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Practice/Industry Group Overview
In this era of heightened state and federal regulatory scrutiny, the issues affecting environmental, energy and utility law are more intrusive and complex than ever. With more than 35 experienced attorneys in offices throughout the Mid-Atlantic region, Saul Ewing’s Environment, Energy and Utilities Department is composed of professionals whose knowledge and experience encompass the full breadth of these sensitive and crucial areas of our economy. Our lawyers serve clients in Delaware, Maryland, New Jersey, New York, and the District of Columbia, regularly appearing before local, state and federal regulatory agencies and courts.
Our attorneys advise clients on how to comply with increasingly strict and complex economic and environmental regulations, defend (and occasionally challenge) administrative decisions and lead successful company or industry challenges to agency actions that exceed legal authority or scientific justification. Our energy attorneys provide counsel and representation on energy (electricity, natural gas, LNG, steam, and hot and chilled water) water, wastewater, telecommunications and transportation issues. We have one of the most experienced utility rate and regulatory practices in the region, and we also assist clients with the development of new projects and the acquisition and divestiture of existing facilities.
Strong Connections and Valuable Experience
The Department is comprised of attorneys who have served in-house and in public service positions, gaining valuable local, state and federal experience and contacts. Our attorneys have held the following positions:
- Member of President Obama's Energy and Environmental Policy Committee during campaign
- Chairman of the Pennsylvania Public Utility Commission
- Commissioner of Maryland’s Public Service Commission
- Commissioner and Chair of the Delaware River Basin Commission
- Assistant Commissioner of the New Jersey Department of Environmental Protection
- Assistant Commissioner of the New Jersey Department of Energy
- Director of the EPA's criminal enforcement program
- President of the Mid-Atlantic Conference of Regulatory Utilities Commissioners
- President of the Organization of PJM States
- Treasurer of the National Association of Regulatory Utility Commissioners
- Secretary to the Executive Committee of the Northeast Power Coordinating Council
- Chair of the New York Bar Association Committee on Public Utility Law
- Chair of the New Jersey Bar Association's Public Utility Law Section
- Senior Climate Change Policy Advisor for the British Legation to the United States
- Chair of the New Jersey Water Supply Authority
- Chair of the New Jersey Clean Water Council
- Assistant Attorney General and Assistant Counsel to the Pennsylvania Department of Environmental Resources (now the Department of Environmental Protection)
- Senior Executive and General Counsel of a New York Water Utility
- Vice-Chair of the New Jersey Water Supply Authority
- Associate General Counsel at one of the largest energy delivery companies in the Mid-Atlantic region
- In-house counsel for rate matters for American Electric Power Service Corporation
Within our Mid-Atlantic footprint, Saul Ewing attorneys provide clients with a unique combination of state and local knowledge, experience and relationships and extensive complex regulatory, transactional and litigation experience. Our team includes the Environment and Natural Resources Practice Group and the Energy and Utilities Practice Group.
Industries Served
- Chemical
- E-Commerce
- Education
- Electricity distribution
- Electricity generation
- Financial services
- Food
- Gas and petroleum exploration, refining, distribution and marketing
- Government
- Healthcare
- Insurance
- Manufacturing
- Mining
- Natural gas distribution
- Pharmaceutical
- Railroad
- Real estate
- Solid Waste Management Services
- Telecommunications
- Water supply
Clients Served
- Aggregate and sand mining produces
- Coal companies
- Electric and gas utilities
- Electricity generators and project developers
- Fortune 500 corporations
- Governmental entities
- Independent natural gas producers
- Industry associations
- Natural gas processors and distributors
- Natural gas storage developers
- Pipeline companies
- Refineries and retailers
- Specialty mineral companies
- Telecommunications providers
- Water utilities
Why Saul Ewing?
- Saul Ewing combines superb local experience and knowledge, with legal professionals who have enjoyed national recognition for the quality of their work. In addition, our flexible rate structures reflect regional standards, and is likely to be well below firms whose focus extends beyond the Mid-Atlantic.
