So what is “keeping in-house counsel up at night” and what do defense attorneys see in their “crystal balls”? As you can imagine, the concerns are many, including the current state and federal regulatory focus on new exposure pathways, trends in litigation, and long-term environmental liability to name a few. These issues and others were discussed in New Orleans at the DRI Toxic Tort and Environmental Law Seminar. Two of our associates attended this conference and have shared a few observations below.

Vapor intrusion is a game changer

An attorney speaking about vapor intrusion paused during his presentation and said, “This is a game changer.” We agree. And if we heard it once in talking with others at the conference, we heard it a dozen times – vapor is a really big deal. The 2013 guidance documents by EPA notwithstanding, we are equally concerned with developments in EPA region 9 and 10 (see our earlier blog entry). We also co-wrote an article with legal counsel on vapor intrusion in the fall of 2013 that appeared in the Michigan Defense Trial Counsel. See Volume 30, No. 2 November 2013 page 17, “Vapor Intrusion — A New and Challenging Issue”. Will we see more sites reopened? How will VI impact the transaction market? Will Brownfield sites lose their appeal or require greater incentives? We’ll see.

Citizen suits

Were Hollywood productions such as Erin Brockovich and A Civil Action part of the impetus to popularized environmental class action law suits? Regardless of what started the trend, citizen suits are a concern for anyone in the regulated community. In the conference proceedings, Patrick Shea (Waste Connections) and Richard Davis (Beveridge and Diamond) shared the trends from 1978, when a total of 12 citizen actions were filed, to 2006 where we now have a Notice of Intent being filed every day.

We personally witnessed some of these citizen suits in opposition to Concentrated Animal Feeding Operations (CAFO). In the case of the CAFOs, the citizen’s complaints involved potential impact to groundwater from manure storage lagoons and overuse of aquifers from pumping water. The facts were on our client’s side and fortunately, we were able to help communicate these facts to avert shutting down projects; however, anytime the public is involved, environmental matters can be particularly challenging.

With the citizen suits, counsel has a significant challenge because science and data can be strongly in your favor, but it’s rarely about facts; rather, it’s about emotions. As this is ultimately a communication issue, I am reminded of risk communication expert, Peter Sandman, who provides the following definition of Risk: Risk = Hazard + Outrage. The implication being the presentation of technical facts to an audience will not necessarily help your cause. Sandman and others point to the need to understand the audience’s feelings – and that you address these “feelings” and preconceived understandings in your message.

With this continued rise in citizen suits, there may be a renewed focus (as was discussed in the meeting) on care and consensus communication with the public…which, while may be an expense, it’s far less costly than crisis communication.

We have some very exciting and challenging projects ahead of us in 2014, most of which involve complex soil, groundwater, and vapor issues. As we look forward to helping our existing clients with their challenges, we look forward to an opportunity to work with new clients. For more information about our expert environmental services, contact Jeffrey Bolin, M.S., CHMM at 248-932-0228.