By James Langford | June 2, 2021 | Lawyer Limelights, Law Firm Roundtable
The New Orleans plaintiffs’ firm Kanner & Whiteley has been punching above its weight for four decades. The firm’s environmental team shows how. From left to right: Katherine Wells, Lili Petersen, Allison Brouk and Allan Kanner. Photo by Sara Essex Bradley.
Think of the Biblical account of David slaying the fearsome warrior Goliath.
Or a pint-sized Harry Potter vanquishing the evil wizard Lord Voldemort in J.K. Rowling’s first book.
Those stories show that in a fight, being bigger and more experienced isn’t necessarily better, a truth that the litigation boutique of Kanner & Whiteley is adept at wielding to its clients’ advantage.
With just nine lawyers, the New Orleans firm founded in 1981 has commanded a leading role in complex, headline-making environmental cases from the Deepwater Horizon oil spill MDL, in which it represented the state of Louisiana, claims for natural resource damages (“NRD”) litigation against a number of industrial entities on behalf of the state of New Jersey, to those involving likely carcinogenic contaminants including firefighting foam in New Mexico and Vermont.
“It’s funny how lawyers evaluate themselves and believe big is better because we all went to law school and heard about the big firms and how they must be better than all the other firms,” says named partner Allan Kanner. Focus and expertise beat size every time.
Landmark litigation the firm handled for the state of New Jersey against ExxonMobil, proves the point. The small size of the Kanner & Whiteley team gave its attorneys an edge because they mastered case details and their interplay across different fields of expert testimony, knew the points that mattered most for their side and were able to adapt on the fly if needed and knew how to work together as a team. As a result, they are quicker and more efficient.
“We all pretty much had a sense of what the case was going to be about before we went to New Jersey to try it, and we never really took our eye off the ball,” Kanner says.
The relative youth and responsibilities of some of the firm’s attorneys is another counterintuitive edge. Their successes sparring with older, more experienced lawyers at large defense firms have prompted some of Kanner & Whiteley’s opponents to rethink how they conduct their day-to-day litigation.
In a recent roundtable discussion, Kanner & Whiteley attorneys opened up to Lawdragon about the firm’s trailblazing environmental law practice, explained the trends that will shape the field in the months and years to come and recalled how they got started.
The firm’s founder, Allan Kanner, originally planned a career in teaching law, but while clerking for a federal judge, the late Robert Vance, a partial meltdown occurred at a reactor at Three Mile Island Nuclear Generating Station near Harrisburg, Pa., in 1979. Judge Vance encouraged him to litigate environmental cases instead, finding his creativity and legal skills more suitable for court than classroom. This suggestion was well-made: Environmental Law was not taught in law school at the time.
Undertaking the Three Mile Island challenge, Kanner recognized immediately a huge chasm in the law. “You had the public environmental law, the Clean Water Act, and the Clean Air Act, that set the standards,” says Kanner. “And then, on the other hand, you had tort law, which was mostly the province of bodily injury and less explored in terms of environmental damages and trespass.”
Lawdragon: Can you talk more about your mindset during this period?
Allan Kanner: It immediately dawned on me that if you could help the evolution of tort law and maybe also lobby for some evolution in the public law, you could actually do some real good and effect change. For example, the Three Mile Island case, I think was the first to really raise the medical monitoring issue as a remedy because it was different than other kinds of remedies. Most torts involved injuries that manifested right away. In Three Mile Island, one of the big issues was whether to try to protect the person in the future or to sue in the present for increased risk. The question was how to take care of people who’ve been exposed to a contaminant before they manifest a serious harm. One possibility was to provide monitoring and try to detect it earlier. Cancers that are detected earlier can be easier to treat, and other times you can implement something as innovative as offset programs. In the Three Mile Island area, we put money into things like wellness programs for pregnant women to enhance or produce better birth outcomes. I was also working on some personal injury cases for children, first-trimester birth defect cases that eventually I settled. Those were very difficult cases.
But the notion is if you know complex litigation, if you know federal civil procedure, if you can familiarize yourself with public environmental and private environmental law, you can effect real change. There was, in the 1980s, a huge gap that needed to be filled if anything good was going to happen for people. That’s what got me interested in it. I never set out or thought I would be an environmental lawyer, but you make the contribution you can make when you can do it. For me, at that moment, that was it.
