‘Blockbuster’ cases the new norm in enviro litigation

By Amanda Reilly | 10/12/2016 01:17 PM EDT

The United States has entered the “era of mega-cases” in environmental litigation. “You used to be able to count on one hand the number of 1-million-document cases we had. Now I can’t do that,” said John Cruden, chief of the Justice Department’s Environment and Natural Resources Division. “Now when we talk about million-document, we talk about terabytes of documents that are there. It’s so standard for us.”

The United States has entered the "era of mega-cases" in environmental litigation.

So says the Obama administration’s top environmental attorney.

Environmental litigation is more demanding and requires more of the Justice Department’s resources, but the payoffs are higher, said John Cruden, chief of DOJ’s Environment and Natural Resources Division.


Addressing an environmental law gathering in Denver last week, he cited the BP PLC settlement for the Deepwater Horizon oil spill as an example, where the company agreed to pay more than $20 billion in a deal with the government and five Gulf Coast states.

"You used to be able to count on one hand the number of 1-million-document cases we had. Now I can’t do that," Cruden said at the American Bar Association environmental law conference in Denver. "Now when we talk about million-document, we talk about terabytes of documents that are there. It’s so standard for us."

Cruden, who has been the DOJ’s top environmental lawyer since December 2014, said that the centers of complex litigation previously involved antitrust cases and, in the area of the environment, Superfund cleanup.

Superfund litigation involves complex questions of liability for contaminated sites and payment and reimbursement for cleanup.

While Superfund remains a key part of DOJ’s activities, the "mega-case" trend has spilled into other areas of environmental litigation. Another recent example is the proposed $14.7 billion settlement to resolve the Volkswagen AG emissions cheating scandal.

"The antitrust assistant attorney general just sent over people to consult with us — environment — asking how do you do mega-cases there?" Cruden said.

On top of having more documents to deal with, DOJ’s environmental lawyers are also dealing with new technology in and out of the courtroom in these big cases, Cruden said. Electronics have changed the display of information inside the courtroom, while new monitoring technologies are making it easier to track pollution in the environment.

"Technology has transformed the courtroom," Cruden said. "It’s an opportunity for us, and it’s also a challenge for us as litigators."

Increasingly, DOJ’s environmental law practice has also "gone overseas," Cruden added, where U.S. attorneys have to wade through other countries’ laws as part of litigation.

"That’s also a whole other new world for us — having just not only these massive documents and very often class-action litigation that we do simultaneously, but then dealing with this internationally," Cruden said. "Trying to figure out other countries’ laws has become part of our normal process."

Aside from big enforcement cases, DOJ is currently dealing with litigation over U.S. EPA’s Clean Power Plan and the administration’s Clean Water Rule, otherwise known as Waters of the U.S., or WOTUS. Both of those "blockbuster" cases have the "potential to really define the scope of regulatory authority at EPA," said Ronald Tenpas, a partner at Morgan, Lewis & Bockius LLP and former DOJ assistant attorney general.

In both cases, challengers say EPA has overstepped the authority given to it by Congress.

"One of the things that I think will come out of the Clean Power Plan litigation and the Waters of the U.S. litigation is some testing and illustration of very, very big constitutional themes that are not especially connected to environmental law," Tenpas said. "Environmental law will be the vehicle, in the same way that environmental law produced Chevron, which matters across every nook and cranny of administrative law."

The 1984 Supreme Court case Chevron USA Inc. v. Natural Resources Defense Council established the principle under which the courts defer to reasonable agency interpretations of statutes where Congress is ambiguous on an issue.

Environmental cases are more politically salient nowadays because they follow the narrative put forth by opponents of regulation that the executive branch is usurping Congress, said Richard Revesz, director of New York University’s Institute for Policy Integrity.

"It’s cast as some tectonic fight between the executive branch and Congress," Revesz said. "It gets more public attention."