Mediating Environmental Property Matters

Context: A Typical Environmental Property Case
Environmental property cases typically arise from soil, groundwater, air, or watercourse contamination, or a combination of these. Often the litigants themselves might care little about the contamination, but an administrative body has ordered a litigant to clean up the contamination. Often the person or entity ordered to clean up the site is not the person or entity that caused the contamination and might not have the financial resources to do the cleanup. Yet the regulatory entity might be threatening to impose thousands of dollars of daily penalties for noncompliance with various orders.

Often not just one but several regulatory entities are involved. For example, a regulatory entity with responsibility for ensuring water quality in the process of inspecting storm drains might notice that erosion has occurred, exposing what appears to be trash. Investigation might reveal that unbeknownst to the current owner, the property was once a dumpsite or that grading nearby moved trash to its current location. In such circumstances, the water-quality regulatory entity might order the site owner to investigate whether the trash is affecting water quality. The water-quality regulatory entity might itself notify other regulatory entities, such as agencies responsible for waste management or cities responsible for ensuring that federal Clean Water Act storm-water-quality objectives are met. Because a stream is involved, the initial regulatory entity might also report the contamination to an agency having responsibility for flora and fauna, such as a department of fish and game, or to a regulatory entity having responsibility for navigable streams and their tributaries, such as the Army Corps of Engineers. Even if the initial regulatory entity does not make such reports to other regulatory entities, the site owner might have an independent duty to make such reports. Environmental matters thus can have a number of regulatory entities involved, apart from the litigants. And the regulatory entities might each have the power to order persons to perform certain investigative and cleanup duties, each with onerous penalties.

Investigative and reporting obligations can be lengthy and expensive. In a situation where groundwater contamination is suspected, for example, typically a study will need to be done to characterize the impacted aquifers, the quality of the upgradient water to establish a background level, the nature and extent of the contamination (constituents of potential concern and vertical and horizontal extent thereof), and the downgradient water quality. But before the study is performed, qualified experts must propose the investigative plan and get it approved. This can be a months-long iterative process, compounded by involvement of multiple regulatory entities and multiple litigants. Often an important consideration for the litigants is to cooperate so as to avoid creating the perception that the problem is more severe than the agencies initially believed. Because liability under most environmental laws is joint and several, pointing fingers at others tends to increase liability against oneself.

Once the investigative plan is prepared, a remedial plan needs to be prepared and approved before cleanup can be performed. Often there is significant debate about what cleanup level needs to be achieved—about “how clean is clean?” This remedial-plan process also is often a months-long process. Once the remedial plan is designed, approved, and the remedial work is performed, typically the regulatory entity demands a report confirming that the intended cleanup levels have been achieved. In the case of groundwater, this often requires four consecutive quarters or more of good findings. If the findings are not good enough, the cycle might begin anew, with the regulators requiring additional investigation, additional remedial planning, and additional confirmation reporting. In some cases, such as landfills, there could be a specific regulatory reporting obligation for the next 30 years—or more.

Despite what can be a complicated critical path to success, an effective mediator can help guide the parties to a cost-effective resolution by helping the parties build on common interests and work cooperatively to avoid exacerbating an already expensive problem. Environmental lawyers likewise can help steer the process to a cost-effective end.

Critical Players and Critical Path to Success
Because environmental property cases often involve not only the litigants but also a layer of regulators, often the regulators’ decisions or the required regulatory path are of primary importance. Often litigants and even regulators do not or cannot predict the decision tree of possible regulatory paths. Regulatory outcomes frequently will impact damages or other relief that will be sought in the lawsuit.

But regulators are often susceptible to persuasion, and environmental litigants can and should work to persuade regulators early and often to adopt cost-effective solutions, whether informally or formally as part of a due-process hearing. Parties in a case, for example, might be successful in persuading the regulator that a certain contaminant need not be cleaned up to a standard of one part per billion, but instead needs only to be cleaned up to one part per million. Or a party might be able to demonstrate that the contaminant is degrading naturally and, over time, will resolve itself. In either of these circumstances, there could be a dramatic cost savings that accrues to the benefit of all parties.