- Saul Ewing is a full service law firm, able to provide clients additional services, including corporate and financial counseling and assistance on joint ventures, mergers and acquisitions, construction projects, taxes, bankruptcy, financial security, labor and employment, corporate governance, insurance and risk management.
- Our environmental and energy attorneys are well-schooled in navigating the federal, state and local regulatory and permitting processes and represent clients in enforcement and utility rate proceedings, natural resource owners in regulatory takings cases, and in the purchasing and selling of mineral rights, and the acquisition, sale or siting of energy facilities.
- Saul Ewing has strong government affairs practices in Pennsylvania, Maryland and New Jersey, as well as strategic relationships with CHH Partners, LLC., an independent lobbying entity in Pennsylvania, and Harris Jones & Malone LLC, a Maryland-based lobbying firm. We provide clients with the latest legislative information involving energy development, public policy, regulatory and permitting compliance and governmental issues.
- The Firm's pre-eminent litigation practice has significant experience in contract, environmental, condemnation, title, real estate, bankruptcy, and commercial disputes that can and do arise in the energy/utility industries.
- Attorneys in our oil field services practice counsel a number of the nation's largest petrochemical, oil corporations, oil and pipeline companies and public utilities in litigation matters, government relations, government contracts, and administrative appeals.
Representative Matters
- In May 2009, members of Saul Ewing's Environment and Natural Resources Practice Group, working with lead counsel at Simpson Thacher & Bartlett LLP, provided environmental due diligence to global private equity firm Kohlberg Kravis Roberts & Co. (KKR) as it considered investing $350 million in East Resources, Inc., one of the biggest players in the exploration and development of the Marcellus Shale.
Joel R. Burcat, Chair of the Environment and Natural Resources Practice Group, and George Asimos, David J. Raphael and Emily Damron, Partner, Special Counsel and Associate, respectively, in the group, conducted the due diligence. The Marcellus Shale is a rock formation that underlies much of Pennsylvania and portions of New York, Maryland and West Virginia and is believed to hold trillions of cubic feet of natural gas.
In June 2009, as widely reported in the media, KKR closed on its $350 million investment in East Resources. Saul Ewing's Environment and Natural Resources Practice Group continues to actively follow regulatory developments, on the municipal, state and federal levels, that affect the Marcellus Shale.
- Saul Ewing attorneys litigated with the Commonwealth of Pennsylvania an extremely significant regulatory takings case relating to the taking of the clients' mineral rights. The case involved a week long trial – the first of its kind ever held in Commonwealth Court. After the trial and multiple appeals to the Pennsylvania and U.S. Supreme Courts, the Commonwealth settled the case.
- Saul Ewing negotiated an agreement under the 1995 Land Recycling and Environmental Remediation Standards Act (Act 2) on behalf of our client, the Philadelphia Shipyard Development Corporation (PSDC). The transaction involved 100 acres of the Philadelphia Navy Yard. The U.S. Navy will undertake any necessary future cleanup attributable to historic activities at the site under both Superfund and the Base Closure statutes, and the agreement protects PSDC, its tenant and prospective purchasers from liability, under state law, that might arise from ownership.
- Our attorneys successfully negotiated a settlement of CERCLA, New Jersey Spill Act, and New Jersey Solid Waste Management Act claims arising from a former industrial waste landfill in Northern New Jersey. In this high-profile Superfund cost-recovery case, our client was targeted by all of the other parties as the lead responsible party and faced significant liability. We secured a favorable settlement for the client in terms of dollars and the ability to manage-down future cleanup liability.
- Prior to passage of Pennsylvania's Act 2, Saul Ewing represented the buyer developer of a 100-acre former airfield and manufacturing site near Harrisburg, Pennsylvania, a site within the Middletown Airfield Superfund Site. Saul Ewing attorneys negotiated agreements with the Pennsylvania and United States Departments of Environmental Protection to address responsibility for cleanup and future liability, pursuant to which remediation and future monitoring obligations fell on the seller. The attorneys also obtained for the client assignable covenants not to sue from both Pennsylvania and the United States. The client then successfully expanded, developed, leased, operated, and ultimately sold, its approximately 1,500,000 square foot industrial warehouse business park, which had been removed from the Superfund list during its period of ownership.