Shortly thereafter, in 1981 I founded the firm in Pennsylvania, later to be permanently relocated in New Orleans and to be known as Kanner & Whiteley. We expanded our environmental practice to include several outstanding environmental attorneys including these partners, Lili Petersen and Allison Brouk as well as Katherine Wells.
LD: Lili, tell me about how you became a lawyer and what brought you to Kanner Whiteley.
Lili Petersen: My family tells me to say I’m originally from California because that’s where I grew up, although I was born in New Orleans. My dad was in the Army as a doctor, and so we moved around a good bit before settling in California. I went to Tulane Law School, in part because we had grandparents down here and had lived here and my sister was at Tulane Med. I decided I’d give it a shot, even though I had not gone far from my home, which is in the Bay Area in northern California for college. I had a wonderful time there and enjoyed the opportunity early on to participate in litigation at the Environmental Law Clinic. It’s a beautiful school, I loved the city, but I had every intention of going back to California to practice environmental law somewhere. But then I decided I didn’t want to leave New Orleans. Although New Orleans does not really have a big environmental plaintiffs’ bar, it has a large defense bar due to the oil and gas industry. I was working in insurance defense, and then I got this ad for an environmental position, and it was clearly plaintiff side. And the firm, I’d been told, did some fascinating cases. I met Conlee Whiteley first, and I remember she showed me this huge box of documents to give a realistic idea of what environmental litigation would really be like, and asked me if I would enjoy looking through that. The amount of paper we end up using is crazy for environmental law (we are trying to do better…), but that’s how I started.
I loved the work immediately, and all of the work has been topical. It’s been all over the country. It used to be more class actions and groundwater contamination, but then we moved into the representation of New Jersey, and that has been going on since the early 2000s. I never thought I’d spend that much time in New Jersey, but being in on the creation of their NRD Program made it all the more interesting because we were literally making the law as we went along. We’ve already won appellate rulings on loss of use as part of natural resource damages, the interaction of statutory and common laws, and statute of limitations. And we’re still trying to do more.
LD: Allison and Katherine, can you discuss your entry into environmental law?
Allison Brouk: I first became interested in environmental law while traveling in Central America as a college student, where I saw first-hand the difference in the use of land that was protected by environmental laws and land that was not. I was intrigued by the way that laws would directly influence people’s actions, and in turn, how those actions impacted the health of the environment, so I decided to pursue a career in environmental law. While at Tulane Law School I participated in the environmental law program, and it was during my second year that the Deepwater Horizon exploded in the Gulf of Mexico, which ultimately led to an opportunity to join Kanner & Whiteley, who was representing the State of Louisiana in its claims against those responsible for the oil spill. That became the first case that I worked on as a young lawyer. Soon after that I began working on the NRD case against ExxonMobil in New Jersey. Being at a small firm, even though I was a young lawyer, my role in these historic cases was as involved as a senior attorneys’ would be at any of the larger firms we were litigating with. I bring those same lessons to each new case, but also keep an eye on differences that require a different approach.
Katherine Wells: I started my legal career on the defense side, typically representing large corporations and oil industry clients. But I originally became interested in law while working at a Washington, D.C.-based international health policy firm that provided technical assistance to policymakers and governments to ensure that gender and maternal and child health issues were integrated into national laws, policies and budgets. And I have always been an environmentalist: I grew up visiting a farm in North Mississippi, where I’m from, every weekend and so preserving our environment had always been important to me. So, while I gained a great deal of valuable experience defending corporations, ultimately that work did not really hit home with me. I had always wanted to work on the plaintiffs’ side and when I learned about the opportunity at Kanner & Whiteley, I thought it would be a good fit and allow me to use the skills I had gained while working on the environmental defense side. And I was right; it has been a great experience. We work on cutting edge cases and have a national presence, which allows us to practice in a number of different states that have very different legal frameworks from the system in Louisiana, where I had previously been focused. And given the size of the cases we work on, the level of advocacy that the defense brings is generally top-notch, which constantly challenges our team to operate at or above that same level. Finally, the work we do is constantly evolving, and this keeps it interesting.
LD: The willingness to tackle complex issues that can lead to new law has been one of Kanner & Whiteley’s hallmarks since its founding. Can you talk about a few more of the cases you view as particularly significant?
