Changing Times

The practice of law is expanding as environmental problems worsen, raising unique conflict resolution challenges: conflicts that involve new issues, multiple stakeholders, and, often, several jurisdictions. There is a need for new forums to supplement and substitute for adjudicatory tribunals. Lawyers must learn new strategies to convene those affected and represent them successfully in these forums. This conference examines several contexts where new approaches to lawyering are required and being used with success. These include President Obama’s memorandum on collaborative governmental decision-making, the adjustment of property rights in communities threatened by sea level rise, the siting of energy generation and high-technology energy facilities, and new regulatory approaches to mitigate climate change involving energy consumption and CO2 emissions. Experienced attorneys who successfully use new conflict resolution strategies and forums for conflict management will discuss the role of lawyers in representing clients as this area of practice evolves, particularly in marshalling facts to define and resolve interests involved. Panelists will discuss real cases, practical tools and techniques, and successful forums and strategies.

Agenda

8:30am - 9:00am Registration for morning or full-day conference

9:00am - 12:00pm Morning Session

The morning panels will engage participants and panelists in discussions that probe the role of lawyers in crafting and using successful strategies for managing conflicts. Facilitator: Ridgway M. Hall, Jr., Crowell & Moring, LLP

Panel One: Influencing Decision-Making Through Collaborative Governance

This panel will begin with a discussion of the significance of President Obama’s January 2009 Memorandum directing federal agencies, such as the EPA, to use collaborative governance techniques in decision-making, rule-making, and policy setting. The panel is designed to delve into techniques lawyers may use to influence new forums and processes that will be used under the Presidential Memorandum at both the federal and state agency level. Panelists will discuss practical and successful examples of creating and using forums to influence public policy, government programs, funding decisions, and the settlement of disputes involving local, state, and federal agencies and private parties.

The focus will be on matters of environmental concern such as watershed protection, water rights, mitigating adverse environmental impacts, and the management of climate change. A case study will be discussed that demonstrates how creative lawyering brought about the resolution of a conflict involving private clients, public stakeholders, governmental agencies, and other institutions, including the EPA and two state agencies.

Moderator:
Rachel E. Deming, Partner and Environmental Mediator, Scarola Ellis LLP

Speakers:
David Batson, Acting EPA Dispute Resolution Specialist, U.S. Environmental Protection Agency
Michael Bogert, Senior Counsel, Crowell & Moring, LLP
Cherie Shanteau-Wheeler, Senior Mediator/Senior Program Manager, U.S. Institute for Environmental Conflict Resolution
Edna R. Sussman, Arbitrator and Mediator, SussmanADR LLC

Panel Two: Yielding to the Rising Sea? Creating Forums for Adapting Development to Storms, Floods, and Sea Level Rise

The initial signs of sea level rise and more intense storm events along coasts and estuaries forecast a host of conflicts about title to property, rights to develop affected land, negotiating equity deals and project financing, the uncertainty of the science involved, the location and relocation of infrastructure, insurance coverage, and regulatory strategies at the state and local levels. Successful and timely management of these challenges requires innovative strategies, forums, and collaboration between various stakeholder interests and jurisdictions. Case studies will be presented from the New York Metropolitan area including New York City, Long Island Sound, and the Hudson Valley . Recent trends in regulation and case law will be discussed and methods of creating new forums and strategies for managing these conflicts will be presented and evaluated.

Moderator:
Usha Wright, Esq., Executive Vice President, O’Brien & Gere

Speakers:
Jessica Bacher, Senior Managing Attorney, Land Use Law Center
Curtis Fisher, Regional Executive Director, National Wildlife Federation’s Northeast Regional Center
Sarah G. Newkirk, Coastal Program Director, The Nature Conservancy
George Stafford, Deputy Secretary of State, State of New York Department of State

12:00pm - 1:30pm Lunch Session

(Please note that you must be registered for the lunch session to attend)

The Nature and Extent of the Burlington Northern Decision on Collaborative Remediation Efforts at Multi-Party Superfund Sites.

The consequences of the Burlington Northern decision and new dispute resolution strategies that may be useful to avoid protracted litigation in light of the opinion will be discussed.

Speaker: William H. Hyatt, Jr., Partner, K & L Gates LLP

1:00pm - 1:30pm Registration for the afternoon session

1:30pm - 4:30pm Afternoon Session

The afternoon panels will involve participants and panelists in discussions that probe the role of lawyers in crafting and using successful strategies for managing conflicts. Facilitator: Michael L. Rodburg, Esq., Firm Chairman, Lowenstein Sandler PC.

Panel Three: Skills and Strategies to Remove Obstacles to Renewables and Energy Efficiency Strategies

The development of clean energy sources is perhaps the greatest challenge we face in the next decade. Negotiating disputes over permits or power purchase agreements for renewable energy generation facilities will be discussed , as well as, managing disputes over energy-saving technologies. District electricity systems may depend on the willingness of utilities to waive provisions of their rate agreements, developers may find advantages in negotiating host community agreements in siting facilities, and the affected communities want access to effective participation. What are the advantages to clients participating in new forums to negotiate these arrangements and what value can lawyers add by their participation in the process?

Moderator:
Eleanor Stein, Esq., Administrative Law Judge, New York State Public Service Commission *affiliation for identification purposes only

Speakers:
Lisa F. Garcia, Chief Advocate for Environmental Justice and Equity, NYS Department of Environmental Conservation
Peter V. K. Funk, Jr., Partner, Duane Morris LLP
Robert M. Loughney, Esq., Couch White, LLP

Panel Four: Negotiating and Selecting Sustainability Practices to Mitigate Climate Change

State, regional, and local governments can use regulatory authority to reduce energy use and CO2 emissions in a variety of ways that mitigate climate change and accomplish sustainable development. These regulations affect the bottom line and substantive interests of builders, developers, building owners, architects, contractors, and other professionals. Regulations and environmental mitigation conditions can require compliance with enhanced energy conservation codes, the use of high-technology energy conservation systems, and compliance with LEED standards, among others. The cost impacts of these regulatory standards can be mitigated through zoning bonuses, tax credits, and direct subsidies supported by the capital investments of local, state, and federal agencies.

Lawyers must understand the tension between regulations and incentives, create successful forums in which all available resources and benefits can be discovered and discussed, and negotiate agreements. This presents unique challenges to lawyers representing the affected parties. This panel will discuss how to advise and represent clients on alternative dispute resolution strategies in regulatory proceedings and adjunct proceedings where these issues are raised.

Moderator:
Pamela Esterman, Esq., Sive, Paget & Riesel, P.C.

Speakers:
John Cappello, Esq., Partner, Jacobowitz & Gubits, LLP
Caroline G. Harris, Esq., GoldmanHarris LLC
Howard Kaufman, Esq., Executive Vice President and General Counsel, Leyland Alliance LLC
John R. Nolon, Esq., Director, The Kheel Center on the Resolution of Environmental Interest Disputes

Please see the Theodore W. Kheel Center on the Resolution of Environmental Interest Disputes Web site for more information.