2021 - dealing with COVID and other changes in the practice of law

As a solo practitioner using the assistance of other lawyers and legal assistants on an as-needed basis, I have long prided myself on a combination of efficiency and the ability to respond to many different client situations. Those include Michigan court cases, litigation in other jurisdictions, agency negotiations at the state and federal level, administrative proceedings, appeals, arbitration and other dispute resolution, and more. Key tools used to be fax and fed ex, with email taking over much of the communication. Conferencing services. Availability 24/7. But more recently, we have added Zoom as a tool and it is useful not only for remote court hearings but also for client meetings, discovery, negotiations with adverse parties, and many other aspects of the practice of law.

Having practiced in many jurisdictions from one or two office locations for much of my career, I have now gone back to keeping only one main office and have let go of office space in multiple jurisdictions as unnecessary.

The practice of law has not changed at its core - careful research, familiarity with the law and procedure and a dedication to staying updated and researching recent developments, respect for opposing parties combined with zealous work to best represent the client’s interests. But with covid and technology developments, many parts of the work that once took more time for travel have become more efficient. Many who would not have considered meeting by phone are now getting comfortable with meeting remotely via a service like Zoom. Judges are more and more agreeable to saving all parties and counsel substantial travel time for hearings, especially status conferences, motion hearings and similar short meetings.

Bar associations are trying to keep up. Larger firms may downsize their space to a practice closer to that used by attorneys like me, whose combined goals are quality of work and representation plus efficiency in how the client goals are met. Clients are looking for responsiveness, skill, experience and a willingness to do the work required to proceed. Those things have not really changed.

Practice changes and yet it also stays the same. The Superfund and property cases of 30 years ago continue unabated. Natural resource cases change with legislated amendments and differing practices and commercial and social priorities. The breadth and variety of environmental and natural resources law remains its hallmark, with this expansive but still young and growing area of law and practice always changing in some way.

Let us know how we can help.

Five Years Later: Burlington Northern and Apportionment

It has been five years since the United States Supreme Court reversed the Ninth Circuit Court of Appeals in Burlington Northern & Santa Fe Railroad v. United States, 556 U.S. 599 (2009). At the time, many thought the decision instructed trial courts to apportion Superfund liability more liberally. Five years later, it seems likely that this reading of the case was wrong. Trial court judges, at least, have not found Burlington Northern to significantly alter CERCLA apportionment jurisprudence. A recent review of the case law concluded that between 2009 and 2014, "[o]nly two out of more than twenty cases citing to the apportionment holding in Burlington Northern divided harm pursuant to § 107. [ … T]he two courts that have apportioned harm have done so without acknowledging a change in law." Wetmore, Joint and Several Liability after Burlington Northern: Alive and Well, 32 Va Envtl. L. J. 27, 41-42 (2014). While many in 2009 saw the Ninth Circuit's decision Burlington Northern as a swan song for CERCLA's joint and several liability, the effects of the Supreme Court's reversal have in hindsight appeared much more muted.

Why were so many commentators mistaken about Burlington Northern? It is true that the Supreme Court accepted the trial court's rough apportionment, complete with its fifty percent "uncertainty factor." At the same time, though, the Court was careful to signal its approval of the "seminal opinion of the subject of apportionment in CERCLA actions," United States v. Chem-Dyne Corp., 572 F. Supp. 802 (1983), and Chem-Dyne's reliance on the Restatement (Second) of Torts (Burlington Northern, supra 613), not the "more apportionment-friendly" Restatement (Third) of Torts. Wetmore, supra 39. It is also worth noting that no part of Burlington Northern was an explicit change in CERCLA apportionment jurisprudence or a rejection of prior case law. The Supreme Court did reverse the Ninth Circuit, but it did so simply by applying well-established precedent.

Commentators also failed to note the significance of the procedural posture of the case. Burlington Northern did not involve any dispute about the principles that govern apportionment. Burlington Northern, supra 615. The Supreme Court was simply tasked with determining whether the record supported the judgment below: "The question [before the court] is whether the record provided a reasonable basis for the District Court's [apportionment]." Ibid. Here, deference was owed to the district court, particularly given the factual complexity of the litigation. Judy, Coming Full CERCLA, 44 New Eng. L. R. 249, 290 (2010).

