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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, June 27, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will guide counsel on procedural and strategic challenges in defending citizen suits under the Clean Water Act (CWA). The panel will explain recent case law and regulatory developments that impact citizen suits and provide strategies to manage your clients' expectations and risks when facing citizen suits, including innovative approaches for the cost-effective settlement of claims.

Faculty

Jeff B. Kray
Managing Partner
Markel Law LLP

Mr. Kray’s practice focuses on water quality, water resources, and complex environmental litigation, including CWA permitting and regulatory compliance, and CERCLA site remediation. He has represented public and private clients throughout the west. Mr. Kray is a frequent speaker and writer on water law and policy and holds leadership positions in the Water Resources and Water Quality and Wetlands Committees of the ABA's Section on Environment, Energy and Resources.

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Tom Boer
Partner
Hogan Lovells

With a combined decade of experience working as a trial lawyer at the U.S. Department of Justice (DOJ) Environmental Enforcement Section and in the Environmental Protection Agency's (EPA) Office of General Counsel, Mr. Boer uses his government experience to effectively counsel clients as they navigate complex environmental enforcement actions and compliance issues. He represents companies, municipal utilities, and individuals in federal and state environmental litigation in defense of environmental enforcement actions and citizen suits, in response to catastrophic environmental emergencies and chemical releases, and in connection with site cleanup and cost recovery. He has advised clients on the vast array of environmental statutes in the U.S.

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Andrew M. Thompson
Partner
Smith Gambrell Russell

Mr. Thompson’s practice includes environmental, commercial and insurance-related litigation in state and federal court, as well as in state administrative court. He has represented and advised clients in connection with a range of environmental and commercial issues, including defending enforcement actions by the EPA and state environmental agencies, toxic tort litigation, CWA permitting and compliance, hazardous waste, groundwater contamination, environmental cleanup and emergency response and other environmental matters. Mr. Thompson serves as an adjunct professor at Emory University School of Law teaching a course in water law and environmental litigation.

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Description

The CWA provides authority to citizens to sue to enforce compliance with the CWA (including issuing permits) when they believe governmental agencies have not taken timely or sufficient action on alleged violations. With tight budgets, some federal and state regulators support citizen suits to alleviate the government's enforcement burdens and allow residents to remedy environmental issues.

Conversely, some industry stakeholders have raised concern about abuse of the citizen suit provisions due to suits over minor environmental infractions to generate attorneys' fees (which can be demanded in settlement or awarded in a successful citizen suit action).

The breadth of future citizen suits may grow due to recent rulings on groundwater and surface water interaction under the CWA. Some court decisions expand the CWA's jurisdictional reach to regulate discharges of pollutants to groundwater that reach the waters of the U.S.

Strategic efforts to encourage settlement have become increasingly important. Some parties have interpleaded third parties into CWA citizen suits as a potential defense to encourage cost-sharing and settlement, among other reasons. Statutory fee-shifting provisions allow prevailing plaintiffs to recover their costs and attorney fees, which can result in costly damages, which is why savvy counsel should always consider the benefits of strategic settlement.

Listen as our panel examines the most recent citizen suits under the CWA, focusing on defenses and strategies for litigating and settling these matters. The panel will discuss recent case law developments and provide best practices to minimize the risks of being hit with a citizen suit and effectively resolve such suits if they arise.

Outline

  1. Defenses
    1. Challenges to
      1. Notice
      2. Standing
      3. Jurisdiction
    2. Interpleading third parties into CWA citizen suits
    3. NPDES permit shield defense
    4. Others
  2. CWA regulation of discharges to groundwater and recent cases
  3. Litigation options
  4. Settlement strategies
    1. Typical settlement terms
    2. Injunction settlement terms
    3. Payment settlement terms
    4. Settlement tips and best practices

Benefits

The panel will review these and other key issues:

  • Court-tested litigation defense tactics to prevail on notice and standing in CWA citizen suits
  • Effective jurisdictional arguments relying on and differentiating between recent EPA actions and court rulings
  • Preemption of CWA citizen suits through state or federal agency settlements
  • How the CWA handles groundwater/surface water interaction
  • Effective settlement strategies