Chapter 22: Environmental Litigation
Environmental litigation does not differ intrinsically from other types of litigation. As this chapter illustrates, environmental litigation can be grounded in statute, contract, or tort. Environmental litigation can be initiated by a governmental entity or a private individual or group, and it can seek injunctive relief or monetary or punitive damages. Nonetheless, environmental law has certain distinguishing features—for example, citizen initiated enforcement of statutory obligations to protect human health and the environment—that environmental practitioners must recognize and understand to represent their clients effectively. This chapter focuses on these distinguishing features.
§ 22.1 Introduction
§ 22.2 Private Citizen Initiated Statutory Litigation
§ 22.2.1 Citizen Suit Litigation
Statutory Provisions
Sixty-Day Notice Requirement
Relief Available Under Citizen Suits
Practical Advice for Citizen Suit Plaintiffs
Practical Advice for Citizen Suit Defendants
§ 22.2.2 Private Cost Recovery and Contribution Actions Under CERCLA
Necessary Elements of Plaintiff’s Cost Recovery Case
Cost Recovery Action Procedures
Contribution Actions
§ 22.2.3 NEPA Litigation
§ 22.3 Government Initiated Litigation
§ 22.3.1 Enforcement Litigation
Practical Defense Strategies
§ 22.3.2 Government Initiated Litigation to Recover Response Costs
§ 22.4 Contract Liability
§ 22.4.1 Representations and Warranties
Types of Damages
Minimum and Maximum Limits on Damages
Duration of Representations and Warranties
Seller’s Knowledge
Liabilities Arising During Seller’s Ownership
Notice Requirement
§ 22.4.2 Indemnification
§ 22.4.3 Shared Liabilities; Release
§ 22.5 Tort Liability
§ 22.5.1 Nuisance
§ 22.5.2 Negligence
§ 22.5.3 Strict Liability
§ 22.5.4 Trespass
§ 22.5.5 Continuing Torts
§ 22.5.6 Latent Defects: Post-Closing Discovery and Environmental Torts
JOHN D. FOGNANI, ESQ.
Fognani & Faught PLLC
John D. Fognani is recognized in The International Who’s Who of Environmental Lawyers (2004-2006); The International Who’s Who of Business Lawyers (2003-2006); Who’s Who in American Law (1994-Present), and The Best Lawyers in America (1993-2006) under two categories: “Environmental Law” and “Natural Resources Law.” Since 1977, Mr. Fognani’s practice has been unusually diverse in areas of natural resources and environmental law, encompassing administrative and regulatory law, judicial and administrative litigation, counseling and compliance and negotiating and documenting complex transactions. He has acquired substantive knowledge of facilities and operations in a wide range of industries, including mining, oil and gas, power generation, construction and manufacturing. Mr. Fognani has extensive industry experience throughout North America and Asia and has been lead counsel in a number of highly visible cases, including Colorado v. Asarco Inc. (natural resource damage action); United States v. Rockwell Int’l (Rocky Flats Plant criminal environmental matter); In Re Redlands (Southern California toxic tort suit); STOP v. Marathon Ashland Pipeline Co. (USACOE/Ohio pipeline permit); United States v. Friedland (officers/directors involved in CERCLA action); Wilson v. Amoco Corp. (RCRA citizen suit); and AMC v. EPA (D.C. Circuit Court challenge to USEPA’s “solid waste” definition). More recently, Mr. Fognani is involved in multilateral, collaborative efforts involving foreign governments and other international participants to establish bilateral arrangements for implementing large-scale mining and energy-related projects that involve working and interfacing in various countries, such as Mongolia, China, Japan, Myanmar, Kazakhstan, and the Philippines, among other Asian nations. Mr. Fognani has written extensively and is a frequent speaker and lecturer on natural resources, international, environmental, and litigation topics.
