Environmental Consent Decrees: Negotiation Strategies, Available Defenses, Modifications, Pitfalls to Avoid
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Thursday, March 20, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE course will guide lawyers in negotiating consent decrees for violations of environmental regulations. Our panel will offer violation-specific best practices and present fellow practitioners with mission-critical pointers on the negotiation and drafting of critical consent decree clauses. The panel will also address how to avoid missteps in negotiating modifications of consent decrees after entry.
Mr. Riesel has litigated a wide variety of cases which include numerous environmental matters, white collar defense, civil rights, and commercial matters. His litigation has resulted in overturning Army Corps of Engineers wetland rules, vacating EPA’s promulgation of ocean dumping rules, and a dismissal of restrictions on the broad reach of RCRA citizen suits. Since 1980, Mr. Riesel has been an active participant in numerous CERCLA administrative and judicial actions, representing various Fortune 500 corporations. His litigation has resulted in the establishment of CERCLA defenses and the recovery of significant response costs. He recently successfully represented several industrial clients charged with environmental crimes. Mr. Riesel is a former Chief of the Environmental Protection Unit of the U.S. Attorney’s Office, Southern District of New York.
After 15 years of focusing on regulatory and other matters related to air quality, Ms. Vaccaro now helps lead the firm’s air practice group. She works with a range of clients, from petroleum refineries, power plants, and chemical manufacturers, to commercial and development entities. Ms. Vaccaro has extensive experience in counseling clients on compliance issues under federal and state air pollution control regulations, including virtually all aspects of the Title V permitting program. In recent years, she has spent considerable time negotiating agency enforcement actions alleging violations of regulatory requirements, including on behalf of several complex industrial facilities. Ms. Vaccaro has also handled litigation matters, with a particular focus on defending environmental permits against third-party appeals and other administrative challenges.
Negotiating settlement for violations of environmental regulations is a long and potentially arduous process. Negotiations over the resulting consent decree may have occurred against a continually shifting landscape over several years. The replacement of critical decision-makers, changes in the law, and differing enforcement priorities from one administration to the next can create significant challenges to crafting a long-range solution.
During the negotiation process, practitioners representing enforcement targets must also consider the potential for litigation if settlement is unattainable. This requires an ongoing evaluation of potential defenses and readiness to downshift into trial prep and a deep enough understanding of the issues and stakes to offer strategic advice on approaches to maximize the benefits of the process. Consent decree obligations may be more agreeable, for example, if the terms provide the target a strategic advantage over competitors regarding cost or innovation.
Listen as our panel of environmental attorneys shares from their deep experience negotiating consent decrees and provides other practitioners fresh insight on navigating the process, pitfalls to avoid, and how to maximize potential advantages along the way.
- Overview of consent decrees
- Violation-specific considerations
- Available defenses
- Enforcement actions
- Citizen suits
- Potential strategic advantages
- Modifying consent decrees
- Change of circumstances
- Change of law
- Force majeure
The panel will review these and other critical issues:
- Critical issues in drafting the decree
- Avoiding or modifying dangerous decree clauses
- Obtaining closure through careful drafting
- How can counsel leverage available defenses to gain better long-range footing when negotiating consent decrees?
- What adjustments should counsel make to accommodate apparent differences in enforcement priorities under the current administration?
- What steps can counsel take to manage change, law, and circumstances during the negotiation process?
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