- An attorney in the Environment, Energy and Utilities Department in February 2007 successfully represented a York County developer in a case before Pennsylvania's Environmental Hearing Board (EHB). EHB dismissed a consolidated appeal that challenged an exemption granted to Saul Ewing's client, the developers, to proceed with plans to build residential lots in Shrewsbury Township, PA. The appellants, residents of Shrewsbury Township, claimed the Pennsylvania Department of Environmental Protection (DEP) erred in granting the exemption saying the lot size was too small for the state requirements of allowable nitrate contamination in groundwater. The developers increased the lot size to 1.5 acres, which met with the DEP approval.
In reviewing the consolidated appeal, the EHB found that all regulatory prerequisites for the exemption were met and that the appellants did not prove the project would be deleterious to the public health or the environment. Click here to read the EHB decision. The development is underway.
- Our Environmental lawyers negotiated an option for a regulated client for development of a multibillion dollar waste disposal facility. The landowner required client assistance in securing highly controversial tax abatement status for abutting property before three public bodies under pressing time constraints. We achieved results within 90 days, enabling the client to pursue land use approvals for option property on a schedule conducive to client objectives.
- Saul Ewing represented the seller of a 40-acre site in Pennsylvania, with pockets of subsurface contamination from 50 years of steelmaking activity. Working under Pennsylvania's Act 2, Hazardous Sites Cleanup Act and other statutes, Saul Ewing attorneys negotiated a detailed and extensive agreement of sale, as well as an environmental agreement with the buyer to protect our client from potential future liability. The Brownfields Practice Group also negotiated a consent order and agreement with the Pennsylvania Department of Environmental Protection, which resulted in a commitment by the buyer to perform remediation at the site, which will be the site of commercial and residential development.
- Saul Ewing represented a large national retail chain that sought to build a 60,000-square-foot supermarket on a seven-acre parcel in Mercer County, NJ. A factory formerly on the site was razed in the 1960s, but soil and groundwater contamination remained—primarily metals and hydrocarbons. Saul Ewing attorneys helped the client negotiate the regulatory maze, apply for a redevelopment agreement, and apply for taxpayer relief from the state as reimbursement for its cleanup efforts.
- Our Environmental and Litigation attorneys won a $2.1 million remediation judgment for a residential village against the world's leading petroleum group. Using expert testimony, we proved contaminant dumping occurred more than 60 years ago.
The luxury residential village, located just minutes from Lower Manhattan in Northern New Jersey, was built on the site of a refinery that had operated from the late 1800s to the 1930s. The group representing the residential development sought out-of-pocket remediation costs from the petroleum group, the successor to the old refinery. No direct testimony from refinery employees was available, nor were records of the waste pit where the dumping took place. Instead, Saul Ewing Environmental and Litigation attorneys relied on the testimony of several experts. An industrial historian identified wooden barrel remnants, a work boot, and terra cotta pipes and tiles found in the pit as being representative of refinery operations in that era; another expert testified that aerial photographs showed dirt roads led to the waste pit, and access to the roads was controlled by the refinery; and chemists confirmed that the petroleum hydrocarbons, sulfuric acid and sulfates found in the pit were likely the result of refinery waste material. The judge found that the evidence was credible, and that the refinery's current successor must pay the cleanup costs
- When One River Place in Wilmington, DE sought to raise a modern office building on a 2.4-acre waterfront industrial site with subsurface contamination, Saul Ewing attorneys represented the developer in multiparty negotiations with the city, the state, the funding group and the prospective tenant. The city bore the burden of site cleanup, and the parties signed a prospective purchaser agreement limiting our client’s liability for residual contamination.
- The Environment, Energy and Utilities Department obtained a ruling in federal court that a Superfund contribution claim against our client was barred by the statute of limitations.
The Western District of New York granted our client’s motion for summary judgment that the plaintiff’s CERCLA Section 113(f)(1) contribution claim was barred by the CERCLA statute of limitations because the action was filed more than six years after commencement of the cleanup work.
