Environmental Law Explored: A Podcast SEERies – Details, episodes & analysis

In this podcast, David Rieser (K&L Gates) and Amy Edwards (Holland & Knight) will discuss the challenges and uncertainties of incorporating PFAS compounds into Phase I environmental assessments, including how to detect their presence and manage associated risks in real estate transactions.

Now that EPA has identified two PFAS compounds as hazardous substances, ASTM’s most recent Phase I methodology (ASTM E-1527-21) allows environmental professionals to include those PFAS compounds as part of their Phase I assessment. Yet it’s not clear how they determine whether PFAS are present or likely present at a property, let alone whether that presence is the result of a past or threatened release.

On the one hand, PFAS can be associated with certain locations, such as airports which used firefighting foam and certain industries such as manufacturers producing non-stick material and products. At the same time, PFAS have been found in surprising places with no clearly identifiable sources, such as Antarctica. While Phase Is are always more art than science, the level of uncertainty around PFAS makes the process especially fraught. Buyers and sellers will have to decide whether this is an issue they want addressed and consultants will be concerned about their risks of addressing or not addressing PFAS. These choices may affect the ability of the buyer to assert an innocent landowner or bona fide purchaser defense to a CERCLA claim regarding the costs to address PFAS. Unscrupulous parties may look to take advantage of the uncertainty to obtain favorable leverage and unscrupulous consultants may use the uncertainty to sell unnecessary services.

In short, this is a good time to hear from experts in Phase I requirements and nuances. Amy Edwards has participated in the ASTM Phase I process from the beginning, has a wealth of environmental transactional experience and has read more Phase Is than she cares to admit. David Rieser is an experienced environmental attorney and has written extensively on transactional issues. Together they intend to talk through the PFAS issues in Phase Is in the hope of finding useful approaches to deal with these thorny issues.

In this final episode of the Global Climate Change and U.S. Law series, editor Michael Gerrard will talk with Tracy Hester, Instructional Professor of Law at University of Houston Law Center, and Peter Lehner, Managing Attorney for Earthjustice's Sustainable Food & Farming Program, about engineered methods that remove the pollution before it goes out a smokestack, or that draw it down from the atmosphere; and changed farming methods to reduce agricultural emissions and absorb carbon in plants and soil. This episode will be focused on Part 5, "The Next Legal Frontiers," of "Global Climate Change and U.S. Law 3rd Edition."

Get your copy of Global Climate Change and U.S. Law, Third Edition here: Global Climate Change and U.S. Law, Third Edition (americanbar.org)

In the second of two episodes, Quentin Pair continues a discussion on his career and environmental justice, and shares his thoughts on the future of EPA with Phillip Dupré, a Senior Attorney at the U.S. Department of Justice, ENRD - Environmental Defense Section, and past member of the Section’s Leadership Development Program. This podcast was recorded in late 2020.

In the first of two episodes, Quentin Pair discusses his career, which included serving as senior trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice for many years and working on environmental justice issues while at the EPA, with Phillip Dupré, a Senior Attorney at the U.S. Department of Justice, ENRD - Environmental Defense Section, and past member of the Section’s Leadership Development Program. This podcast was recorded in late 2020.

With its intricate layers of international, federal, and state protections, environmental law is more established than animal law. In this podcast episode, Glenda Valdez, a recent graduate of Lewis & Clark Law School, interviews Professor Randall Abate, Assistant Dean for Environmental Studies and a Professorial Lecturer in Law at The George Washington University Law School, about the experiences of these two fields and how they can work together to secure mutual gains.

Professor Abate has a distinguished background teaching, writing, and mentoring students for three decades on domestic and international environmental law and animal law topics. He has published six books on these issues, with a recent emphasis on climate justice for vulnerable populations of humans and nonhumans. His latest book is titled What Can Animal Law Learn From Environmental Law? (Environmental Law Institute Press, 2d ed., 2020).

This podcast episode examines key legal and policy issues around the use of prescribed fire to reduce wildfire risk and the ongoing shift away from fire suppression policies to reintroducing fire back onto the landscape. 

Podcast Speakers: Steven Hattenbach is the USFS Forest Supervisor for the Cibola National Forest. Steven is also an attorney and presents for CLE’s and trainings on topics regarding wildfire liability. Anthony Martinez is the Fuels Program Manager for the Cibola National Forest and has been Incident Commander on multiple wildfire operations. Both presenters offer a unique senior level management and law/policy perspective. Additionally, both presenters have been involved with the recent pause and resumption to USFS prescribed fire operations.

Podcast moderator: Elias Kohn received a Master’s Degree focused on forestry at the Yale School of the Environment, has published law review articles on wildfire liability, and completed wildland firefighting training certifications in 2022.

Martin Topper discusses his career at the EPA, where he worked from 1987-1996, including serving as National Indian Program Coordinator for over seven years, with Cynthia Harris, staff attorney and Director of Tribal Programs at the Environmental Law Institute and past member of the Section’s Leadership Development Program. This podcast was recorded in late 2020.

John Cruden discusses his career, including his more than two decades, as a senior leader on environment and natural resource matters at the U.S. Department of Justice, with Emily Mott, senior associate at Baker Botts LLP and past member of the Section’s Leadership Development Program. This podcast was recorded in late 2020.

In the eighth and final episode of the Environmental Laws and Regulations for Emerging Microplastics Concerns Series, Sarah Morath, Associate Professor at Wake Forest Law, and Megan Baroni, a partner with Robinson+Cole, discuss future litigation trends in the microplastics realm.

This podcast series is moderated by Kevin Minoli and Leland Frost, attorneys with the law firm of Alston & Bird, LLP.

In the seventh episode of the Environmental Laws and Regulations for Emerging Microplastics Concerns Series, Jennifer Novak, an attorney at the Law Office of Jennifer Novak, and Kevin Budris, Advocacy Director at Just Zero, dive into the near-term and future efforts to regulate microplastics in the water, air, and product manufacturing.

This podcast series is moderated by Kevin Minoli and Leland Frost, attorneys with the law firm of Alston & Bird, LLP.