Persuading regulators is an issue of timing, method, money, and often of personalities. The parties need to be equipped with scientific evidence that can persuade the regulators. To get the evidence, knowledgeable experts armed with evidence gathered via proper and properly documented efforts should be gathered and presented. The lawyers need to be able to understand and to articulate how those findings fit within the regulatory scheme. This can be an expensive and long process.

Parties working together in harmony often are more persuasive with regulators than those who are at cross-purposes. Regulatory staff generally do not want to arbitrate, mediate, or adjudicate disputes between parties—they simply want to determine whether evidence establishes that somebody has cleaned up an environmental problem. Generally, parties pointing fingers at each other in the presence of regulators can create additional regulatory problems by giving rise to additional concerns that a regulator might not have previously addressed, waking the sleeping dog, potentially increasing costs and thus making resolution more difficult. Admittedly, at other times, regulators need to know that there are genuine scientific issues of disagreement or significant areas of disagreement about the regulatory scheme, such as whether a particular guidance document or order applies to one party or another.

In many cases, either in mediation or outside that setting, the litigants might formalize their united approach, taking great strides toward litigation resolution and cost savings in the process. The parties might, for example, be able to create a shared-expert agreement, agreeing on a joint expert (or joint team of experts) to perform a joint site investigation, on joint reporting, and on a joint technical expert for meeting with regulators. Just in case gaps are not bridged and to otherwise be prepared should dispute resolution fail, the parties might retain their own consultants who can review and comment on the joint expert’s data and analysis, affecting the joint expert’s approach, while being prepared for litigation, without each party having their own experts fully involved.

Parties generally fare better by working out key differences together in advance of regulatory meetings, thus appearing more in harmony about how regulatory objectives can and should be met. In all events, mediators need to understand either through experience or through the lawyers’ briefing the environmental regulatory setting, including the critical players and decision makers, and the likely critical regulatory path to success. Lawyers can and arguably should begin mediation early, with the initial objective being an effort to structure a united approach to persuading regulators.

Timing Issues
Litigation, even lengthy litigation, often travels more quickly than the environmental-cleanup regulatory process. If the matter is on track to proceed to trial in advance of the environmental cleanup, there often is a significant difference of opinion in the ultimate cost of cleanup and as to damages available in the lawsuit. The plaintiffs’ experts might deal with the uncertainty by padding numbers either via scope of work or unit costs. By contrast, the defense experts might understate the requirements. Thus, the plaintiffs in the face of uncertainty might suggest that regulators will require soil and groundwater investigation requiring 10 boreholes and 10 monitoring wells with 30 years of monitoring, whereas the defendants might suggest only three boreholes and three monitoring wells with one year of monitoring. The defense will assert that damages are speculative, whereas the plaintiffs will assert that the defense’s Band-Aid approach would never pass regulatory muster.

The long regulatory critical path as compared to the short litigation path often is a settlement impediment because of the uncertainty. Consequently, methods to reduce the impact of the timing issue can help achieve resolution and decrease costs. Environmental cases often are not judges’ favorite cases, and courts often can be persuaded to put such cases on the back burner or on the slow track to trial. The parties might also be agreeable to a tolling or a stand-still agreement so that the regulatory process can proceed and decrease the uncertainty, narrowing the divide between the parties while putting off litigation. The parties can then resolve the case more easily in the mediation context or through other settlement discussions. If a tolling or stand-still agreement is a possibility, the parties might address the issue of whether one or more significant issues need to be addressed by the court before the agreement goes into effect, to reduce the uncertainty of the outcome of an important motion.

Legal Theories and Nuances
As in any case, understanding the key liability, causation, damages, and apportionment theories is key to resolving the dispute. Environmental lawyers ought to take care to explain or brief their mediator on the significance of such technical environmental-law issues. The parties themselves should be familiarized with the significance of such issues as well.

For example, depending on the theories pleaded, a party might be limited to injunctive relief. Some other theories might award a party attorney fees. Some environmental legal theories might allow response costs, but the awardable response costs might bear little resemblance to typical consequential damages. As for response costs, there could be a number of hurdles such as compliance with the National Contingency Plan, which is an expensive process often not taken by litigants, even those claiming recovery under the Comphensive Environmental Response, Compensation, and Liability Act (CERCLA). Similarly, attorney fees might have a nuance, such as under CERCLA, in which fees are awardable for the effort to identify responsible parties but are not generally available otherwise.

