Practice/Industry Group Overview
Our full-service, multi-disciplinary Environmental practice represents Fortune 50 corporations and individuals alike. We litigate cases in state and federal trial courts across the United States and offer universally acclaimed appellate capabilities. We also provide counsel on regulatory compliance, enforcement defense, disputes, and transactions, and advise clients on cutting-edge issues such as climate change. Because environmental issues often transcend national borders, we offer assistance throughout the Americas, Europe and Asia.
Our recognition in the field is extensive. Most recently, Mayer Brown was honored by Law360 as one of only five firms to be awarded “Environmental Practice Group of the Year.” Additionally, in 2011, we were recognized by Chambers USA and Legal 500 US as a top environmental practice, with Chambers USA noting that our attorneys are “[r]esponsive, sophisticated practitioners who understand both the nuances of environmental law and also how the real world operates” while Legal 500 says we “are truly national in scope and can represent [clients] anywhere,” and have “both depth and breadth” and “a consistent track record of providing high quality representation.” Similarly, U.S. News & World Report ranked Mayer Brown’s national environmental practice as Tier 1 in its 2011-2012 guide to the Best Law Firms.
We represent clients in high-stakes matters such as emerging torts relating to greenhouse gas emissions, site-based mass tort claims, issues of first impression under the Clean Water Act, challenges to US EPA regulations under the Clean air Act, criminal environmental prosecutions, renewable energy projects including wind and solar facilities that involve complicated permitting and regulatory requirements, and complex environmental cleanup projects involving the application of cutting edge remediation technologies. Our team includes some of the most distinguished environmental lawyers in the country.
We have extensive experience in the following areas of Environmental law:
Litigation and Enforcement
No matter the court or forum, Mayer Brown is renowned for protecting our environmental clients’ interests. We have represented clients in trial and appellate courts throughout the United States, Europe and Asia, and before domestic and international alternative dispute resolution forums. Our litigation approach combines aggressive representation at trial, effective argument on appeal and skilled negotiation to achieve competitive goals. The same skills enable us to represent clients effectively in contested hearings for air, water and waste permits, as well as in U.S. EPA enforcement and rulemaking proceedings. The breadth of our environmental litigation experience includes challenges to agency rulemakings and administrative decisions, government enforcement actions, private litigation over the cleanup of historic waste sites, and toxic tort litigation claiming personal injuries and property damages caused by alleged exposure to contamination, including class actions.
Mayer Brown has a top-ranked Supreme Court & Appellate practice, the largest in the United States. The lawyers in this group are highly experienced at handling environmental cases in the US Supreme Court and the federal circuit courts, as well as in state appellate courts. The volume of our environmental-related appellate experience means great efficiency and effectiveness for our clients at every level of the appellate process.
Unlike many of our peer firms, which use general litigators for environmental work, Mayer Brown has dedicated environmental litigators who work almost exclusively on environmental cases, leading to a greater technical understanding of the law and issues involved in these cases, and to a significantly reduced learning curve that results in an increased efficiency for our clients. Our litigators are experienced with handling important cases in venues that are among the most hostile to defendants in the United States, such as Madison County, Illinois; Baltimore, Maryland; Philadelphia, Pennsylvania; Brazoria County, Texas; and throughout West Virginia and California.
Our attorneys are well known for “legendary toxic tort defense work.” (Chambers USA). We also draw on our network of many of the world’s leading experts in fields relevant to environmental law, including geologists, hydrologists, toxicologists, pathologists, microbiologists and engineers in order to better identify and attack “junk science” claims to counter plaintiffs who seek to take advantage of gaps in the scientific literature.
Regulatory Challenges, Compliance, Permitting and Counseling
Our environmental lawyers are experienced in all aspects of environmental regulatory challenges, compliance, permitting and enforcement counseling. We regularly work with clients to obtain and revise environmental permits and to comply with the Clean Air Act (including Title V permits), the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Toxic Substances Control Act, and other environmental statutes. Our lawyers have successfully handled many permit appeals and challenges to agency actions.
