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Alexander Lehrer Esq. Participates On Panel “The Elephant in the Environmental Courtroom”

On April 23, 2020, the Supreme Court addressed the scope of the EPA's authority in County of Maui v. Hawaii Wildlife Fund, holding that permits under the National Discharge Elimination System are needed not only for direct discharges but also for the "functional equivalent" of a direct discharge. In reaching its conclusion, Court rejected tests used in lower courts as too narrow or too broad because they yielded results not intended by the act. The "functional equivalent" standard is open to interpretation by the EPA and lower Courts.

Hydrogeologists undoubtedly play a crucial role in environmental litigation, so litigators must understand how they analyze and test sites and make factual determinations about where groundwater discharges originate. Moreover, attorneys must communicate their expert's conclusions clearly and concisely to convince a court that their expert's opinion is the correct one. It is up to attorneys, not the geologists, to develop and present approvable site remediation strategies and defensible legal approaches. The recent SCOTUS Functional Equivalency decision has cast an even deeper umbra. As a non-geologist responsible for a successful site closure: • How can you know which hydrogeologist is right? • Do you accept your hydrogeologist’s interpretation for the simple reason that they work for you? • Which questions do you even ask your hydrogeologist to ensure your strategy is correct, approvable, defensible, and will be based on the interpretation which prevails under scrutiny?

Using the SCOTUS Functional Equivalent decision as exemplar, along with a detailed analysis of the February, 2021 EPA Guidance on Functional Equivalency, this web-course de-mystifies environmental hydrogeology and provides environmental attorneys and non-geologist environmental professionals with jargon-free explanations of the decision-relevant hydrogeologic factors which can be leveraged into integrated technical/regulatory strategies to achieve successful closures of site remediation projects and defensible cases in the event of legal actions or challenges. Environmental attorneys and environmental professionals will gain perspective and specific knowledge to identify and manage the possibilities and pitfalls inherent in most hydrogeologic investigations and remediations.

In terms of the hydrogeology of your project: It is less important for you to know the answers… …than it is to know the questions to put to your hydrogeologist… … and to your opposition’s experts.

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