January 01, 2020

Literary Resources

Reviewed by Madeline June Kass

BOOKS

Environmental Litigation: Law and Strategy

Karen A. Brown and Andreas M. Hogan, eds.

ABA Section of Environment, Energy, and Resources, Second Edition, 2019

This second edition of the ABA Section of Environment, Energy, and Resources publication Environmental Litigation: Law and Strategy is a detailed compendium written specifically for environmental litigators. This book addresses the special nature of environmental litigation by focusing on “how environmental issues are addressed and resolved though litigation.” Editors Karen A. Brown and Andreas M. Hogan start out explaining why––despite certain inherent similarities to litigation generally––environmental litigation presents a “special” case. First, “litigation challenges presented by an environmental case frequently are idiosyncratic if not unique.” Second, “although the courts have been a forum for social change many times in our nation’s history, at this particular time no other litigation discipline presents the same ‘big social questions’ as environmental litigation.” The editors illustrate this point by noting the daily barrage of news coverage on global climate change and the increasing frequency of climate litigation playing out in the courts. Third, “the scope of what qualifies as ‘environmental litigation’ is huge, as evidenced by “dozens of federal statutes, scores of state statutes, hundreds of common law rules, and thousands of pages of regulations to be accounted for.” Addressing this special nature of environmental litigation, the book covers a wide range of topics from the perspectives of over 20 private practitioners, current and former government attorneys, and academic authors.

Structurally, Environmental Litigation includes eight chapters each with practical guidance on key issues in environmental litigation. The first chapter provides a “high-level, practitioner-oriented overview” of judicial challenges to federal agency action. The chapter examines the close relationship between environmental agency regulatory action and environmental litigation by overviewing the types of agency actions commonly challenged in court, identifying threshold issues for judicial challenges, summarizing typical claims raised in regulatory challenges, and discussing remedies available to successful challengers.

Chapters 2 and 3 cover criminal and civil environmental enforcement. The criminal enforcement chapter begins by identifying key distinctions between environmental criminal prosecutions and ordinary criminal cases and then moves through a range of topics, from the initial development of environmental criminal law, case elements, and mens rea to pre-trial, trial, and sentencing considerations. The civil enforcement chapter discusses the broad and frequently used civil enforcement authorities of the major environmental statutes, the often resulting complex litigation, and how such cases can best be defended and resolved.

Chapter 4 looks at insurance recovery for environmental liabilities. The chapter “provides an overview of several coverage issues arising in connection with each type of coverage that can potentially respond to environmental claims and related costs.” Topics covered include notice, general liability policies, and specialty pollution policies.

Chapter 7 examines environmental citizen suits. Given the ubiquitous nature of citizen suit provisions in the major environmental statutes, such actions often play and “enforce important parts of the federal environmental regulatory schemes governing air quality, water quality, solid and hazardous waste disposal, contaminated-site cleanup, drinking water, community right to know, toxic substances, and the protection of endangered species.” This chapter examines citizen suits from start to finish, including conditions precedent to suit, the ever-confounding standing requirements, all the way to defenses, remedies, and settlements.

Additionally, three chapters focus on uniquely complex areas of environmental litigation, one chapter each on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation (cost recovery, contribution, and natural resources damages), toxic torts, and pesticide litigation.

Although the editors conceived Environmental Litigation as a guide for environmental litigators, they deliver “an open invitation” to––and there is plenty worth taking a peek at for––“lawyers who find themselves litigation environmental matters every now and again or even those lawyers who have a need to evaluate how citizen suits or global warming litigation might affect a client.”

Kiss, Bow, or Shake Hands: Courtrooms to Corporate Counsels

Terri Morrison

ABA Section of International Law, 2018

Kiss, Bow, or Shake Hands: Courtrooms to Corporate Counsels is a practical resource for environmental lawyers, academics, and students working or studying abroad. It’s a concise, throw-in-your-briefcase or stuff-in-your-back pocket guide that serves up useful tips and insights on cultural norms, customs, and acceptable social behavior in many countries. Author Terri Morison notes that “[t]imes change. Cultures, however, are remarkedly static.” Hence, she asserts that “[d]iscerning how cultures perceive and express truth differently around the world is one reason you need this book.” Point taken!

The first part of Kiss, Bow, or Shake Hands covers intercultural topics, including several chapters on first impressions. For example, at that first critical introduction, just how close is too close to stand, or too far? Morrison explains that while we are all “territorial creatures” with preferences regarding personal space, differences in preferred proximity can vary significantly across cultures (Brazilians prefer greetings at 1 to 1.5 feet, Americans prefer 2 to 2.5 feet, while Chinese prefer at least 2.5 to 3 feet of distance). Accordingly, she explains:

To many US citizens, Latin Americans seem to stand closer than normal. And in the Middle East, male friends may hold hands when walking together and speak with their faces less than a foot apart. In environments like Cairo, Rio, or Buenos Aires, trust and care are demonstrated and reinforced by close proximity. Backing away from a Brazilian may confuse and disturb them as much as touching a stranger in an elevator would alarm a German.

Next, do you kiss, bow, or shake hands? If so, how should you do each? The book offers advice on all three. And, as a “worst move” to avoid, Morrison warns “[d]o not shake hands with a bone-crushing grip, keep going too long, or yank your colleague’s hand toward you in an effort to act alpha.” Luckily, the insights in this section can help you avoid unintended miscommunications, minimize inadvertent slights, and reduce social blunders during your first meeting with new clients and colleagues.