We have the necessary skills to handle the most complex regulatory regimes. Clients with Clean Water Act concerns rely on our guidance concerning standards for national pollutant and discharge elimination (NPDES), wetlands and storm water permitting, and total maximum daily loads appeals and enforcement. Similarly, we represent clients who may be potentially responsible parties, whether the lone, primary or de minimis, at significant hazardous waste sites. Our work includes all aspects of CERCLA enforcement (requests for information, access and investigation), cost recovery, contribution (statutory and contractual) and redevelopment.
Forward-looking environmental counseling is an important part of our work. Mayer Brown lawyers have been actively involved in the development and amendment of key state and federal regulatory programs. We also work closely with clients to plan for and minimize the many environmental permitting and regulatory compliance issues that may be triggered under the National Environmental Policy Act (NEPA) by new construction or operational changes at manufacturing and utility facilities and infrastructure and transportation projects.
We help clients prepare for the evolving regulatory framework as concerns over global warming spur carbon emissions control at the federal and state levels. Our team works with clients to develop policies on the legal aspects of climate change, including emissions trading, climate change levy agreements and compliance with greenhouse gas permits within the European Union and other jurisdictions.
Our attorneys prevent environmental liability issues from becoming major concerns when assets, real estate, businesses or companies are bought or sold. We advise on hundreds of deals annually, performing environmental due diligence on both domestic and international transactions, including mergers, acquisitions, lending, and financing ventures that raise environmental concerns.
We identify potential environmental liabilities in corporate transactions, then structure and document the transactions in a way that protects our clients while ensuring completion of the deal. In real estate transactions, our lawyers work with environmental consultants, review Phase I and Phase II reports on prior or current contamination from operations, negotiate the environmental portion of the deal and help secure environmental insurance. For brownfield sites, our lawyers help evaluate the nature and extent of the contamination, estimate the cost of remediation and define the potential return if remediated. If the project proceeds, we coordinate with developers, environmental consultants, lenders, insurance providers, regulatory agencies and other legal counsel to create a legal strategy that provides the greatest return and protection. This often involves assisting the client on environmental site investigations and cleanups to obtain No Further Remediation or other similar “all clear” letters from state regulatory agencies.
Grand Island Groundwater Litigation
We represent Cargill with respect to a CERCLA site in Grand Island, Nebraska involving soil and groundwater contaminated with chlorinated solvents. U.S. EPA listed the site on the National Priorities List under CERCLA and initiated remedial action. Working with a team of experts, we commented on the proposed remedial action and defended the company against claims by approximately 300 residents who alleged extensive personal injuries and property damages. Plaintiffs alleged that the majority of the solvents originated from a former Cargill facility. Plaintiffs’ counsel used Erin Brockovich extensively to recruit clients and obtain favorable local publicity. After extensive expert work, including additional investigation in the field and carefully targeted fact discovery, we prevailed on summary judgment on grounds that Cargill did not cause the contamination and did not have a duty to investigate the property to discover subterranean contamination. Avila v. CNH America LLC, 2009 WL 151600 (D. Neb. 2009), reconsideration denied, 2009 WL 666386 (D. Neb. 2009). In addition, we used the summary judgment to establish that there was insufficient evidence for EPA to identify Cargill as a PRP for the site.
Penobscot River Litigation
For a decade, we have been lead counsel in multi-party litigation over sediment contamination in the Penobscot River in Maine. City of Bangor v. Citizens Communications Company, et al., No. 02-cv-00183 (U.S. Dist. Ct. Maine, filed 2002). The litigation was initiated by the City of Bangor against our client, Frontier Communications Corp., f/k/a Citizens Utilities Co. The City sought to hold Frontier solely responsible for cleanup costs of over $100 million and for punitive damages of over $50 million due to polycyclic aromatic hydrocarbon (PAH) contamination allegedly discharged from a manufactured gas plant that began operations in 1851. The dispute presented complex issues of causation and involved a score of third and fourth-party defendants who had operated along the waterfront. Following extensive discovery and a three-week trial, we negotiated a settlement that allowed Frontier to limit its cleanup costs to $7.625 million, while requiring the City to conduct all cleanup and to indemnify Frontier without limitation. The settlement, embodied in a consent decree with the State of Maine, also allowed Frontier to recoup its costs from third parties, who challenged the arrangement as unreasonably favorable to Frontier. The U.S. Court of Appeals for the First Circuit unanimously approved the settlement. City of Bangor v. Citizens Communications Co., 532 F.3d 70 (1st Cir. 2008). Frontier subsequently has recovered almost all of its cleanup costs through third party settlements, and the litigation is substantially complete.