Ensuring that all players know the field of play and whether a party can or cannot obtain certain relief is, of course, crucial to successful mediation. Environmental lawyers should take care to explain the key legal theories to mediators, to clients, and to opposing parties.

Scientific and Technical Issues
Also as in other cases, understanding the critical factual issues is important to helping the parties resolve their dispute. In environmental cases, critical facts often are very technical or scientific in nature, involving issues that lawyers, mediators, and decision-making clients might not fully understand. Often the key issues are set forth in detail in regulatory reports, which might not be understandable to the average person. But experts (joint experts or individual-party consultants) can assist parties, lawyers, and mediators in understanding the key issues of consequence.

Scientific experts generally used the scientific method to come up with their conclusions and ought to be able to describe the solidity of their positions in detail. But they too are subject to persuasion. Often a meeting of experts, as can occur in the mediation setting, will help one side persuade the other in a confidential, candid discussion. Or perhaps both sides will persuade the other on one issue or another, narrowing the gap of disagreement. In the event of a joint expert along with individual-party consultants, the mediation context likewise can be used for candid confidential discussions in which the experts can work toward convincing one another.

Because environmental issues often are very complicated or difficult for humans to understand, good data, good interpretation, and especially good explanatory graphics such as demonstrative exhibits are very helpful. Often these exhibits, or the bases for such exhibits, have been contained in reports given to regulators, so little extra effort or cost is involved in preparing them for mediation.

For example, one expert might have suggested to his or her side’s attorney and client the need for a Visqueen curtain wall in conjunction with several groundwater extraction wells to inhibit the migration of contamination. The work might require significant trenching and backfilling, and maybe some construction demolition and later rebuilding—a lot of construction work at great expense. On the other hand, another party or consultant might assert that because of the characteristics of clay layers within the soil, the Visqueen curtain wall will be unnecessary, saving all the parties costs by decreasing overall damages.

Having a mediation session where the experts can talk to one another can be very helpful. Depending on the attorneys, parties, and objectives, the experts might be able to meet in the confidential mediation context either alone or with the mediator to have a completely open discussion of issues of consequence, without grandstanding for attorneys or for clients. Such a process could help narrow the gap of scientific disagreement. Or the experts might be able to crystallize an issue of consequence that a regulator will need to address before the remedy (scope and cost to repair it) can be determined.

In any event, understanding the key scientific and technical issues of consequence—the key facts in controversy—is very important to the successful mediation. Lawyers should arm their mediator with such key information, and should be sure that clients and opposing parties are able to understand it as well.

Sources of Money
Understanding possible sources of money or other relief is one of the keys to a successful environmental mediation. As in other lawsuits, insurance is a possible source of money. Today’s insurance policies often have exclusions, exceptions, conditions, or limitations that might apply and preclude or limit available insurance coverage. But unlike many other kinds of lawsuits, in the environmental context, liability can be founded on decades-old events without statutes of limitation barring relief, potentially triggering decades-old insurance policies that do not have relatively recent pollution exclusions, conditions, or limitations. And a defendant’s cross-complaint against the plaintiff might trigger additional coverage.

Often an identification of the parties’ available insurance, particularly where governmental entities such as cities and counties are involved, will lead to the identification of insurance carriers that insure more than one party in the case, leading the insurance carrier to the conclusion that resolving the case might be more cost-effective than funding the parties’ ongoing debate. This is quite common in the wake of many insurance-carrier mergers and acquisitions over the past few decades.

Effective environmental mediation requires an early identification of all available insurance to help fund lawsuit resolution, including insurance policies that might be decades old, together with the early and ongoing involvement of insurance carrier representatives and/or coverage counsel. Of course, additional parties might be added not only because they are potentially responsible parties but also because they bring more insurance coverage to the table, increasing the size of the settlement pie. Key coverage issues should be identified so that the case is postured accordingly.

Another important source of money that environmental litigants often miss is grant money or money that might exist within special governmental funds. This is a key issue in part because litigants are required to mitigate damages—and the failure to obtain available grant money arguably is a failure to mitigate damages.

