Foreword

• Pages: 19-20

Foreword

Many lawyers—and probably a large majority of those who call themselves

litigators—believe that that there is nothing special about environmental

litigation. Litigators are quick studies, and by all appearances, mastering

the complexities of an environmental case is not inherently more difficult

than mastering the complexities of a securities case or a patent infringe-

ment case. Candidly, there is more than a kernel of truth to this view. Most

environmental litigation lawsuits are litigated in the same courts as other

lawsuits, and they are litigated pursuant to the same rules of civil and/or

criminal procedure.

At the same time, however, lawyers who practice environmental litiga-

tion with some frequency recognize that the practice is indeed “special.” First,

the litigation challenges presented by an environmental case frequently are

idiosyncratic if not unique. For example, although criminal defense lawyers

sometimes defend an accused who has made statements the Government in-

troduces to prove guilt, lawyers defending criminal matters in the environ-

mental field routinely defend persons who were required to provide the

Government with all of the facts on which its case is built and even were

required to certify those incriminating facts as “true and accurate.” Similarly,

toxic tort lawyers frequently find themselves litigating “science” questions

for which our common-law jury system is ill-equipped. Cutting-edge epide-

miology is hard enough for lawyers to understand without the burden of

explaining it to laypersons through an expert and in compliance with the

formal rules of evidence.

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 disci-

pline presents the same “big social questions” as environmental litigation. For

example, in the last several years, environmental issues have filled the Su-

preme Court’s docket as never before. And even in the absence of compre-

hensive federal regulations—or, just as likely, because of the absence—global

climate change issues are playing themselves out daily on both the front

pages of newspapers and in scores of courtrooms throughout the country.

Third, the scope of what qualifies as “environmental litigation” is huge.

There are literally dozens of federal statues, scores of state statutes, hundreds

of common-law rules, and thousands of pages of regulations to be accounted

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