Manufactured Gas Plants – Environmental Investigation, Remediation, and Litigation
We represent a major gas distribution company in the process of investigating and remediating its historic manufactured gas plant (MGP) sites and defending the significant litigation that has arisen at a number of sites. Thousands of MGPs were built nationwide in the late 19th and early 20th centuries to supply manufactured gas – made from liquefying coal - to nearby communities to use for light and heat. These facilities became outmoded by approximately 1945 with the advent of relatively inexpensive natural gas supplied via interstate pipelines. When the facilities were closed, the liquid tar byproduct (“coal tar”) and other chemicals were often left behind, typically in underground storage facilities. MGPs often involve remedial costs exceeding $50 million; in some cases, over $200 million, and include difficult issues involving rivers and river sediments, fractured bedrock, and related air emissions and risk assessments. We have represented the company in associated litigation, including more than a dozen cases involving statutory claims under CERCLA and RCRA as well as class action and individual tort claims by neighboring residents alleging personal injuries and property damages caused by exposure to MGP contaminants. In litigation, we have achieved victories via motion practice to position the cases for favorable settlement, while also resolving favorably various investigations initiated by government agencies.
Challenge to U.S. EPA 104(e) Order for Access
Using its authority under CERCLA Section 104(e), the U.S. EPA sought to enter private property to conduct a CERCLA removal action. On behalf of the property owner, we brought an action challenging the 104(e) order. At trial, our team defeated EPA and the U.S. Department of Justice. The win was affirmed on appeal to the 7th Circuit. The victory achieved was so decisive that the trial court subsequently required the U.S. government to pay Mayer Brown’s attorneys’ fees under the Equal Access to Justice Act. This case is the first recorded instance of EPA losing a demand for access under CERCLA Section 104(e). U.S. v. Tarkowski, 248 F.3d 596 (7th Cir. 2001); U.S. v. Tarkowski, 2002 WL 460831 (N.D. Ill. 2002).
Actions for Damages and Injunctive Relief Against Greenhouse Gas Emitters
In Comer v. Murphy Oil Co., plaintiffs – Mississippi property owners harmed by Hurricane Katrina – sued oil, coal power, and chemical companies for public nuisance, alleging that the defendants’ emissions of greenhouse gases caused the oceans to warm, which caused Hurricane Katrina to be stronger than otherwise would have been the case, which increased the damage the hurricane caused to plaintiffs’ properties. The District Court dismissed the suit on grounds that it presented a non-justiciable political question and that plaintiffs lacked standing to pursue the claims, but a Fifth Circuit panel reversed. After we persuaded the Fifth Circuit to rehear the case en banc the en banc Court lost its quorum to decide the case due to a recusal, leaving the favorable District Court decision controlling. Plaintiffs then filed a petition for mandamus in the U.S. Supreme Court seeking to reinstate the panel decision instead. We persuaded the Supreme Court to deny mandamus, leaving the District Court decision dismissing the suit as the controlling law of the case. After the plaintiffs refiled their claims, we obtained dismissal of their suit on res judicata and other grounds.
CERCLA Cost Recovery Action
We recently represented Lafarge North America in a cost recovery action brought by the City of Waukegan, Illinois seeking past and future cleanup costs associated with PCB contamination in Lake Michigan’s Waukegan Harbor. Litigation related to the site had taken place for decades before the city filed suit against industrial harbor tenants. The City sought to recover for past response costs it claimed to have incurred, and obtain a declaratory judgment regarding what it claimed were more than $30 million in future response costs. The litigation involved cutting edge issues related to: (a) the statutory definition of “operator”; (b) the applicable statute of limitations; (c) whether past or future costs were necessary or consistent with the National Contingency Plan; (d) the availability of a cost recovery versus contribution; (e) authorization for remedial actions; (f) the applicability of federal and windfall liens; (g) divisibility of harm; and (h) the availability of declaratory relief. After discrediting the merits of plaintiff’s claims, our client settled with the City at nuisance value.
