Practice Areas & Industries: Winston & Strawn LLP

Practice/Industry Group Overview

Crafting workable solutions to environmental problems requires a clear understanding of a business’s structure and resources. Winston & Strawn's environmental law team gets to know your business so we can provide practical, cost-effective advice. Our environmental lawyers include seasoned litigators, veterans in corporate transactions, and attorneys adept in rulemaking and legislative lobbying in state, federal, and international forums.  This 360-degree coverage lets us provide comprehensive assistance on existing environmental issues, spot developing regulatory trends and anticipate potential issues, and develop creative strategies to avoid or minimize risk.

Our attorneys approach assignments from environmental clients with a view toward what will be most beneficial to the client in the long run. This approach has afforded us the opportunity to develop relationships with clients that span many years.  These long-term relationships allow our attorneys the time to develop environmental management systems that help simplify day-to-day compliance issues for our clients as well as minimize risk of enforcement. If violations are identified, our environmental attorneys develop strategies for a quick, cost-effective resolution to the problem to help minimize the client's penalties and legal fees. Sometimes, our attorneys have been able to avoid penalties altogether.

Winston & Strawn's environmental attorneys also have the ability to call upon other practice groups at the firm, including litigation and corporate, to provide versatile, effective representation to our clients.

Services Available

Environmental Litigation and Toxic Tort

The firm has a diverse civil and criminal litigation practice covering many areas of environmental law. Winston & Strawn has litigated cases concerning private cost recovery and clean-up allocation issues, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA”), the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act (“RCRA”), underground storage tanks, state and local law issues, including the siting of facilities. Our experience ranges from hearings before state environmental permitting agencies in contested proceedings, to federal district court proceedings in government and private enforcement, toxic tort, citizen suit, and injunction actions, to federal appeals of permitting and siting decisions. In addition, we litigate in federal and state appellate courts in challenging agency regulations, and represent major industry groups as amici curiae before the United States Supreme Court and U.S. Court of Appeals.

Winston & Strawn litigates breach of contract claims involving the purchase and sale of properties, Superfund claims, successor liability issues, and state law claims such as trespass and nuisance. We have developed innovative approaches in private cost recovery actions for both plaintiffs and defendants, and have developed many unique settlements between current and prior owners of contaminated sites. We have been instrumental in fashioning precedent-setting strategies for providing cost-effective remedies without incurring large transaction costs in Superfund actions. Our experience includes federal CERCLA sites, state equivalents, private sites, and sites where municipalities and the federal government are involved as potentially responsible parties.

We handle the siting and permitting of pollution control facilities (solid waste, mixed waste, recycling, and waste-to-energy) and manufacturing sites, as well as the attendant hearings and appeals thereof. These hearings involve expert witnesses and multiple parties in what are almost always hotly contested proceedings.

Our attorneys often represent clients in enforcement actions, both civil and criminal, where the plaintiffs are federal authorities, state agencies, local boards, or citizens’ groups. We also represent clients with respect to internal investigations, notices of violation, and noncompliance letters received with regard to matters arising under the Clean Air Act, the Clean Water Act, the Hazardous Materials Transportation Act, CERCLA, RCRA, and state equivalent statutes.

Environmental Enforcement

Commercial and industrial enterprises must comply with a myriad of environmental statutes and regulations. The federal, state, or local agencies charged with enforcing those regulations have a wide array of mechanisms available for use against suspected violators. These enforcement mechanisms include criminal penalties assessed against an entity, criminal imprisonment of individuals, civil fines and penalties, natural resource damages, and injunctive relief. In addition, many environmental laws empower private citizens to bring suit to enforce a particular statute, which can result in civil penalties and injunctive relief, as well as awards of attorneys’ fees to the victorious citizen-plaintiffs. In addition, conditions giving rise to enforcement actions also generate class action suits by persons claiming to be adversely affected by those conditions.

Winston & Strawn has extensive experience defending clients against agency and citizen enforcement of environmental laws and against resulting class actions. We have represented clients in actions brought by federal agencies, including the U.S. Environmental Protection Agency and the Department of Justice, in courts around the country. Our attorneys also have litigated against and negotiated with state and local environmental agencies, citizen groups, and private parties. Winston & Strawn has the experience necessary to provide effective representation in environmental enforcement matters from the receipt of a Notice of Violation (“NOV”) or grand jury subpoena through settlement or trial and, if necessary, appeal.

Our approach to defending environmental enforcement actions focuses on active representation of the client designed to minimize expense and exposure. We build an effective team; conduct a thorough investigation; work closely with the client to identify likely issues in the enforcement action; negotiate settlement or dismissal of the charges; and defend the client aggressively in court proceedings, motion practice, and discovery. Working in consultation with our client, we pursue strategies that seek to advance our client's interests and minimize future enforcement scrutiny.

