Negotiating Consent Decrees for Environmental Violations: Critical Strategies for Modifying and Managing Compliance

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, June 21, 2022

Recorded event now available

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Course Materials

This CLE course will guide lawyers in negotiating consent decrees for violations of environmental regulations. Our panel will offer violation-specific best practices and present fellow practitioners with mission-critical pointers on the negotiation and drafting of critical consent decree clauses. The panel will also address how to avoid missteps in negotiating modifications of consent decrees after entry.

Description

Negotiating settlement for violations of environmental regulations is a long and potentially arduous process. Negotiations over the resulting consent decree may have occurred against a continually shifting landscape over several years. The replacement of critical decision-makers, changes in the law, and differing enforcement priorities from one administration to the next can create significant challenges to crafting a long-range solution.

During the negotiation process, practitioners representing enforcement targets must also consider the potential for litigation if settlement is unattainable. This requires an ongoing evaluation of potential defenses and readiness to downshift into trial prep and a deep enough understanding of the issues and stakes to offer strategic advice on approaches to maximize the benefits of the process. Consent decree obligations may be more agreeable, for example, if the terms provide the target a strategic advantage over competitors regarding cost or innovation.

Listen as our panel of environmental attorneys shares from their deep experience negotiating consent decrees and provides other practitioners fresh insight on navigating the process, pitfalls to avoid, and how to maximize potential advantages along the way.

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Outline

  1. Overview of consent decrees
    1. Violation-specific considerations
    2. Available defenses
  2. Enforcement actions
  3. Citizen suits
  4. Potential strategic advantages
  5. Modifying consent decrees
    1. Change of circumstances
    2. Change of law
    3. Force majeure

Benefits

The panel will review these and other critical issues:

  • Critical issues in drafting the decree
  • Avoiding or modifying dangerous decree clauses
  • Obtaining closure through careful drafting
  • How can counsel leverage available defenses to gain better long-range footing when negotiating consent decrees?
  • What adjustments should counsel make to accommodate apparent differences in enforcement priorities under the current administration?
  • What steps can counsel take to manage change, law, and circumstances during the negotiation process?

Faculty

Riesel, Daniel
Daniel Riesel

Principal
Sive Paget & Riesel

Mr. Riesel has litigated a wide variety of cases which include numerous environmental matters, white collar defense,...  |  Read More

Vaccaro, Katherine
Katherine L. Vaccaro

Partner
Manko Gold Katcher & Fox

After 15 years of focusing on regulatory and other matters related to air quality, Ms. Vaccaro now helps lead the...  |  Read More

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