Food Flavorings Litigation Across the U.S. and in U.S. Bankruptcy Court
For six years we served as national counsel for Chemtura in cases involving alleged injuries caused by exposure to food flavorings, particularly diacetyl, overseeing fact development, motion practice, and trial preparation for numerous cases across the United States. The litigation started when employees of certain food manufacturing companies began bringing lawsuits alleging that exposure to certain food flavorings, and particularly certain chemicals commonly used in butter flavorings, had caused them severe lung damage, often requiring lung transplants. Initial lawsuits resulted in significant verdicts ($15 - $25 million per plaintiff) against several large manufacturers of butter flavorings. In cases that proceeded close to trial, Mayer Brown won dismissal or summary judgment on behalf of Chemtura or settled for noticeably smaller amounts than similarly-situated companies. In March 2009, Chemtura filed for Chapter 11 bankruptcy for unrelated reasons. Mayer Brown suggested a strategy to centralize in federal court, through the bankruptcy process, all of the food flavorings claims against Chemtura, its Canadian subsidiary (which was not included in the bankruptcy filing), and an unrelated third party company which acted as Chemtura’s exclusive U.S. distributor of diacetyl. After extensive litigation, the strategy succeeded. The victory was significant in part because the consolidation enabled litigation of key issues – particularly scientific causation, but also various other key defenses – in federal court as opposed to state court, with the federal courts applying much more defense-friendly standards and generally more equitable procedures than are available in most state courts. That consolidation gave Chemtura the leverage to settle virtually all of the approximately 375 diacetyl-related claims that were filed against it via the bankruptcy claims process.
Contamination of Public Water Supplies by Herbicide
We represent Dow Agrosciences in Holiday Shores Sanitary District v. DowAgrosSciences, LLC, a class action pending in Madison County, Illinois, in which the plaintiffs allege that a common herbicide, atrazine, has contaminated dozens of community water supplies. This litigation involves cutting edge science regarding toxicity endocrine disruption, and also involves complex expert investigation regarding the fate and transport of alleged contaminants as they relate to both product identification and alleged causation. Issues related to atrazine, and the U.S. EPA’s decision to conduct multiple scientific advisory panel hearings regarding the compound, have been covered by the New York Times, Wall Street Journal and other national media outlets.
Interstate Water Dispute
We have filed a certiorari petition in Tarrant Regional Water District v. Hermann, No. 11-889 (U.S.), on behalf of the Texas water district serving Forth Worth. The petition asks the Court to review a Tenth Circuit ruling that upheld Oklahoma laws that improperly burden interstate water transfers and prevent Tarrant obtaining water from Oklahoma that it is entitled to under the terms of the Red River Compact. Tarrant contends that these Oklahoma laws violate the dormant Commerce Clause and are preempted by the congressionally-enacted Compact. In response to our petition, the Supreme Court has asked the United States to file a brief stating its views.
Private Litigation Seeking Damages Allegedly Caused by Contamination from Historic Railroad Operations
We represented BNSF in a number of cases stemming from historic railroad operations. The complaints allege that BNSF contaminated the soil and groundwater in Livingston, damaged the plaintiffs’ properties, and that the plaintiffs are entitled to monetary awards to fund further “restoration” above and beyond the cleanup that BNSF is already implementing subject to oversight from the Montana Department of Environmental Quality. There are over 100 plaintiffs involved in the various suits filed in both state and federal court.
Regulatory Challenges, Compliance, Permitting and Counseling
NPDES Permits Under the Clean Water Act for Stormwater Discharges from Logging Roads
We filed a petition for certiorari asking the U.S. Supreme Court to reverse the Ninth Circuit’s holding in Northwest Environmental Defense Center v. Brown, 2011 WL 1844060 (9th Cir. 2011), that discharges of stormwater from logging roads require National Pollutant Discharge Elimination System (NPDES) permits pursuant to the Clean Water Act (CWA). U.S. EPA had long considered runoff from forest roads to fall outside the scope of the NPDES and thus not to require a permit. The Ninth Circuit – in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to EPA – held that EPA’s interpretation is impermissible. It directed EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. Before the Supreme Court acted on our petition, EPA handed our clients a victory by announcing its intent to promulgate new regulations specifying that forest road discharges are not “associated with industrial activity” and do not require permits.
