Throughout my career as an attorney, approximately half or more of my time has been spent handling environmental litigation, usually as the lead attorney for my client and for groups of parties numbering from fewer than a dozen to over 100. My caseload has included both state and federal court cases in many jurisdictions. (The remainder of my work has involved negotiations with state and federal agencies and among private parties, as described in the Regulatory Negotiation and Dispute Resolution sections of this site.)
I have been admitted to the bars of Michigan, New York, New Jersey and the District of Columbia. I am admitted to many federal courts, including the United States Supreme Court, the Sixth Circuit Court of Appeals, and District Courts in Michigan, Illinois, Ohio, New York, New Jersey, and Texas. I am also frequently admitted pro hac vice to litigate for my clients in other jurisdictions.
Within Michigan, I have handled litigation in both the eastern and western federal court districts and in numerous of our counties’ circuit courts across the state. (I am also on the list of approved mediators for civil cases in many of these same circuit courts, as described in the Dispute Resolution section of this site.)
I have assisted clients with Superfund matters since CERCLA was first enacted. In the 1980s, I defended clients in federal court on contribution and cost recovery actions, formed de minimis groups to negotiate settlement, achieved settlements allowing cash-outs and cash-in participation in RD/RA groups, dealt with fund claims, and worked on contribution actions and other matters.
Since then, I have handled a wide variety of cases under Superfund. Every new case involves new issues in the continually evolving framework of environmental regulation. My work both on behalf of individual clients and as common counsel for groups of parties has involved negotiating settlements with several U.S. EPA regions, helping draft decrees and participation agreements, and working with consulting firms and groups of parties to perform RI/FSs, construct remedies and transition to O&M.
Throughout the quarter-century development of CERCLA, I have handled litigation on cutting-edge issues, including claims for damages to natural resources, the scrap recycling exemption, lender liability, corporate parent liability, and toll manufacturing and other aspects of arranger liability, including recent applications of the Supreme Court’s decision in Burlington Northern.
I am also familiar with the evolving aspects of state 'mini-superfund' laws, including the voluntary cleanup approaches available in some jurisdictions and BEA protection and due-care obligations in Michigan.
REAL PROPERTY DISPUTES
Often, environmental litigation arises in the context of disputes over real property.
Waterfront property interests, for example, are often the subject of litigation. Disagreements about access, use, and development of shoreline property commonly end up before the courts. These disputes can often involve issues such as the installation and maintenance of seasonal docks, the permissible uses of a waterfront access easement, and competing claims to accreted land.
Parties can also negotiate or litigate to resolve environmental issues relating to real property transfers. Contaminated properties often become burdened by regulatory restrictions that hamper a purchaser’s development plans. Moreover, liability for contaminated property can run with the land, leaving an unsuspecting purchaser obliged to clean up contamination caused by a previous owner. Therefore, questions concerning the effectiveness of past environmental remediation activities and the continuing existence of on-site contamination are of upmost importance to prospective purchasers. Often, parties will negotiate to contractually transfer the responsibility to clean up a contaminated property prior to its sale, but it is equally common for disputes between past and present owners of contaminated property to result in litigation.
Whenever real property disputes involve issues of environmental law, experience with the underlying environmental statutes and regulations is central to effective handling of any negotiation or litigation.
CONTESTED CASE APPEALS
In Michigan, a person adversely affected by a regulatory decision made by the Michigan Department of Environmental Quality (the "DEQ") can appeal that decision through an administrative process known as a contested case hearing.
Often, these contested case hearings involve permit applications. If the DEQ denies a permit application, an applicant may appeal the DEQ’s decision by initiating a contested case hearing. In other instances, a person may choose to appeal the DEQ’s decision to issue a permit to some third party. This type of appeal is often filed by a person who feels that their neighbor’s permit was wrongly granted and that the permitted activity will adversely affect the person’s property rights.
Contested cases are handled through the State Office of Administrative Hearings, and result in a final agency determination by the director of the DEQ. The final agency determination resulting from a contested case, as well as any other final agency determination such as the decision to impose a penalty, can be appealed to circuit court. There, it is handled by the circuit court trial judge as an appeal on the administrative record.
Like other litigation, contested case hearings involve the application of legal standards, follow prescribed procedures, and require knowledge of the underlying environmental statutes and regulations. Experienced representation is extremely helpful when negotiating these complicated issues.