Mr. Brady, who teaches Hazardous Waste Law in the Environmental and Natural Resources Law & Policy (ENRL) Program, will discuss "Waste and Soils: U.S. Legal Cases and Insurance Precedants." Mr. Brady has been assisted in preparing his remarks by geophysicist Pierre Andrieux, Professor Emeritus at the Universite Pierre et Marie Curie, Paris VI. Professor Brady is also a member of the Intersol Committee Scientifique, assisting in the selection of the conference program each year. He has been a frequent contributor to the annual Intersol Conference since 2008.
Early last year, before the BP Gulf Oil disaster, and this year's major property and casualty and business interuption losses from the Australian floods, the New Zealand earthquake and the Japanese trifecta of earthquake-tsunami-nuclear power catastrophes, Professor Brady wrote:
"The looming specter of coming environmental catastrophes presents a 'worldwide financial crisis' of never-before-imagined proportions. Yet, poorly understood concepts of risk transfer cloud the future. Over the past two decades, an explosion in lawsuits concerning past environmental, natural resources damages and government-mandated remediation has erupted in the developed world. Disputes commonly arise when contaminate releases occur at industrial complexes and seaports, municipal owned or operated landfills and airports, active or closed military installations or weapons facilities, nuclear power plants and other hazardous/toxic waste sites. Corporate policyholders continue to scurry to secure insurance coverage for potentially staggering liabilities, not knowing whether their insurers and retrocessionaires will be capable of performing as promised.Environmental insurance has been a crucial tool in remediating contaminated properties, hazardous waste sites, and polluted groundwater, as well as assuring compliance with US and EU environmental laws and administrative regulations. As case law interpreting policies of insurance sold in the US and the EU has evolved, billions of dollars for environmental liabilities has been made available to policyholders, many of whom initially believed that they may have had no coverage. In many cases, older policies have provided more extensive coverage for environmental releases than later issued policies. Lost and missing policies have been reconstructed from standard forms and other secondary evidence of insurance found in financial records, document repositories and archives, and accepted by judicial fiat. Consideration of the statements of former policyholder employees (many of whom are elderly but whose recollections are clear), insurance brokers and insurance company personnel has also served as a basis for reproducing evidence of insurance.
The cost of cleaning up toxic waste at more than 60,000 disposal sites in the US may run as high as $500 billion, and worldwide remediation could run into the trillions, leading policyholders and insurers to adopt a 'scorched earth' litigation posture. In many jurisdictions, courts are venturing into unchartered areas of insurance coverage, knowing that the stakes for both policyholder and insurer are high. The very survival of insurers, public and private companies and, in some instances, entire communities, is threatened by staggering response costs designed to achieve a safe and clean environment.
Across the Atlantic, The Trans-European Transport Network Executive Agency (TEN-TEA) is charged with the responsibility of providing technical and administrative support in collaboration with the Directorate-General Energy and Transport of the European Commission. Among other things, this EC Agency ensures the technical and financial management of public works and highway projects co-financed under the trans-European transport networks’ budget. As well, TEN-TEA requires the conformity of projects co-financed by the Community with the transport policy rules and principles applicable to the trans-European network infrastructures. Development requires compatibility, interconnection and interoperability of previously diverse national networks. Future infrastructure development, and meeting the risks posed by its attendant exposures, presents even greater financial and insurance challenges.
The questions to be answered in a troubled world are patent:
Is there enough current capacity in the global insurance market to cover these risks?
Should governments in the developed world assume a lead role in creating multi-national, public-private partnership, insurance pools to meet the financial crises posed by future eco-terrorism or environmental catastrophe?
Can and should funding be appropriated from the imposition of a worldwide carbon tax to meet this challenge?"
New tools will also be in focus, such as Environmental Impairment Liability, Pollution Legal Liability, Cost Cap Coverage Insurance and Insurance/Risk Pooling, now widely available in the marketplace to protect against future catastrophic environmental liabilities. This program will also explain how insurance coverage, under both older policies and more recent vintages, can assist with legal, technical and financial requirements of the EU TEN-TEA Agency. The understanding of what coverages are available, how the judicial system and the insurance industry are interpreting them, and their use in the development of US and EU public works projects is vital for those encountering our past and future challenges.
Don Smith, Director of the ENRL program, said, "Intersol'2011's invitation to Bill Brady indicates the high regard in which he is held not only in the U.S. but also in Europe and internationally. Mr. Brady has secured several multi-million dollar insurance verdicts, both after trial and on appeal, and settlements for international mining companies and U.S. municipalities. Students in Mr. Brady's course benefit from an individual who is widely respected as one of the top attorneys in his field."