Challenge to U.S. EPA Regulation of HCFCs
We represented Arkema in Arkema Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010). In that case, Arkema challenged a 2009 U.S. EPA regulation allocating allowances for the production and consumption of HCFCs (which are commonly used as refrigerants). Agreeing with Arkema that the allocation rule was inconsistent with EPA’s past approvals of allowance transfers, and was unlawfully retroactive, the D.C. Circuit issued an opinion vacating the rule “insofar as it operates retroactively” and remanding the case “for prompt resolution.” The government was unsuccessful in obtaining rehearing, and we now are representing Arkema on issues relating to the vacatur.
Clean Water Act Permits for Water Transfers
We represent United States Sugar Corporation in two cases concerning whether Clean Water Act permits are required for water transfers, e.g., pumps and dams, that move navigable water. The entire U.S. water supply system depends on thousands of water transfers, the vast majority of which do not currently require permits under the Clean Water Act. The cost of permitting, and opportunities for litigation that the permit system would introduce, would have enormous adverse effect on public water managers and water users. U.S. Sugar intervened as a defendant in Friends of the Everglades v. South Florida Water Management District, where environmental groups sued the District to require permits for its water transfers. After the Southern District of Florida rendered an adverse decision, we successfully appealed to the Eleventh Circuit. The Supreme Court denied the environmental groups’ petition for certiorari, leaving the successful Eleventh Circuit decision intact. Friends of the Everglades v. South Florida Water Management District, 2006 WL 3635465 (S.D. Fla. 2006), rev’d in part, appeal dismissed in part by 570 F.3d 1210 (11th Cir. 2009), reh’g en banc denied by 605 F.3d 962 (11th Cir. 2010), cert. denied, 131 S. Ct. 643 (2010).
In the second, closely-related matter, Friends of the Everglades v. EPA, a number of environmental groups have challenged EPA’s water transfer rule in the Eleventh Circuit. U.S. Sugar has intervened to oppose those challenges. The case is currently pending in the Eleventh Circuit. Both cases follow from the Supreme Court’s ruling in Miccosukee Tribe v. South Florida Water Management District, 541 U.S. 95 (2004), in which, representing the District, we persuaded the Supreme Court to vacate an adverse Eleventh Circuit ruling that water transfers require NPDES permits.
Challenge to U.S. EPA Regulations for Hazardous Air Pollutants
We represent United States Sugar Corporation in two challenges to regulations issued by the U.S. EPA setting emissions limits under the Clean Air Act for hazardous air pollutants from industrial, commercial, and institutional boilers and process heaters (the “Boiler MACT”). These challenges are a continuation of our representation of U.S. Sugar in the rulemaking process, where we provided extensive comments on the proposed rules. In an unusual step, U.S. EPA specifically invited reconsideration at the time it issued the final regulations, and our first challenge is a petition for agency reconsideration on numerous aspects of the regulations, which is pending. Our second challenge is a petition for review of the regulations pending before the D.C. Circuit Court of Appeals.
Pearl Harbor Dioxin Investigation
We are presently involved in conducting an investigation into dioxin and pesticide contamination at the U.S. Naval Base at Pearl Harbor, Hawaii. Our client had an interest in agricultural operations conducted on Waipio Peninsula back into the late 1800s, before the Naval Base was established at Pearl Harbor. Sediments in Pearl Harbor are heavily contaminated. EPA and the Navy have asserted that our client is responsible for dioxin, pesticide, PAH, and metals contamination alleged to have been discharged from a pentachlorophenol (PCP) pesticide mixing operation conducted on the Peninsula pursuant to a lease from the Navy following World War II. The client is investigating the site pursuant to a Unilateral Administrative Order issued by EPA. At issue are numerous Navy operations conducted at Pearl Harbor during and following World War II, including use of the defoliants 2,4,5-T and 2,4-D.
