Environmental Consent Decrees: Negotiation Strategies, Available Defenses, Modifications, Pitfalls to Avoid
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 the panel of environmental attorneys, Including MGKF Partner Katherine Vaccaro, 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.
Outline
- Overview of consent decrees
- Violation-specific considerations
- Available defenses
- Enforcement actions
- Citizen suits
- Potential strategic advantages
- Modifying consent decrees
- Change of circumstances
- Change of law
- 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?
