1 Relationship Between Statutory and Tort Litigation James Bruen Farella Braun + Martel LLP San Francisco

2 A Matter of Terminology “Statutory Litigation” – We’re Being Literal Here “Tort Litigation” - Meaning Environmentally Related Common Law Tort Suits

3 Statutory and Tort Litigation – Up and Down Relationships 1. Statutory Litigation Can Give Rise to Tort Litigation and Vice Versa 2. Statutory Litigation Can Complicate Tort Litigation and Vice Versa 3. Statutory Litigation Can Eliminate Tort Litigation and Vice Versa 4. Statutory Litigation Can Co-exist with Tort Litigation 5. An Attorney Can’t Do One Without Considering the Other 6. Tips for the Practicing Environmental Lawyer Interrelationships Important to Both Litigators and Counselors Advisors Can Promote/Thwart Interrelationships Trial Lawyers Can Tie Advisors’ Hands

4 Investor Confidence Market Confidence Employee Support The Occidental DBCP Litigation

5 Statutory Litigation Can Give Rise to Tort Litigation 1.Environmental Criminal Litigation 2Environmental Agency Enforcement Lawsuits 3.Citizen Suits 4. Natural Resource Damage Lawsuits 5.Sarbanes-Oxley Litigation (For Non-Disclosure of Enviro Conditions) 6.Zoning Litigation 7.NEPA Litigation etc. With Respect to Any Statutory Suit – Breach of Duty to Environmental Resource Tort Actions by Affected Persons and Property Owners Tort Actions by Affected Company Employees Tort Actions by Private Attorneys General Tort Actions by the Real Attorney General

6 Statutory Litigation Can Complicate Tort Litigation State of New Mexico et al v. General Electric Company et al The Removal Phase Statutory Litigation Can Eliminate Tort Litigation State of New Mexico et al v. General Electric Company et al The Conflict Preemption Phase

7 Statutory Litigation Can Co-exist with Tort Litigation 1.Common In Mass Tort Situations ….. A Symbiotic Relationship High Publicity Pressure on Public Officials “To Act” Employees of Defendants May Be Conflicted Environmental Justice Issues May Arise Incentive for Government Counsel/Plaintiffs’ Counsel oPlace Defendant(s) in a Two-Front War oCollaborative/Coordinated Litigation/Non-Litigation Pressure oBuild Market Pressure Thru Continuous Negative Publicity oUse Gov’t Permit Applications/NOVs/Orders = Discovery oForce Settlement Thru Threatened Loss of Authorizations oRaise the Specter of Issue Preclusion 2.Case In Point…………………………The Gaylord Paper Mill Proceedings

8 An Attorney Can’t Do One Without Considering the Other 1.Common Witnesses 2. Common ESI and Documents 3. Common Internal Forces Marshal/Coordinate Business Resources Maintain Good Relations with Employees Resist Scapegoating Resist Spoliation of Evidence 4. Common External Forces Market Reputation Investor Confidence Need To Maintain Ongoing Government Authorizations 5.Common Defense Themes 6.Interrelated Legal Risks Issue Preclusion Limited Fund Issues Insurance – Defense and Indemnity

9 Tips for the Practicing Environmental Lawyer... in a Word “Speed” 1.Establish Order and Control 2.Establish EARLY Command of the Witnesses/Evidence 3.Promptly Notify Insurance 4.Decide Whether to Fight or Fold 5.Immediately Develop an Exit Strategy ……………… With Fall-Back Options Divide and Conquer Pick the Weakest Link……………………….……Pick a Winner & Try It Turn Pockets Inside Out Empower Facility Work Force…………………... The Union As Saviors Use Legal Jujitsu…………………………………..The Mary Carter 6.Establish Common Themes & Communicate 7. Be Proactive With the Media, Industry Analysts, Regulators Common Spokesperson The Four Responsibilities 8.Establish Milestones and Litmus Test………………...Continuous Loop