Challenge to Army Corps Interpretation of “Navigable Water” Under the Clean Water Act
We represented a consortium of Chicago-area cities and villages that sought to develop landfill for baled nonhazardous solid waste on a 533-acre parcel in Illinois. The parcel had been used for sand and gravel mining until about 1960. Since then, the excavation trenches from the mining had evolved into ponds ranging in size from a few feet across to several acres. The U.S. Army Corps of Engineers asserted that the ponds were “navigable waters of the U.S.” because of their use by migratory birds and denied the permit application. The Supreme Court held that Corps’ rule extending definition of “navigable waters” under the Clean Water Act to include intrastate waters used as habitat by migratory birds exceeded the authority granted to the Corps under the Act. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
Regulatory Advice on Remediation and Cost Recovery
We are providing regulatory advice to a leading manufacturer of engineered materials and components for building products with respect to waste remediation obligations and its ability to recover the costs through contractual indemnification.
Regulatory and Legislative Strategy
We are assisting a diversified chemicals manufacturer to develop legislative and regulatory strategies relating to federal emissions programs.
We represented Caterpillar in conducting environmental due diligence with respect to its acquisition of Bucyrus, a manufacturer of mining equipment which owns or operates over 150 separate facilities worldwide. This was a deal which overall is valued at $7.6 billion and for which the due diligence had to be conducted, world-wide, on an extremely expedited basis.
We represented Nestle in its $11.9 billion acquisition of Pfizer’s infant nutrition business, in one of the largest acquisitions of 2012. As part of the representation, Mayer Brown advised Nestle in environmental due diligence and negotiation with respect to manufacturing facilities located in The People’s Republic of China; The Republic of Ireland; The United Mexican States; The Republic of the Philippines; and The Republic of Singapore.
We represented an international agribusiness client on a number of acquisitions involving the flower and seed businesses. Environmental aspects involved due diligence to establish prospective purchaser and other liability protections, including the retention of environmental consultants, review of Phase I and site visit reports, quantification of potential environmental liabilities, and negotiation of scope of work for Phase II sampling and access agreements; advice on the transferability of permits; and negotiation of deal terms allocating responsibility for known and unknown environmental conditions and mechanisms for post-closing environmental risk management such as cost-sharing agreements and escrows.
We represent United States Steel Corporation with respect to the redevelopment of its former 537-acre steel manufacturing operations at the Chicago South Works Site. We have assisted United States Steel Corporation in obtaining three No Further Remediation Letters and in obtaining a key environmental insurance policy to facilitate the redevelopment of the site. The project is ongoing, and we continue to work closely with U.S. Steel and the redevelopment group. This site represents the largest brownfield site in the City of Chicago, and its redevelopment will turn the currently shuttered facility into a new and productive neighborhood along the shore of Lake Michigan on Chicago’s Southside.
Merger & Acquisition, Environmental Investigation, and Post-Closing Remediation
We represent a leading North American metal distributor and processor in its acquisition and merger of a steel company, including the identification and management of environmental liabilities. The transaction included the creation of an extensive process to address environmental liabilities post-closing for seven manufacturing facilities. We also represent the client with respect to post-acquisition investigation and remediation of other metal manufacturing and processing facilities.
Sale of Company, Environmental Investigation, and Cost Recovery Litigation
We represented a venture capital fund in connection with the sale of a company, which included environmental due diligence that identified chlorinated solvent contamination at the operating property caused by an historic property owner. On behalf of the client, we brought suit against the historic owner under CERCLA and state law, winning summary judgment on all major issues followed by a favorable overall settlement that included the historic owner accepting responsibility for the site cleanup and the award of attorneys’ fees. We also represented the client in connection with its contractual obligations to the property purchaser, including enrolling the site in the state voluntary cleanup program and providing for ongoing financial assurance. Spectrum International Holdings, Inc. v. Universal Cooperatives, Inc., 2006 WL 2033377 (D. Minn. 2006).
- Arkema, Inc.
- Chemtura Corporation
- Dow Chemical Company
- United States Steel Corporation
- United States Sugar Corporation