Episode: Jennifer Novak on Representing the Environment in Court
June 20th, 2023
Read the Transcript Below
Introduction
Jeff Lewis:
Welcome to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news from the California Court of Appeal and the California Supreme Court. Now, your hosts, Tim Kowal and Jeff Lewis.
Tim Kowal:
Welcome, everyone. I’m Jeff Lewis, and I’m Tim Kowal. Both Jeff and I are certified appellate specialists and uncertified podcast hosts. We try to bring our audience of trial and appellate attorneys legal news and perspectives they can use in their practice. If you find this podcast helpful, we’re always grateful if you’d recommend it to a colleague. If you find it unhelpful, send it to your opposing counsel.
Before we jump into this week’s discussion, we want to thank CaseText for sponsoring our podcast. Please text "LEGAL" to learn more. CaseText has developed AI-backed tools to help lawyers practice more efficiently since 2013. CaseText is relied on by 10,000 firms nationwide, from solo practitioners to AmLaw 200 firms and in-house legal departments. In March 2023, CaseText launched CoCounsel, the first AI legal assistant. CoCounsel produces results lawyers can rely on for professional use while maintaining security and privacy. Listeners to the podcast enjoy a special discount on CaseText basic research at CaseText.com/HELP (that’s CaseText.com/CALP). Another benefit of CaseText? It doesn’t generate fake cases—an increasing value as news of ChatGPT’s fabrications spreads.
Guest Introduction: Jennifer Novak
Tim Kowal:
Jeff, I’m excited today because we have the opportunity to welcome Jennifer Novak to the show.
Jeff Lewis:
At age 15, Jennifer Novak decided she had two goals: to be a lawyer and to be alone—both of which she proudly achieved. She is a second-generation California female attorney who has practiced litigation across a broad spectrum of fields since 1996. As a deputy attorney general with the California Department of Justice, Jennifer handled cutting-edge legal issues in matters valued in the hundreds of millions and billions of dollars on behalf of the people of California. Now back in the private sector, she founded her law firm to serve people who understand the importance of environmental laws and want to keep the regulatory process fair for those who take compliance seriously. Based on her experience representing clients ranging from Fortune 500 companies to retirees who operated manufacturing businesses decades ago, she understands the stress and uncertainty that a threatened or actual lawsuit brings.
Jennifer, welcome to the podcast!
Jennifer Novak:
Thank you! I’m so excited to be here.
Jeff Lewis:
We’re happy to have you. Later in the show, we’ll discuss what prompted this interview—the recent Supreme Court decision in Sackett v. EPA. But first, let’s get to know more about you. Was there anything in the bio I read that didn’t reveal everything about you?
Jennifer Novak:
Well, there’s a lot about me that isn’t in one bio, Jeff. But I think you’ll get a sense of who I am and what I’m passionate about as we go.
Jennifer’s Practice & Background
Jeff Lewis:
Tell us about your primary practice area.
Jennifer Novak:
I’m an environmental lawyer. My tagline is: When businesses and property owners are accused of polluting, we clean up the legal mess. But that’s a little simplistic. We work for both environmental groups and the regulated community. Our talent is translating complicated regulations into something understandable that applies to people’s day-to-day lives.
Tim Kowal:
Do you deal with these issues in state or federal court?
Jennifer Novak:
They tend to arise mainly in federal court, but sometimes in state court—especially when I worked for the government and agencies got sued.
Jeff Lewis:
How did your experience as a deputy AG help in private practice?
Jennifer Novak:
Working for the DOJ, I learned how to "speak government." Agencies are experts in their field, constantly balancing enforcement with practicality. Environmental groups would attack us for not going far enough; businesses would attack us for overregulation. Now, I translate government concerns into real-world advice.
Tim Kowal:
Do you prefer state or federal court?
Jennifer Novak:
I prefer federal court because judges take more time to understand the issues. But state court judges are more teachable—they give you more face time to explain jargon and science.
Legal Writing & Briefing Tips
Jeff Lewis:
Any legal writing tips?
Jennifer Novak:
Tim Kowal:
What’s a mistake you’ve seen opponents make?
Jennifer Novak:
Not recognizing that litigation takes time. You can’t just wave a wand and get a ruling because you think you’re right.
Sackett v. EPA Discussion
Jeff Lewis:
Let’s dive into Sackett v. EPA. What was the issue?
Jennifer Novak:
The case asked: Which waters are protected under the Clean Water Act? The Sacketts bought land in Idaho, filled it to build a house, and the EPA stopped them, claiming their property drained into a federally protected lake. The Court rejected the EPA’s "significant nexus" test (which let them regulate loosely connected waters) and replaced it with a "continuous surface connection" test—meaning wetlands must be directly connected to navigable waters to be regulated.
Tim Kowal:
Why did the Court take this case?
Jennifer Novak:
The Court has repeatedly pushed back against expansive federal environmental regulation (e.g., the Migratory Bird Rule). Here, they feared the EPA’s test would let them regulate everything.
Jeff Lewis:
How does this impact California?
Jennifer Novak:
California already has strong state laws, but citizen suits under the Clean Water Act may shrink, reducing enforcement. The state might step in with its own rules.
Lightning Round
Jennifer’s Bonus Tip:
Never skip oral argument—it’s malpractice! Courts need to test arguments, and you need to answer their questions.
Closing & Sponsor Shoutout
Jeff Lewis:
Thanks again to CaseText for sponsoring. Listeners get a discount at CaseText.com/CALP.
Tim Kowal:
If you have suggestions or water puns, email us at info@calpodcast.com. Next episode: how to lay groundwork for appeals during trial.
Jennifer Novak:
Thank you!
Jeff Lewis:
You’ve just listened to the California Appellate Podcast. For more, visit calpodcast.com. Thanks to Jonathan Karl for our intro music. Join us next time!