Environmental trials encompass a range of claims and issues, from common law to the technical language of the Resource Conservation and Recovery Act (RCRA) to interstate air quality modeling challenges under the Clean Air Act (CAA). Some environmental trials, like those involving nuisance and trespass, are common law claims and are tried to a jury. Others, such as those concerning the RCRA and the CAA, are bench trials. Some are highly technical battles of the experts, while others are based upon core tort principles. Many environmental trials, such as those dealing with emerging contaminants, are a mixture of common law and statutory law. Whatever the form of trial, however, it is critical to have a clear and persuasive theme establishing why you should prevail—and that theme should be expressed loudly and clearly in an in limine motion at the outset of trial.
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