Effectively resolving environmental disputes.
Foley Hoag has perhaps the largest environmental litigation and dispute resolution practice in New England. And, through service to our clients, we have attained a national reputation in environmental matters. Our lawyers have built an impressive record resolving environmental disputes at the negotiating table and in the courtroom, and a number of our cases have produced precedents of national importance.
Foley Hoag has demonstrated to our clients the effectiveness of our approach, which combines the aggressive use of litigation, alternative dispute resolution and negotiation, to pursue all avenues of relief or defense. Foley Hoag has considerable experience in the resolution of environmental litigation through facilitated third-party mediation, and several of the members of the environmental group are formally trained as mediators and have served as mediators.
We carefully tailor our efforts to promote successful, but cost-effective, results for each client.
We represent clients in a large number of federal and state superfund matters pending in courts in all regions of the country. Those matters involved both government enforcement actions and private-party cost-recovery claims. We have also handled a number of claims bought under other environmental statutes, such as the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Safe Drinking Water Act, the Endangered Species Act and the Marine Mammal Protection Act.
Often we represent governmental entities in litigation centering on environmental and land-use issues. We also have considerable experience in litigating so-called toxic tort claims, which involve allegations of personal injury from exposure to hazardous materials.
We have successfully represented our clients in numerous state and federal enforcement proceedings for alleged violations of clean air/clean water regulations, toxic substances regulations, and hazardous waste and hazardous material regulations. We have negotiated significant reductions in proposed penalties, and helped craft creative solutions to agency demands for pollution prevention or control, which satisfy the agency without unduly interfering with business operations.
Representative Experience
The following cases provide an overview of the type of work we can provide to our clients:
- Represent Boston University and Boston Medical Center regarding the development of the National Emerging Infectious Diseases Laboratories (NEIDL), which will be located in a new building on the Medical Center Campus. The NEIDL will perform advanced research to identify vaccines and cures for infectious diseases. We provided advice concerning the National Environmental Policy Act and the Massachusetts Environmental Policy Act. We also defended Boston University and Boston Medical Center in citizen lawsuits challenging the project under MEPA and NEPA in both federal and state court.
- Represent the City of Portland, Oregon in a challenge to the Environmental Protection Agency’s Long-Term 2 Enhanced Surface Water Treatment Rule, which is pending in the United States Appeals Court for the District of Columbia. Portland is challenging the new rules requiring that it provide treatment for cryptosporidium and requiring that its open distribution reservoirs be covered. The challenge is based upon both the arbitrary and capricious nature of the rules and the fact that the cryptosporidium rule was not based upon the best available peer-reviewed science.
- Act as counsel for an electric power generating company before the U.S. Environmental Protection Agency’s Environmental Appeals Board in an administrative appeal of the thermal discharge and cooling water intake components of a NPDES permit issued for one of its facilities.
- Represent the Massachusetts Bay Transportation Authority in a lawsuit filed pursuant to the Clean Air Act. The lawsuit is alleging violations of the Massachusetts State Implementation Plan (“SIP”) concerning public transportation improvements.
- Advise a manufacturer of electronic components regarding the defense of claims for personal injury bought by neighbors of a former manufacturing facility. The residents allege a variety of ailments, including some cancers they claim were caused by exposure to numerous chemicals, including polychlorinated biphenyls, metals, and volatile organic compounds such as trichloroethylene.
- Represent the Coalition for Buzzards Bay in a lawsuit bought by the United States to invalidate the Massachusetts Oil Spill Prevention Act (“OSPA”). The United States Court of Appeals for the First Circuit agreed with our position that the OSPA is not preempted by federal law as a matter of law. In so doing, the court reversed the District Court and remanded the case.
- Act as counsel for a public utility company in a Chapter 21E lawsuit filed by the owner of a parcel adjacent to a site once operated as a manufactured gas plant (MGP). The plaintiff alleges that his property was contaminated by wastes migrating from the former MGP site.
- Defended a major chemical manufacturer in an action involving contamination at a 150- year-old waterfront facility against claims for property damage and cleanup cost recovery. We obtained a complete dismissal of the property damage claim, and, after a trial, obtained a favorable judgment on the allocation of future cleanup costs.
- Represent the Massachusetts Bay Transportation Authority in two actions to recover environmental cleanup costs from railroad companies that previously owned and operated facilities now owned by the Authority.
- Represented developers of two proposed transfer stations in site assignment proceedings before local boards of health.
- Represented the Massachusetts Water Resources Authority in its successful trial against the United States involving Safe Drinking Water Act claims that the water supply for eastern Massachusetts should be filtered.