Facility Siting

Winston & Strawn is proud of its record of securing community siting approval at the hearing level.  Siting approval through a hearing before the host community is the first critical step in the permitting process for power plants, waste facilities (landfills and other disposal sites, transfer stations, treatment facilities, and incinerators), new manufacturing facilities, and commercial development projects.  Our successful approach involves building an effective business, legal, and technical team; laying the groundwork for approval; accentuating the project’s strengths at the siting hearing; and creating an appropriate record in the event of an appeal. 

Prior to the siting hearing, we work closely with the client to disseminate positive information, create and mobilize supporters, and identify any opposition and potential issues.  We work with the project’s environmental engineers to make sure the project design meets the applicable criteria of federal, state, and local laws and can be effectively and efficiently communicated to the hearing panel and the public.  In appropriate situations, we also work with public relations firms to inform the various constituencies of the project’s benefits.

In presenting the client’s case at the hearing, Winston & Strawn’s environmental attorneys combine the necessary technical details with common sense explanations of the project’s merits.  As is often required, we dissect any presentation made in opposition to siting approval, again working closely with appropriate technical consultants to expose flaws in the opposition’s case.  After the siting decision is rendered, if necessary, we will defend the decision in any subsequent appeal.

Some of the recent siting projects handled by our environmental attorneys include:

• construction and demolition debris facility in Lake County, Illinois; in process of receiving approval
• a biosolids recycling facility in Stickney, Illinois; received siting approval
• a waste-to-energy facility (municipal solid waste) in Robbins, Illinois; received siting approval

Environmental Due Diligence

Winston & Strawn represents major financial institutions, buyers, sellers, developers, and underwriters in connection with transactions such as sales, purchases, joint ventures, leases, construction, mortgages, financing, refinancing, reorganizations, and security and debt offerings. This segment of the practice includes preparing and evaluating audit information to identify any potential environmental liabilities and environmental risks, quantifying any existing liabilities and risks, proposing action plans for addressing any liabilities and allocation schemes for any identified risks, and documenting the risk allocations agreed to by the parties. The firm has counseled its clients in sophisticated environmental compliance necessary to complete these transactions promptly and in accordance with the parties’ intent.

French and EU Environmental Law

Winston & Strawn's environmental practice in Paris includes regulatory, transactional, and litigation aspects of environmental law of the European Community as well as the countries of Western and Eastern Europe and developing Africa. Our highly experienced attorneys counsel clients with respect to the applicability of various European and national environmental law requirements, particularly in connection with the siting and permitting of manufacturing sites. We advise purchasers, sellers, and lenders on various environmental aspects of European and national transactions such as identification of environmental issues and potential risks through the performance of audits and the allocation of such risks among the parties in real estate and corporate transactions.

We also represent clients in criminal, civil, and administrative environmental litigation and arbitration, as well as in the negotiation with governmental authorities of remediation programs and the voluntary clean-up of contaminated sites. In addition, our attorneys in Paris and Geneva participate in the legislative and policy-making process at European and national levels on behalf of various clients, including manufacturing associations and governmental entities.

Environmental Permitting

Winston & Strawn assists clients in a variety of permitting efforts that involve all media and many different types of facilities.  Our work includes preparing and reviewing permit applications, analyzing and commenting on proposed permits, and negotiating with regulators for permits governing facility construction and operations, under, for example, the Clean Air Act (from state preconstruction permits to Title V operating permits), the Clean Water Act (for stormwater discharge, wastewater discharge, and wetland impacts), the Resource Conservation and Recovery Act (RCRA) (for solid waste and hazardous waste disposal, treatment, storage, and recycling), and other environmental licensing programs (such as groundwater use).  We have successfully defended against challenges by citizens groups to permits issued to our clients and, where necessary, have successfully appealed unfavorable permit terms.

Our approach to permitting is similar to that for siting facilities.  We work with each client to prepare a permit application that will meet the facility’s current and future needs, will avoid undue burdens, and that also meets all applicable regulatory requirements.  For new facilities, we coordinate the permitting for all media, including air, water, and waste disposal, and provide a legal opinion to lenders regarding environmental permitting.

Environmental Regulatory/Compliance

Winston & Strawn plays a significant role in our clients’ efforts to achieve and maintain environmental compliance. This role includes permitting for air, water, and solid waste; development and implementation of audit programs and environmental management systems; strategic planning for the implementation of new regulations; and administrative or legislative lobbying on environmental issues that impact our clients.

An important segment of the environmental department's compliance and counseling practice involves counseling corporations, and their directors, officers, and employees in the area of federal and state criminal environmental enforcement matters. We conduct internal investigations for corporations and negotiate with the appropriate state and/or federal criminal investigative agency, and represent defendants in preliminary agency inquiries, grand juries, and trial proceedings.

Our attorneys also participate in the legislative and policy-making process on behalf of clients. We draft environmental legislation for consideration by Congress and state legislatures, submit comments on proposed regulations and rules, and confer with federal and state executive and administrative officials concerning the applicability and interpretation of existing rules.