The second part of Kiss, Bow, or Shake Hands contains “Country Briefs.” The briefs overview “intercultural and legal topics in 12 countries,” including “greetings, modus operandi optimus, legal systems, governments and their branches, communications styles, negotiating, decision-making, modus operandi malus,” and legal anecdotes. Each country brief, for example, includes eye contact norms. It’s certainly helpful to know that in France and Germany, eye contact tends to be prolonged and relatively constant, whereas in Japan and China eye contact tends toward more intermittent or sporadic. In another chapter, an anecdote from the Mexico brief impresses the importance and subtleties of even a single word in communications,

I thought [the word ahorita] meant “In a minute!” Or “I’ll get to you shortly.” But actually, it means “I want to preserve this relationship, so I won’t insult you by flat out telling you I can’t do that.” And if they elongate the word, like ahoriiiita, really, fuggetaboutit. To my Mexican associates, saying “ahoriiita” was clearly a polite way of saying “no.” Everyone understood except me.

Readers visiting Russia may benefit as well from the reminder that “drinking remains a large part of Russian culture.” The Russia brief informs us that table settings in this country typically include “a shot glass for vodka, a water glass, and a wine glass” and “once a bottle of vodka is opened, drinking continues until the bottle is empty.”

The final part of Kiss, Bow, or Shake Hands compiles “Country Tips,” single-page hint lists for practicing law in 44 additional countries. Having just returned from living and working in Brugge, I checked out the Belgium list first. The tips aligned well with my actual experience, such as “[f]or some Belgians, north and south are almost separate, rival countries” and the chapter title itself, “Belgium: Common Sense and Compromise.” The variation and diversity of norms revealed in this part of Kiss, Bow, or Shake Hands highlight potential traps for international lawyers. For business in Israel, Morrison notes “[m]any Israelis have a very direct, emotional negotiating style. Confrontation does not equate to conflict to them.” But if you are in Thailand, she suggests “[b]e flexible and patient, and never lose control of your emotions. Do not be overly assertive or confrontational; it is extremely impolite.”

Here are just a few more examples to contemplate. In Switzerland, “[p]unctuality is absolutely required,” while in Brazil, “[d]o not take umbrage if your Brazilian associates are late.” In Sweden, “[t]ruth is determined by facts,” while in Bolivia, “[f]acts are acceptable as long as they do not contradict a Belizean’s person feelings and ideology.” And, while visiting Romania, “[s]hake hands often,” but in the United Arab Emirates, “[d]o not shake hands with veiled Emirati women.”

Wherever you are headed, Kiss, Bow, or Shake Hands offers practical advice on the culture, customs, and norms of the people you will encounter.

REPORTS

Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services

United Nations Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), May 2019

The Global Assessment Report on Biodiversity and Ecosystem Services (Global Assessment) was issued in May 2019 as a summary for policy makers (Global Assessment Summary) and a set of six draft chapters. Reporting on the Global Assessment, the New York Times ran the dire headline “Humans Are Speeding Extinction and Altering the Natural World at an ‘Unprecedented’ Pace.” Brad Plumer, N.Y. Times, May 6, 2019. Equally ominous, the Washington Post began its article: “One million plant and animal species are on the verge of extinction, with alarming implications for human survival, according to a United Nations report.” Darryl Fears, One Million Species Face Extinction, U.N. Report Says. And Humans Will Suffer as a Result, Wash. Post, May 6, 2019. Needless to say, much of the report’s findings were not good news.

The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) prepared the Global Assessment with the assistance of close to 150 scientists and 250 collaborating experts from 50 countries. Working over a three-year period, the authors reviewed as many as 15,000 scientific, indigenous, and government sources. Described as “one of the most comprehensive assessments of the planet’s health ever undertaken,” the Global Assessment covers changes over the past half century for all land-based ecosystems (except Antarctica). Bill Chappell & Nathan Rott, 1 Million Animal and Plant Species are at Risk of Extinction, U.N. Report Says, NPR All Things Considered, May 6, 2019. Representative of each of the 132 member nations (including the United States) approved the Summary for Policymakers during the 7th Session of the IPDES Plenary held in May 2019. See United Nations Sustainability Goals, www.un.org/sustainabledevelopment/.

The Global Assessment Summary sets forth four core messages. First, “[n]ature and its vital contributions to people, which together embody biodiversity and ecosystem functions and services, are deteriorating worldwide.” Second, [d]irect and indirect drivers of change have accelerated during the past 50 years.” Third, [g]oals for conserving and sustainably using nature and achieving sustainability cannot be met by current trajectories, and goals for 2030 and beyond may only be achieved through transformative changes across economic, social, political and technological factors.” Regarding prior conservation efforts, the report recognizes that international policies and actions have brought about positive outcomes, but finds that such interventions have not been sufficient to stem the drivers of nature deterioration. The fourth and final core message of the report is that “[n]ature can be conserved, restored and used sustainably while simultaneously meeting other global societal goals through urgent and concerted efforts fostering transformative change.” The Global Assessment Summary and associated chapters flesh out each of these core messages with supporting data, statistics, graphs, and tables documenting loss of biodiversity and deteriorating natural ecosystems, and propose measures, interventions, and levers to achieve the transformative change necessary to conserve nature.

Emphasizing the final message––perhaps the Global Assessment’s only positive news––IPBES cochair Sir Robert Watson stated “[t]he report tells us that it is not too late to make a difference, but only if we start now at every level from local to global.” See United Nations Sustainability Goal. For those looking for measures to help save nature, many can be found in this report.

Entity:
Topic:

Reviewed by Madeline June Kass

Professor Kass is a Visiting Distinguished Scholar in Residence at the Seattle University School of Law in Seattle, Washington; Professor Emeritus at Thomas Jefferson School of Law in San Diego, California; and a member of the editorial board of Natural Resources & Environment. She may be reached at mkass@tjsl.edu.