- Represented two parties in defense of a private cost-recovery action involving a National Priorities List Superfund site. On behalf of one defendant, we obtained a precedent-setting judicial decision requiring private plaintiffs to prove that a defendant’s waste caused plaintiffs to incur response costs. We also acted as common trial counsel on behalf of all defendants with respect to the plaintiffs’ disposal activities.
- Acted as special litigation counsel for the Massachusetts Water Resources Authority for many years in connection with the cleanup of the Boston Harbor and ongoing compliance matters under the Clean Water Act.
- Represented the former operator of an industrial facility in defense of claims by more than thirty neighbors claiming personal injury and property damage from alleged exposure to hazardous chemicals. After having the personal injury claims dismissed, we were able to settle the property damage claims through mediation.
- Represented Hasbro, Inc. in successful litigation over millions of dollars in cleanup costs at a site in Lancaster, Pennsylvania.
- Since 1983, have represented one of two companies principally charged with the PCB contamination of New Bedford Harbor and nearby hazardous waste sites. In two of the largest cases, we negotiated agreements under which insurers paid all of our client’s legal and consultants’ fees in defending government and private lawsuits. We also secured substantial settlement contributions from insurers.
- Served on the trial management committee and took the lead in negotiating a settlement with the state and federal governments on behalf of over 200 de minimis parties.
- Played a leading role in negotiating a $20 million settlement with federal and state governments on behalf of the settling generator parties. We currently serve on the executive committee, which is implementing the cleanup at the site. Although the generator parties are the most numerous, the settlement we achieved required that the federal and local governments pay the lion’s share of cleanup costs.
- Served as common counsel to 25 defendants in a $60 million case involving the cleanup of four related sites in Massachusetts and New Hampshire. After negotiating an extremely favorable settlement with the two governments, we defended that settlement before the First Circuit Court of Appeals in what has become the leading case nationally on Superfund settlements. In a related action, we obtained a multi-million-dollar summary judgment award against the site operator.
- Represented the Dow Chemical Company and FMC Corporation in defense of property damage claims arising from municipal well contamination allegedly related to a pesticide manufactured by Dow. After conducting focused discovery, we were able to negotiate a favorable settlement.
- Served as liaison counsel for the generator defendants in a $75 million government enforcement action. We also represented one of the defendants individually, obtaining a beneficial settlement after demonstrating that none of the wastes at the site contained the chemical signature of wastes generated by that party.
- Represented a major industrial pretreatment discharger in defense of a citizens’ lawsuit brought under the Clean Water Act, which was seeking both injunctive relief and civil penalties.
- Successfully defended in Land Court the right of a local planning board to condition its approval of a residential subdivision.
- Successfully defended an approval issued for an innovative "cross dock" facility located in Central Massachusetts.
- Defended against challenges to permits issues for two separate golf course projects.
- On a pro bono basis, helped an organization providing transitional housing to women in need in Central Massachusetts to negotiate the cleanup of petroleum from an underground storage tank from a neighboring property. That negotiation allows the organization to proceed with plans to finance major renovations to the property and expand their services to the community.
Representative Experience: Agency Administrative and Penalty Proceedings
- Represented the owner of two large coal-fired power plants in the first permit appeal of the Massachusetts Department of Environmental Protection’s Emission Standards for Power Plants, 310 CMR 7.29. This is one of the most stringent multi-pollutant regulations in the country. After vigorously litigating the case to hearing, we crafted and successfully negotiated a solution that assured electricity reliability to the New England region, while balancing near-term environmental protections. The solution was characterized by our client as a “win-win” for all parties.
- Advised the owner of a large landfill in a proceeding in which the host community was seeking to withdraw its “site assignment” authorizing the facilities operations. We persuaded the hearing officer, handpicked by the host community, to adopt our proposed findings almost in their entirety. The local board of health rejected its hearing officer’s findings, but we succeeded in having them reinstated by the Superior Court, and the Appeals Court affirmed.
- Represented the owner of the largest coal-fired power plants in Massachusetts in challenging proposed modifications to its wastewater discharge permit.
- Advised the owner of recycled paper mills in a variety of environmental enforcement actions involving air, water, noise, and odor issues.
- Represented a major telecommunications company in an enforcement action involving electric generation issues at dozens of locations.
- Acted as counsel to the City of Everett in the defense of a Chapter 91 license issued to allow construction of a major recreational facility along an underdeveloped waterway.
- Represented an operator of a power plant in New York State in an administrative appeal of a Title V operating permit.
- Represented an operator of a South Carolina hazardous waste treatment, storage and disposal facility in an administrative hearing over disputed enforcement actions.
- Defended the issuance of wetlands approvals authorizing the construction of a new golf course in the western suburbs of Boston.
- Represented numerous developers and landowners in appeals concerning both the state Wetlands Protection Act and so-called Chapter 91 cases, concerning waterfront development.