Both states and the federal government often have grant programs or special funds that a litigant can use to help fund the case’s resolution. Sometimes grants are hundreds of thousands of dollars—too big to be ignored, and often capable of bridging or at least narrowing settlement gaps. Grant money is free money, and environmental lawyers ought to seek it out. Often the regulatory entities involved will provide guidance in creating a grant request, because they have the money in the budget and need to give it away. Finding the grants can often be difficult; it is a process of working with available regulatory entities and their websites, as well as keeping abreast of current legislation. Obtaining grants often presents another timing issue—there might be only certain funding periods with certain deadlines, and funding might be available only to the first applicants. Cooperation between the parties is important. Sometimes only the property owner can apply for or qualify for the grant or fund, but another party might have key information necessary to the application. Examples of grants and special funds are many: stream-bed-restoration grants, park-creation grants, rubber-tire-recycling grants (used for artificial-turf field construction), underground-storage-tank grants or funds, landfill-reconstruction grants, storm-water-related grants, and other clean-water grants. Sometimes non-governmental organizations have grant money available as well, and they should not be ignored as a helpful source.

Litigants should be united in the purpose of finding all available grants—the plaintiff to avoid the failure-to-mitigate claim and a possible unfunded orphan share of sorts, and the defendants to decrease the overall damages. Pursuing grant money should occur early in the life of a case. Mediators, litigants, clients, and opposing parties should be aware that obtaining grant money is often a possibility.

Creating a Process
Because of their complexities and often large size, environmental cases lend themselves to the early-resolution-of-disputes process, potentially involving a mediator. The first objective ought to be decreasing the size of the pie that needs to be swallowed—decreasing overall damages, costs, and fees. Litigants should consider meeting early on to consider both common interests and a possible structure for resolution—presenting a united front to regulators—in an effort to decrease overall damages as much as possible. A mediator can help by working with a joint expert or with individual experts to have them develop an approach to timely meeting regulators’ demands. The mediator can help structure an expert-sharing, quasi-joint-defense agreement that will help decrease overall costs during the regulatory life of the case. And grant-fund availability should be investigated and pursued early because if grants are available, they will decrease overall damages.

The parties should exchange information, and discovery costs should be minimized to the extent possible. The parties might, for example, agree to share non-privileged discoverable documents and information per Rule 26 of the Federal Rules of Civil Procedure, which encourages disclosure of information—even if the matter is not in federal court. Clients likely would prefer that their resources be spent on remediating the site or on resolving the litigation than on discovery debates.

The next step—dividing the pie among the litigants and the carriers—is more difficult. Of course, dividing the settlement pie is easier the smaller the damages pie to be divided, and the more parties and insurers there are to take a piece.

With the parties’ consent, the mediator can begin early communications with insurance carriers and their coverage counsel, in an attempt to build a coalition of entities united in purpose. All parties want their piece of damages to be as small as possible. Some carriers might help get other carriers involved, especially where some might be aware of inconsistent positions taken by carriers in other similar matters. All carriers want to keep overall costs down.

The mediator should structure one or more mediation sessions early in the life of the case to begin the process of resolution, armed with the knowledge provided by able counsel. Mediation hearings should be keyed into the significant regulatory events—for example, once the remedial work plan has been approved, how much will it cost, is there grant money or insurance money available, who pays what shares, can the parties reach agreement, and what happens if things go wrong? Settlement agreements tend to be complicated, and crafting them requires quite a bit of forethought. Often the parties will remain joined at the hip for years, resulting in a complicated, ongoing agreement, not a simple release-and-walk-away settlement.

But early preparation, early cooperation and information sharing, and early mediation make early resolution of a complicated environmental case a distinct possibility—and often each regulatory event will decrease the uncertainty that the parties face, narrowing the settlement gap even further. Effective mediators empowered by able counsel can help parties achieve cost-effective dispute resolution.

Keywords: litigation, environmental litigation, regulation, liability, causation, damages, apportionment, cooperation

_{Doug Simpson is managing shareholder of The Simpson Law Firm in San Diego, California.}

^{Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}