Environmental Bankruptcy Law: A Practice Guide (Alan S. Tenenbaum and Jeanne T. Cohn, ABA 2023)

ABA Press Release

The next book you buy should be Environmental Bankruptcy Law. This invaluable guide discusses two disparate statutory schemes. Bankruptcy is a cash-preservation and reorganization program designed to prevent immediate depletion of a debtor’s assets and provide interim stay relief and a time to reorganize. Environmental law, particularly the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA) is a cash-collection scheme designed to reach into the pockets of even the humblest “potentially responsible party” in order to reimburse a plaintiff’s prior environmental expenditures. Many other environmental statutes provide for governmental suits to impose and collect civil penalties for violations of the specific environmental statute, sometimes with very hefty daily penalty amounts. As this book’s introduction summarizes it, bankruptcy and environmental law are “two complex bodies of law that were created for starkly different purposes and that directly conflict with each other in key respects.” Beyond recounting differing statutory policies and provisions that are seemingly irreconcilable, the authors have created a remarkably readable book on how to practically navigate through this dense legal Serbonian Bog.

It is said that you can “tell a book by its cover.” In this case, however, one can judge this book by its co-authors. Alan S. Tenenbaum is a 35-year veteran who has long labored in the bankruptcy issues arising from environmental statutes in the Environment and Natural Resources Division (ENRD) of the Justice Department, where he is currently the Division’s National Bankruptcy Coordinator. Jeanne T. Cohn is a Trial Attorney and Bankruptcy Coordinator at ENRD. Prior to joining ENRD, Jeanne was a partner at Kirkland & Ellis LLP with a focus on environmental matters, including environmentally related bankruptcy cases.

These two experienced practicing lawyers begin with an account of the Bankruptcy Code, its purposes, its legislative development, and an overview of the Code’s chapters. The “bankruptcy for dummies” first chapter of the book will take even the novice environmental law through the basics of the statute, from its initial goals through the requirement of a filing “in good faith” through the automatic stay provisions and orderly collection and then distribution of assets.

This book is designed for both the beginning and the advanced environmental attorney. As a forty-year environmental-law veteran, I opened to the table of contents and found a specific reference to potential recovery of civil penalties in the environmental context and the implications of such collection with the automatic stay provisions of the Bankruptcy Code. I was then able to prepare a summary for my co-counsel involved in a state court environmental hearing with a bankruptcy petition newly filed by one of the parties. That was done within an hour thanks to the excellent organization of this book and the many citations in it.

Some law books are academically oriented and contain studious legal commentary on expansive subjects such as civil procedure or torts. This book is distinctly different. Environmental Bankruptcy Law is designed to be a practical and immediate guide to those lawyers enmeshed in this area who have clients who want a “quick answer.” In this lawyer’s experience, the request for a quick answer is made by virtually all our private and public clients. For such clients and for one’s own knowledge you should get this book.

Norman A. Dupont is a partner at Ring Bender LLP, where he practices primarily in environmental law. Norm is the current chair of SEER’s Publications Service Group. As a law student, he helped advise then Congressman Robert F. Drinan, who was involved in hearings on what became the 1978 Bankruptcy Reform Act, an act which started the modern era of bankruptcy law.