AK: One example – and really, all the credit goes to my partners – is our work with the Conservation Law Foundation on landmark litigation against a number of legacy oil companies like Shell Corp. over failure to address the risks of increased flooding and greater storm tides at its Providence Terminal in Rhode Island, due to the effects of climate change. Shell’s motion to dismiss was denied, and the case has proceeded to discovery, which is significant, since it’s the first climate change case to do so. We’re now going to have a chance to get some discovery and develop some models and do some real immediate good for people and encourage industry to do some hardening of infrastructure – consistent with sound engineering practices which are required by Clean Water Act permits – at their facilities to avoid spills, explosions and other failures due to extreme weather. In the Gulf region, we’ve seen tons of that after hurricanes, and the rest of the country is beginning to experience the effects of this and other natural disasters, such that these are no longer just coastal issues.
Another case, dating to 2004, involves one of New Jersey’s first natural resource damage cases against ExxonMobil over two of its former refineries in the state. After 12 years of litigation, we were able to resolve the oil giant’s liabilities for $225M, through a settlement approved by the trial court and upheld on appeal.
We recently were asked to assist New Mexico in addressing the Department of Defense’s local pollution activities, and came up with a great theory using RCRA’s imminent and substantial endangerment provision, to address a really inexcusable pollution situation. Since the U.S. Military is one of our nation’s largest polluters, the case is very important.
We’re also representing the Permian Basin oil companies fighting against the Nuclear Regulatory Commission, which is trying to move America’s spent nuclear fuel via planes and trains to two spots in the Permian Basin, in Texas and New Mexico, to sit, basically, in shallow holes on top of unstable geology.
We’re also known for bringing the first few successful Cancer Alley cases for injured fence-line communities that was subsequently lauded by the U.S. Civil Rights Commission and environmental justice advocates.
LD: What’s the interaction between the four of you in terms of what you’ve mastered, what you’ve built, and what the new generation of lawyers is bringing to this battle?
AK: Well, Lili, Allison and I tried the Exxon case. We worked well as a team, using a divide and conquer approach to proof and heavy motion practice from the other side. Allison came to us right out of law school, has developed clients of her own and been an instrumental part of everything that we’ve done for the Conservation Law Foundation. Really, Lili and Allison have done 99 percent of that with some great CLF lawyers. I focus on court, trial prep, helping develop new theories and new business. Lili is running most of the New Jersey cases still, has a great working relationship with the DEP and AG’s team, and the state will probably build a statue for her one of these days at a Jersey Turnpike exit. Allison is running our Vermont litigation over per- and polyfluoroalkyl substances (PFAS), a family of compounds and possible carcinogens found in a variety of products, including aqueous film-forming foam that is used in firefighting exercises. She’s also running our New Mexico RCRA litigation, though everybody’s involved and helps when needed. And the clients have been pleased with the results she has achieved in these cases so far. Katherine and I are currently working on deposition strategy and prep for one of our NRD cases.
LD: Allison, and then Lili, can you expand on some of your work with your current cases?
LP: The cases I currently spend most of my time on are for NRD on behalf of the state of New Jersey against a few oil companies and several claims under the Clean Water Act and the Resource Conservation and Recovery Act which are proceeding in Rhode Island, Massachusetts and Connecticut. This latter group of claims is focused on violations of applicable permits and regulations due primarily from a failure to guard against the effects of climate change such as increased weather variability, sea level rise, storm surge and other climactic events. These cases are fascinating in that they involve highly regulated industries such as oil terminaling facilities where we argue that their permits and associated regulations require express consideration, identification of and adaptation for known foreseeable risks (including those from climate change). We have seen that these companies routinely incorporate adjustments to armor against the risks of climate change where they are engaging in new undertakings and developing assets but they seem to turn a blind eye when it comes to their existing facilities such as the ones that are the subject of our claims. Much of our litigation has, thus far, been the subject of hard-fought motions to dismiss, which we have defeated. In one case, relating to the Shell Terminal in Providence, R.I., we are beginning the discovery process.
The current New Jersey NRD cases involve similar claims to those that were the subject of the former Exxon Mobil Corporation refinery cases that we litigated and settled after eight months of trial in 2015. Because the area of law is relatively novel, the litigation often involves relitigating issues other courts have rendered decisions on but are arguably not precedential for various reasons. That briefing typically involves revisiting the rationale for some of the holdings rendered in our prior cases where we were successful in our prior briefing of the issues. And, just as when I started at the firm, there are still many, many pages of documents to review and while they are more often now produced electronically, I still find myself craving the paper copies!