Finally, the Ninth Circuit's analysis notwithstanding, the Burlington Northern Superfund site was much less complex than it could have been. It was small, contaminants were segregated and traceable to individual actors, and the potentially responsible parties' activities were for the most part relegated to several discrete leaseholds on the property. Wetmore, supra 45; Burlington Northern, supra 617.

For better or worse, Burlington Northern is probably not the landmark apportionment decision some made it out to be. So, for many joint tortfeasors, the practical effects of Burlington Northern are likely to be limited, and joint and several liability remains the norm. To potentially liable parties, this will obviously be disappointing, but in many situations a § 113 counterclaim remains an adequate alternative to apportionment, since § 113 permits the court to allocate costs among liable parties using equitable factors. Wetmore, supra 50; 42 U.S.C. § 9613(f)(1). In fact, § 113 equitable allocation occurs in most § 107 cases brought by private parties. Ibid. So a sound litigation strategy rarely focuses on apportionment alone. (This "'scorched earth,' all-or-nothing approach to liability" was rebuked by the Burlington Northern trial court. Burlington Northern, supra 615.) Instead, the target of a § 107 suit should also consider whether the situation warrants a § 113 counterclaim or crossclaim.

Environmental Due Diligence in Transactions

Virtually every corporate real estate transaction requires environmental due diligence. The risk of purchasing property without knowledge of site contamination is that most jurisdictions impose liability for contamination on the property owner without regard to whether the property owner caused the spill, release or other disposal of chemicals.

In addition to this general concern, numerous statutes, from TSCA to RCRA and their state equivalents can create liability for investigation and cleanup or closure. This can be very expensive. The burden can transform a good deal into a liability.

Happily, using a qualified consultant to conduct due diligence under the supervision of an experienced environmental attorney can help you identify risks and make good business decisions how to manage those risks.

Due diligence includes review of historical site ownership, consideration of recognized environmental conditions, sampling of the soil and groundwater to confirm or disprove the presence of contamination, consideration of indoor air conditions, review of government agency records for historical site compliance (or non-compliance), wetlands restrictions, and more.

Just as you would want an engineer’s evaluation of the structural integrity of a building, for example, you should know the condition of the real property itself.

If there is contamination, you may qualify for financial assistance through the local brownfield authority. You may be able to trigger statutory protections against incurring liability. You can evaluate the potential for the contamination to affect your operations. And as you negotiate your transaction, you can consider including terms in the purchase agreement to avoid the seller shifting its responsibility to you as purchaser.

If actions are required to address the contamination, you can evaluate potential steps to install engineered controls or institutional controls such as deed restrictions (do not use the groundwater, for example), and in that light, consider modifying the terms of the transaction to reflect the assumed burdens.

Solo, Not Small

Many attorneys are solo practitioners rather than members of large firms. Some solo attorneys practice law on their own because they want to stay small in the type or size of cases they handle. Their focus may be representing only individuals or small companies and they may prefer to handle only small cases.

But solo does not necessarily mean small.

As a member of a large firm of over 200 attorneys, I handled regulatory cases and litigation that involved multi-million dollar cleanups and over 100 parties. While I used the help of my colleagues as needed, the team was normally not as large as five attorneys and/or legal assistants, much less 20 or 200. The apparent benefit of the large firm was the availability of others, even though they were rarely needed.

As a solo attorney, I continue to handle the same cases – and I have the same support systems. I have an assistant who works with me daily. I have other litigators and attorneys who specialize in environmental law to work with me on an ‘of counsel’ basis for any matter where a larger team is needed. And I have relationships with many law firms, some of which have offered to take me on ‘of counsel’ for a given matter if the case I am retained to handle calls for such support. Other resources that can support lead counsel such as me on a demanding case include remote support staff, contract paralegals, part-time document management specialists, consultants and more. In short, the same support systems are available to the solo practitioner and large firm alike.

Whether you are being sued in federal court over an expensive cleanup, trying to move an old site away from remedy failure and toward closure, working on a sediment cleanup in coordination with GLNPO under the Great Lakes Legacy Act, trying to find a solution to a multi-party site involving many companies with competing interests, or working on a complex business transaction that involves environmental issues, reach out for counsel who has experience and who can and will devote his or her time to your case. If you hire me, whether I am with a large firm or solo, you get me – my experience and my attention. The support we need will be put in place either way.

