Negotiating Federal Consent Decrees with the U.S. Environmental Protection Agency
Strategies for Negotiation, Implementation and Compliance
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.
The panel will guide lawyers in negotiating consent decrees for violations of environmental regulations. They 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.
The following critical issues will be covered:
- 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?
After our presentations, the panel will engage in a live question and answer session with participants so questions about these important issues can be addressed directly.