However, the real focus of these cases is the actual assessment of natural resource damages, which is a process referred to as Natural Resource Damage Assessment (“NRDA”), and the development of restoration plans to compensate for those damages. We work with the experts within the Department of Environmental Protection and outside experts in this field to determine the amount of restoration or replacement of natural resources that will be required to offset the damages caused by responsible parties. I’ve worked closely with state employees for years on these assessments and have developed close professional and personal relationships with many of these wonderful people who all share in our goal of restoring lost ecosystems.
The importance of this work was highlighted when, in 2017, the citizens of New Jersey voted to amend the State’s Constitution to require that funds recovered under the program be dedicated to that natural resource restoration and replacement work of the Department. Over the course of the nearly 20 years that our firm has partnered with the Department in pursuing NRD claims, the State has completed a number of restoration projects that have brought thriving ecosystems back to life in coastal areas of New Jersey.
AB: My current work focuses on our representation of the State of New Mexico in its lawsuit against the United States related to PFAS contamination at Cannon and Holloman Air Force Bases, as well as the State of Vermont in two statewide PFAS cases against manufacturers of PFAS and PFAS-containing products.
The New Mexico Attorney General retained Kanner & Whiteley to represent the State, the United States and the U.S. Department of the Air Force seeking an order requiring the Air Force to clean up extensive PFAS contamination at the Cannon Air Force Base near Clovis, New Mexico and the Holloman Air Force Base near Alamogordo, N.M., resulting from decades of defendants’ releases of PFAS-containing aqueous film-forming foam (known as “AFFF”). Defendants’ contamination of the environment at Cannon and Holloman with PFAS has migrated offsite into the surrounding communities, impacting drinking water and agricultural wells, including those used by neighboring dairy farmers. The impacts that these contaminants have had on these communities are real and significant, but the Air Force has been dragging its feet in the cleanup process, saying that there are too many contaminated sites across the country for it to get to the problems in New Mexico. But the Attorney General and the Secretary of the New Mexico Environment Department have the responsibility to protect the people and environment of the State, so we, as outside counsel, get to think of creative strategies and solutions to get relief as soon as possible and protect against further harmful effects of this contamination.
In Vermont, we represent the State in its efforts to protect Vermont’s drinking water and natural resources from dangerous PFAS chemicals. The State filed two lawsuits against companies for the manufacturing and distribution of PFAS chemicals and PFAS-containing products in the State. One lawsuit specifically focuses on harms caused by PFAS-containing AFFF, and the other, a consumer products-based case, is pending in Vermont Superior Court. We were recently successful in defeating defendants’ motions to dismiss when the Vermont Superior Court ruled in favor of the State and denied in large part defendants’ motions. Discovery is now proceeding as to the State’s claims. The manufacturers of these chemicals have been sued by hundreds of plaintiffs across the country, including other states, and have taken a hard stance in their legal defense. There is no exception in Vermont, where even early discovery battles have proven to be aggressive. That, combined with the number of documents and witnesses to be involved in discovery show how challenging these kinds of cases can be, but it is nothing that we haven’t faced before.
LD: Katherine, can you discuss the matters that will be keeping you busy in the months or years ahead?
KW: I work mainly with Lili on the NRD cases in New Jersey and with Allison on the PFAS cases in Vermont and New Mexico. In the New Jersey NRD cases, the practice is constantly building on the firm’s work over the past fifteen years. There is a whole body of institutional knowledge that is applied in different ways depending on the specific case, and it is fascinating to see firsthand how this actually moves the law forward. The PFAS cases are interesting because the harm that can come from these contaminants has only recently come into the public eye, even though the knowledge of the potential harm has been known by manufacturers for decades. And as an emerging area of law, we are constantly considering how to address novel issues such as PFAS contamination as they arise.
LD: It seems like, with your successes, the firm really has a SWAT team capability.
AK: True. I’m very proud of that. First, the attorneys here are incredibly talented and have high levels of expertise in trial practice and environmental law. Second, we have a culture of taking ultimate responsibility, which means they deliver high quality work every time. We have five lawyers who have tried a natural-resource damages case. I don’t think any firm but the U.S. Department of Justice has more lawyers who can say that.
Bigger is not always smarter. I have found that when a core team immerses itself in the litigation goals, strategies and substance are shared and internalized for trial – start to finish – it creates the best results. Everybody on our team knew what the pivotal issues and the main themes of the State’s case in our New Jersey NRD case were since the start of discovery and motion practice, and we did not waiver from that at trial. Our smaller size plus the consensus we had formed based on real teamwork made a real difference in our presentation at the end of the day.