Environmental law, which saw the same slowdown in transactional work other practices did along with decreased enforcement under the Bush administration, is showing signs of life in both lateral movement and practice niches.
The latest such move is the addition of environmental and insurance litigator Kevin J. Bruno to Blank Rome‘s Princeton, N.J., office. Bruno joined the firm, along with associate Kevin R. Doherty, from Robertson Freilich Bruno & Cohen, where he was a founding partner.
In the last two years, Bruno said the 22-lawyer firm saw itself losing out on large matters it had typically won from the larger firms given Robertson Freilich’s rate flexibility. He said the larger firms were becoming more adept at managing the cost of litigation and providing alternative fee arrangements. That got the firm thinking its platform wasn’t as sustainable and Robertson Freilich dissolved, with its partners and associates scattering to a number of firms.
Regardless of whether they are recent laterals or longtime partners, environmental attorneys are gearing up for a busy 2010.
Bruno said government enforcement, particularly at the federal level, is going to pick up. He said he anticipates increased enforcement under the Clean Air Act because of concerns over climate change as well as increased enforcement under the Resource Conservation and Recovery Act. Bruno said there will also be a big push with all things water-related.
Manko Gold Katcher & Fox managing partner Robert D. Fox said transactional work was “very, very down” last year, but there were some emerging areas of environmental law that more than made up for it — areas he expects to continue to remain hot into this year.
Outside of the traditional compliance counseling and environmental litigation it has always done, Fox pointed to four areas the firm has seen emerge as big players in environmental law, the first being work stemming from mining the Marcellus Shale.
The lawyers typically represent companies involved in producing and mining the natural gas of the Shale, 65 percent of which is in Pennsylvania. The practice can produce regulatory, transactional and litigation work, Fox said.
“This is a long-term play for Pennsylvania as a business matter,” Fox said, adding that means continued legal work to come.
Climate change and all that comes with it has been keeping the firm busy as well. Fox said the firm is advising clients on U.S. Securities and Exchange Commission disclosure requirements, greenhouse gas emission compliance and general counseling.
Sustainability turned out to be a surprise boon in legal work. Fox said that while he understood the pressures to implement sustainability initiatives, two years ago he would have asked what the legal role was there.
He soon realized there is a large legal component to the initiatives and the firm created a practice group to service those needs. It helps clients create programs and understand public disclosure requirements associated with green building. They meet on a quarterly basis with clients from a cross-section of industries to discuss green issues and teamed up last year with Harvard Law School’s Environmental Law and Public Policy Clinic to write a white paper on the legal risks associated with green building.
“That part of our practice is really taking off,” Fox said.
The final uptick is a general increase in both federal and state enforcement actions. While Fox said that has been flat for a number of years, he said it’s looking like it will pick up across all the government’s environmental programs.
Larry D. Silver, of boutique Langsam Stevens & Silver, focuses his practice on federal environmental law and is expecting a busy year.
The U.S. Supreme Court’s decision last year in Burlington Northern and Santa Fe Railway Co. v. United States could spawn a lot of litigation over Superfund sites, he said.
As part of the case, the Court looked at how much proof a single potentially responsible party, or PRP, must present under the Superfund law, CERCLA, before a court will find its liability divisible and refuse to apply the general rule of joint and several liability. The court said PRPs will have to show less proof, potentially opening the door to more litigation.
The U.S. Environmental Protection Agency will also be beefing up its enforcement efforts, Silver said. The agency has suggested it would be quicker to order parties to do cleanups if negotiations don’t progress well. The EPA has also issued new standards for the cleanup of dioxins. The new rule, which is currently open for public comment, would trigger a cleanup when dioxins reach a level of 950 parts per trillion on commercial/industrial sites, compared to the 5,000-20,000 ppt it had been.
Silver also pointed to legal issues that could arise from General Motors’ bankruptcy and the abandonment or change of ownership of several of its sites.
The Chesapeake Bay Watershed Initiative is another focus for the EPA, he said. Increased regulation will be geared toward the area, whose main feeder is the Susquehanna River, he said.
Silver’s partner, Mark A. Stevens, handles a lot of state environmental cases. He said most environmental lawyers in this area have a two-state practice focusing on Pennsylvania and New Jersey and the two states are quite different when it comes to environmental law, with New Jersey being much more litigious.
Having a new governor in New Jersey could have an impact on environmental law, Stevens said. The biggest area of change in the state is the adoption of the Site Remediation Reform Act last year, which gives some of the state Department of Environmental Protection’s duties to new, private licensed site remediation professionals. Stevens said these licensed professionals will “stand in the shoes of the government,” though their decisions can be appealed to the government. He said the big concern is that these professionals get it wrong and a significant cleanup is required that delays transactions.