The plaintiff’s contribution action related to tar and soil excavation work that it had started in 1992, but which was halted when the plaintiff realized that the scope of the problem was greater than originally anticipated and that the excavated material could not be incinerated as originally planned. Plaintiff resumed the work in 1995 after revising the scope of the excavation and identifying an alternative disposal method.
As a result of facts developed by our attorneys in discovery, plaintiff realized that its claim was susceptible to a successful statute of limitations defense. Thus, plaintiff amended its complaint to drop its claim for the 1992 cleanup costs in the hopes of at least being able to recover costs for the 1995 work. Plaintiff’s strategy failed. In ruling in our client’s favor on the summary judgment motion, the federal court rejected plaintiff’s argument that its cleanup action was a “removal” action that commenced in 1995 and was subject to the three-year limitations period, and instead held that plaintiff’s two-phased cleanup project was a single “remedial” action that commenced in 1992 and was subject to the six year limitations period.
Our attorneys had argued that the cleanup work in both 1992 and 1995 had the same purpose, same objectives, involved the same methods, involved excavation to the same depth, and differed only in size of the excavation and disposal method for the excavated materials. The court further accepted our argument that plaintiff’s work could not be a “removal” action for purposes of CERCLA because the plaintiff had admitted that the work was not performed in response to any threat of harm to persons or the environment.
This victory resulted in estimated savings for the client of nearly $3 million.
- Pennsylvania statute requires certain benefits to be paid by facility operator to local host community. Absent such agreement, regulator may delay processing of facility permits or issue notice of violation. Agreement was negotiated promptly within parameters set by client.
Regulator and municipal officials questioned sufficiency of client's agreement with host municipality. Counsel to municipality indicated that a level of benefits far in excess of statutory minimum and prior agreement would be necessary to gain borough council approval. Regulator was holding major permit modification pending resolution of this issue (among others). Citing course of dealings and incorporating standards of ancillary settlements with borough, Client's counsel persuaded municipality to accept status quo benefits level, with minimal modification. Borough council voted to approve and execute agreement for an extended term. The result, which was accomplished in a matter of weeks, saved the client in excess of $2 million cash and generated a document that the client, municipality and regulator should be able to rely on for the remainder of the facility's operating life. Permit was issued days later.
- Environment, Energy and Utilities Department successfully defends construction clients against hundreds of alleged criminal violations of Pennsylvania’s blasting laws.
The Pennsylvania Department of Environmental Protection (DEP) issued our clients, a construction company and its licensed blasters, more than 600 criminal citations, claiming violations the Pennsylvania’s blasting laws and enabling regulations.
In defending against these criminal charges, our attorneys argued that two of the blasters were not properly charged, and that the facts presented at trial could not support criminal convictions. Following the summary trial and extensive briefing of the issues, the Court agreed, and found two of our four clients not guilty of the criminal charges. As a result, more than half of the 600 criminal charges were dismissed.
Prior to the trial involving the company and its vice president, our attorneys spotted and advanced another successful legal argument. Our attorneys argued that the DEP inspector is not a law enforcement officer qualified to commence a criminal prosecution by citation under Pennsylvania law. The Court agreed and dismissed the criminal charges against the company and its vice president.
In these blasting cases, thoughtful and creative attorneys resulted in success for our clients.
- Saul Ewing’s Business Department led a multidisciplinary team to close an acquisition of a plastics manufacturing business and associated manufacturing facility that involved complex environmental and employment issues as well as structuring issues.
Our client is an international manufacturer of plastic nets, meshes, fences, geogrids, geotextiles, and geosynthetics. On behalf of our client, Saul Ewing’s Business Department and a multidisciplinary team closed on the $12 million acquisition of a business and manufacturing facility in Alabama. The transaction involved purchasing the underlying real estate, assuming the seller’s obligation’s under municipal bond financing, and various letters of credit, as well as non-compete issues and benefits and employment issues. After six months of negotiations and closing preparations, the closing took place over several days in five states.
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