smith, Sorell E. Negro, and Evan J. Seeman

The journals of Lewis and Clark helped support a Montana power company's contention that the Great Falls reach is not navigable.

Social-Welfare Implications of Liability Rules in Major Damages Cases

By Dr. Debra J. Aron and Dr. Francis X. Pampush

Economic insights and social-welfare implications can guide where we draw the boundaries for liability in major environmental damages cases.

For Young Lawyers: "Preservation" in the Constant Litigation Environment

By Meaghan G. Boyd

In essence, the duty to preserve evidence turns on case-specific, fact-intensive inquiries of "when" and "what."

Mediating Environmental Property Matters

By Doug Simpson

Environmental matters often are exceedingly complex scientifically or technically—challenging parties, attorneys, and mediators.

Justice Scalia Uses "Foreign Sources" to Support Judicial Takings

By Joseph Z. Fleming

The plurality opinion in Stop the Beach Renourishment references woodchucks, the Queen of Hearts, and Orwell.

State "Preemption" Arguments Asserted in Ongoing Fracking Debate

By Andrew Scholz

Communities are concerned about fracking's possible effects on air quality and to drinking water.

Overview of Litigation Challenging EPA's Greenhouse Gas Regulations

By Jeremy C. Marwell

The author provides an in-depth review of the ongoing trial and appellate litigation challenging the EPA's widening regulatory authority over greenhouse gas emitters.

Federal Courts Can’t Regulate Greenhouse Gases under Common Law

By Katerina Milenkovski

The Clean Air Act has displaced federal common law by delegating regulatory authority to the EPA.

Proper Recovery of "Compelled" Costs of Response under CERCLA

By M. Camila Tobon

The question of "compelled" costs that are neither incurred voluntarily nor incurred by reimbursing another party was left open by the Supreme Court. It has now been answered.

Value Assurance Programs: A Case Study in the Model City

By Christina M. McLean and Jerry M. Dent II

Absent health claims, property owners are primarily concerned with protecting the value of their home. A VAP is a direct means to address fears of property-value diminution.

The Bermuda Form, Environmental Pollution, and Property-Damage Claims

By Julian Miller, Stephen Turner, and Jeffrey M. Pollock

The Bermuda Form may be important in certain environmental cases where insurance coverage is in play.

Insurers' Duty to Settle in the Context of a Continuous-Trigger Case

By Kenneth Anspach

What is the scope of the insurers’ duty to settle in a case involving a continuous trigger of coverage? Is it pro rata, as the carriers would argue, or is it joint and several, which the insureds would assert?

Climate-Change Tort Thrown Out of Court

By Christina M. Landgraf and Joel T. Bowers

The Supreme Court decided that federal common-law public-nuisance claims could not be maintained against carbon-dioxide and GHG-emitting entities.

The Intersection of Eminent Domain and Environmental Contamination

By Orell Anderson, Jerry English, Keith Mccullough, John Schepisi, and Stephen Valdez

One of the most problematic issues in the area of eminent domain has to do with environmental contamination, either real or perceived, found during expropriation.

EPA Stays New Boiler MACT Standards

By By Karen Aldridge Crawford and Stacy Kirk Taylor

The EPA announced that it was staying indefinitely the effective dates for the new emission standards for boilers (MACT standards) that the EPA issued in February of this year.

The Historian's Valuable Role in Environmental Litigation

By Michael C. Reis and W. David Wiseman Jr.

Retaining a professional historian as an expert witness can be useful in avoiding the limited perspective and fading memories of eyewitnesses and the perception of bias.

The Importance of Pro Bono Work in Professional Development

By Brian J. Murray

During this poor economy, pro bono work provides an excellent means to develop one’s craft.

The Effects of the Deepwater Horizon Final Report

By Jonathan K. Waldron

The article highlights the major recommendations of the National Commission's report and potential impacts on future legislation and the oil and gas industry.

Idaho District Court Holds Government Liable as an Arranger

By Jacy T. Rock

It is another in a long line of post-Burlington Northern cases interpreting the scope of arranger liability and may have important implications for cleanup on federal lands.

RCRA Hazardous Waste Regulations—A Cautionary Tale

By Charles M. Denton and Barbara A. Magel

Two recent decisions have reminded all counsel working with the RCRA of the limitations and risks inherent in proceeding pursuant to informal agency interpretations.

What Deepwater Horizon Gulf Coast Claims Facility Means for You

By Jonathan K. Waldron, Jeanne M. Grasso, and Joan M. Bondareff

Any party suffering damages or seeking reimbursement for removal costs as a result of the Deepwater Horizon casualty should consider submitting a claim for an EAP.

U.K. Solvent Schemes Can Significantly Impact U.S. Policyholders

By Patrick McGrath and Christopher McClure

Solvent schemes in the United Kingdom can impact U.S. policyholders by establishing deadlines by which claims for historic CGL coverage must be made.

Seeing Underground: Visualizing Key Issues in Contamination Cases

By Steven Rushefsky

One of the biggest challenges in environmental cases is supporting expert witnesses as they testify about their findings and test results to the judge and jury.

CERCLA Collateral-Source Ruling Stands No Double Recovery

The Supreme Court denied plaintiff Robert Friedland’s petition for certiorari in Friedland v. TIC-The Industrial Co., U.S., No. 09-551, certiorari petition denied Jan. 11, 2010.

Removing a Case to Federal Court: Are You Ready?

By Jacy T. Rock

One of the first tasks a new lawyer often encounters is removing a case from state court to federal court. While removal can be a simple, routine matter, it can also be nerve-wracking.

EPA Significantly Increases Its National Enforcement Priorities

By Eric Andreas

Since taking office, Environmental Protection Agency (EPA) Administrator Lisa Jackson has stated on several occasions that “EPA is back on the job.”