International Environmental Law
- Represent the Republic of Uruguay in an action pending in the International Court of Justice regarding the construction of pulp mills on the River Uruguay, this includes a defeat of a motion to halt construction to the mills. This ongoing action is based on Argentina’s claim that pulp mills will impermissibly harm the river and surrounding areas. It is the first environmental case to be bought before the International Court of Justice.
- Represent the country of Djibouti in assessing potential claims against three large global oil companies concerning contamination of the principal port of Djibouti, which resulted from operations by those oil companies near the port. Advice has included an assessment of potential claims against the oil companies under international law, in what forum the claims should be brought, and the relationship between potential international claims and claims already pending in courts in Djibouti.
Environmental Insurance Coverage Litigation
At Foley Hoag, we have significant experience representing clients seeking defense and indemnification from insurance companies for costs associated with environmental contamination. Our work has aided our clients in recovering millions of dollars from insurance companies, both in litigation and in settlement prior to litigation. Some examples of our work include:
- Served as Chicago Bridge & Iron Co.’s lead trial and lead appellate counsel in a precedent-setting case arising from the alleged environmental liability of a policyholder from wood treating operations of a former affiliate. We won a $6 million judgment after trial, which was affirmed on appeal, in a frequently cited opinion holding that the policyholder was entitled to recover “all sums” under each triggered policy, rather than mere pro-rated amount.
- Retained to appeal a summary judgment granted to an insurer on grounds that “owned property” exclusion precluded coverage under a homeowner’s policy liability provisions for the costs of cleanup of a home-heating oil spill. The Supreme Judicial Court reversed, agreeing that costs incurred to abate contamination of third-party property are covered, even if remedial work is performed on the policyholder’s property. The case is now widely cited to defeat “owned property” defense under commercial liability insurance.
- Won summary judgment against a primary insurer on a duty to defend DEP Chapter 21E proceeding regarding a former coal-tar processing facility. We tried a “lost policies” case against a second insurer, successfully establishing the terms of the policies and won summary judgment on the second insurer’s duty to defend. We also secured a 10-year stay of the primary insurer’s counterclaims seeking declaration of no indemnity obligation. The case is presently pending against primary and excess insurers.
- For our client Fairchild Industries, in litigation in the California and New York federal courts, obtained a favorable settlement in the litigation of several polluted sites around the country—notwithstanding the carrier's asserted defense of late notice of the claims.
- Asserted claims against numerous insurers arising from environmental contamination of over seventeen separate sites located in more than seven states. Through these claims, we have obtained summary judgment requiring various insurers to pay our client’s defense costs. We have also obtained settlements, which reimbursed our client substantial portions of the sums it has incurred in addressing its potential environmental liabilities.
- Represented Raytheon Company in an action seeking recovery of millions of dollars in costs related to the cleanup of approximately 60 sites in several states. The case settled on the eve of trial.
- For our client Hoechst Celanese Corporation, bought a lawsuit against numerous insurers for defense and indemnification of claims arising from environmental contamination at various facilities around the country. We defeated and successfully opposed on appeal a defense motion based upon supposed late notice, which led to a favorable settlement.
- Negotiated seven- and eight-figure insurance settlements on behalf of clients Eagle-Picher Industries, Inc.; Great American Financial Resources, Inc., as successor to Sprague Electric Company; Eastern Enterprises; and Boston Gas Company
Alternative Dispute Resolution
While not a panacea, alternative dispute resolution (ADR) often provides a fruitful approach to achieve a client’s goals cost effectively. Depending upon the circumstances, we suggest mediation, arbitration and/or facilitated negotiations as potentially appropriate ways to resolve environmental disputes.
Our environmental lawyers have significant experience in ADR. Several members of the department are trained as mediators, and almost all of our environmental lawyers have represented clients in disputes resolved through one or more types of ADR. We also advise clients concerning the form that ADR provisions, in settlement agreements and corporate or real estate transaction documents, should take. This approach minimizes transaction costs in the future, should disputes over the terms of an agreement arise.
Some of the matters that we have resolved through ADR include:
- In one case, a proposal for an extremely lengthy and costly mediation process was on the table before we got involved. Representing de minimis parties, we proposed a more streamlined structure, which enabled the de minimis parties to achieve settlements while incurring significantly reduced transaction costs.
- In one complex, multi-party case, we advised our client regarding matters we believed needed to be litigated before ADR could be effective. We then represented our client in the mediation process, achieving a settlement requiring the defendants to take over the cleanup at all of the sites at issue in the case.
- Using a third-party mediator, we were able to resolve a superfund contribution claim between the plaintiff and thirteen defendants.
- We represented one defendant in a multi-party federal superfund action, which we were able to settle through mediation.
