Preface

• Author: Kegan A. Brown and Andrea M. Hogan, Editors
• Pages: xi-xii

xi

Preface

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

tors”—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 com-

plexities of a securities case or a patent infringement case. And, 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 litigation with

some frequency recognize that the practice is indeed “special.” First, the litiga-

tion 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 introduces to prove guilt, law-

yers defending criminal matters in the environmental field routinely defend per-

sons who were required to provide the government with all of the facts on which

the government’s case is built and even were required to certify those incrimi-

nating 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 epidemiology and toxicology 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 discipline pres-

ents the same “big social questions” as environmental litigation. For example, in

the last couple of decades, environmental issues have filled the Supreme Court’s

docket. And global climate change issues continue to play themselves out daily on

both the front pages of newspapers and in scores of courtrooms throughout the

country, including recently in public nuisance litigation.

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

are literally dozens of federal statues, scores of state statutes, hundreds of com-

mon law rules, and thousands of pages of regulations to be accounted for. And

upon all of these substantive areas is imposed the background litigation frame-

work, which in the environmental arena can be federal or state court, arbitrations,

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