Protecting Wetlands and Property Owners’ Expectations

As we have become more cognizant of the need to protect water quality and more aware of the connections between groundwater, surface water, precipitation and climate, the usefulness of wetlands has come into clearer focus. Wetlands may protect surface water from runoff and contamination threats, reduce flood damage and provide habitat for many species of plants and animals. But in regulating the use of property containing wetlands, do we go too far in treating all wetlands as equally valuable?

Consider six scenarios:

1. A retiree wants to ‘improve’ wetlands he owns. He digs a pond to enhance migratory waterfowl habitat.
2. An older couple purchases a lot on a popular lake for their retirement home. All the neighbors have filled in their properties with soil for lawn and with sand to the water’s edge. They want to protect the wetlands near the shore on their lot.
3. The department of transportation builds and maintains highways across the state. They have to manage the rights of way, shoulders, and intersections to provide for safe travel and that means filling in wetlands in many locations.
4. A developer wants to take her 100 acres and develop it with a golf course and homes. The property includes fields, woods and wetlands in a variety of locations, including along a stream that traverses the property.
5. A sand dune property sits between the lake and an inland stream where there are wetlands. The shifting sands move and, in some places, fill in the wetlands.
6. A farmer works acreage made arable years before through drainage of former wetlands. He needs to be able to maintain his drainage ditches and, in some places, to expand the usable land in the same manner to address spring flooding issues.
7. A city proposes to clear the sand along a beach that has become overgrown with weeds since the lake level dropped over the last decade. The lake level historically has fluctuated up and down, with the plant growth naturally disappearing in high water years.

In each of these cases, is the value of the wetlands the same? Does the value depend on site-specific factors? Is it a wise use of government resources to oversee these activities? How does one balance the close scrutiny paid in some cases and not in others?

We have a complex, multi-layered regulatory framework that challenges anyone with good intentions and can seem draconian in its insistence that all wetlands are equally valuable. Environmental regulation is maturing. We discovered the value of wetlands and are protecting them. Now let’s step back and find ways to inject a rule of reason into that protection. And let’s consider the value of other types of landform and habitat (meadows, grasslands, forest, riverbed, shoreline, and more), as well.

Achievements and Transitions

After a year serving as chair of the Environmental Law Section of the State Bar of Michigan, I have passed the gavel to the new chair at the end of September, and will now serve in an advisory capacity as immediate past chair. My firm entered its fifth year in August. USNews named the firm one of the best environmental law firms. The Martindale-Hubbell rating of AV-Preeminent continues. The Best Lawyers and Superlawyers recognitions continue year to year for my work in environmental law and mediation.

I see other firms publicizing these recognitions in press releases and ads. But I remain convinced that the review that matters the most is what my clients think of my work. The primary reason I am busy is clients who keep me involved over the years, who send new work my way and refer me to their colleagues. Similarly, colleagues with other firms, not only in Michigan but in other jurisdictions, who refer their clients to me when they have conflicts, who get me involved as local counsel, or who refer their environmental work to me when they do not have that expertise are not only key resources but are to me the best measure of my success.

Work has been steady and varied, as usual. Litigation continues over Great Lakes shoreline rights, development of critical sand dunes, and other riparian rights disputes. MDEQ enforcement over alleged permit violations continues to present challenges. US EPA remains engaged in cooperative work on Great Lakes Legacy Act sites. RCRA corrective action challenges persist. Settlement of underground storage tank litigation was finally resolved with complete payment. And the challenge of sorting out the environmental due diligence issues in real estate transactions continues, despite continued modification of Part 201.

The practice of environmental law for corporations often arises out of issues of fairness. In my experience, companies have a product or service focus that is consistent with sound environmental management. But the rules of environmental compliance are not their primary focus, there can be challenges incorporating practices into the corporate scheme. Most often, however, the nature of the legal work is responding to regulatory actions that create substantial exposure or threaten unfair results. Look back at major environmental litigation rulings. By and large, they tend to focus on sorting out what is fair – how does the (often new and perhaps confusing) law work; what has been done that is compliant and/or non-compliant or violative of the law and regulations; and how should responsibility be assigned, shared, shouldered?

Environmental law is complex because it involves science as well as policy, it is evolving, it is expensive, and it is important. It makes for a great area of practice.