PHOTOS COURTESY OF DYKEMA?GOSSETT
by Cynthia Price
Legal News
At the end of November, Dykema invited its colleagues to share in its expertise on the latest environmental litigation trends.
Dykema is a national law firm with approximately 400 award-winning attorneys — seven of which are in its Grand Rapids office. The other offices are scattered throughout Michigan and Texas, with one in Chicago, Washington D.C., Los Angeles, and Minneapolis, 13 in all.
John Ferroli, who works out of both the Grand Rapids and Los Angeles offices, and Thomas B. Alleman of Dallas were the presenters who gave their time to informing any member of the legal community who was interested about the current status and “hot” issues in environmental litigation.
Ferroli, who spoke first on statute-based as well as tort-based litigation, says that this is the first time for such a national presentation, but he, Alleman, and other Dykema attorneys are no strangers to similar educational efforts, including annual sessions at an emerging claims managers conference in Orland. “This is the first time that I’ve packaged it all into something as ambitious as this,” he says.
Ferroli’s expertise is drawn directly from his own practice. A litigator, he focuses on federal (including under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, generally referred to as Superfund) and state-equivalent environmental cost recovery and contributions claims as well as other statutory and common-law environmental claims and defending agency enforcement proceedings. He frequently serves as administrator and common counsel for groups of responsible parties at contaminated sites. As he points out, he may represent a client who is both a defendant, and later a plaintiff as contribution costs are sought.
Ferroli went to University of Notre Dame for both his undergraduate (magna cum laude) and Juris Doctor degrees. He is regularly recognized by The Best Lawyers in America® for Environmental Law and Environmental Litigation and in 2015 was named “Lawyer of the Year” in Grand Rapids for Environmental Litigation. He is heavily involved with the American, State of Michigan, and Grand Rapids Bar Associations.
In addition to discussion of CERCLA, Ferroli covered suits under RCRA (Resource Conservation and Recovery Act, which concerns hazardous and non-hazardous solid waste disposal), the Clean Water Act and the Clean Air Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and others.
One of the factors these acts have in common is that they allow for citizen lawsuits to be brought against the Environmental Protection Agency (EPA) or against “any person” who violates a permit, emission/effluent standard, rule or administrative order. He cited Concerned Pastors for Social Action v Khouri in Flint as an example.
Ferroli noted that these suits, often brought by environmental non-profits on behalf of individuals, cannot result in the award of damages, but are intended to (and have been successful in) stopping pollution at specific sites, holding government’s feet to the fire and forcing studies to characterize the pollution, among other results. They are becoming increasingly common. and Ferroli said that attorneys for such non-profits are adept at using the laws creatively to help clients challenge environmental degradation.
“If enforcement declines as expected under the Trump administration, the creativity used is likely to expand,” he said.
Ferroli cautioned that there are subtle differences in the requirements for different acts. RCRA, which is a statute on which he spends a lot of this time, “allows action for imminent/substantial endangerment,” which has led to much litigation. To bring such a suit requires “concrete and particularized injury in fact; alleged injury traceable to defendant's actions; likelihood that prevailing will afford some redress for the injury” according to Friends of the Earth v Laidlaw.
Various cases have tried to establish more concrete standards for “imminent” and “substantial” as well as “may” and “endanger,” and even “disposal” has been controversial. Ferroli noted that the decision in Clapper v. Amnesty International USA required that claims of possible future injury are not sufficient; the injury must be “certainly impending.”
“The Clapper decision is only going to only lead to further issues about how impending is defined,” said Ferroli.
An important aspect of such laws is the ability to recover cleanup costs from responsible parties at a contamination site. Because such parties may be held liable jointly and severally, a company may sue to have the court determine what portion of the harm is fairly attributable to other parties, based on such factors as volume, relative toxicity and others.
Ferroli spent a lot of time on this “divisibility” defense, noting that the Burlington Northern v. US case is informative because it allowed such a defense. The courts must figure out the extent to which separate parties caused separate harms, which, as Ferroli pointed out, is a very challenging, expert-intensive process.
He noted that many courts — including the one in the 2015 US v NCR Corp., which reversed its original divisibility finding — have indicated that issues of divisibility might be best handled in the equitable allocation phase which follows.
Thomas Alleman then spoke on state cases, including some breaking trends in environmental litigation.
The Director of Dykema’s Insurance Industry Group and a “really tenacious” (Chambers USA) trial and appellate lawyer, Alleman covers the broad range of insurance coverage issues. He has won both national and Texas accolades, as well as awards during his attendance at Washington University in St. Louis School of Law. He and previously attended Williams College for his B.A. and Washington University in St. Louis School of Law, for his J.D. He, too, is active in the Dallas Bar Association and various community activities.
The first topic Alleman emphasized was “talc” – lawsuits over harm incurred through the use of talcum powder. This household staple has been linked, though at this time inconclusively, to ovarian cancer, and juries have awarded startlingly high monetary damages in response to suits.
“The... cases also reenergize questions of general and specific causation,” the presentation notes.
General causation asks, “Is the substance capable of causing the condition or damage alleged?” Specific causation asks,“Has the individual plaintiff received a sufficient dose of the material in question to cause the disease?” Relative risk analyses center on, “What is the risk of a particular injury or disease among people exposed to a substance compared to the same risk of people not exposed?”
Alleman noted that determination of causation, especially because of its link to expert testimony and the different ways in which states govern that testimony, is an old subject but likely to remain central to toxic tort lawsuits.
In keeping with the previous acknowledgment that environmental NGOs find ingenious legal avenues in order to achieve their environmental ends, Alleman also talked about climate change lawsuits cropping up. For example, some coastal cities in California brought a lawsuit based on their increased costs for flood control. Several actions have been undertaken against Exxon Mobil based on revelation that the company knew about climate change science and hid the facts from the public.
Alleman wrapped up with a detailed discussion about nuisance law.
Ferroli and Alleman encourage questions; contact information can be found at www.dykema.com.
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