Sutherland’s environmental lawyers focus on both the legal and practical aspects of environmental issues. We use a business oriented approach to solve environmental problems, an approach fostered by our unique training, backgrounds, and legal experience. For example, some of our attorneys have “hands on” experience at federal and state environmental regulatory agencies, as well as in industry. Others regularly publish and lecture on cutting edge environmental issues and participate in trade groups and leading chambers of commerce. Several of our lawyers and our environmental practice group, are recognized in either the “Chambers & Partners Guide,” or in the “Best Lawyers” publications.
Over 20 lawyers comprise our environmental group, with representation in each of our offices. Our experience and depth allows for thoughtful and prompt response to environmentally significant events when they arise, whether it is in the context of litigating environmental claims, handling contested permit or enforcement proceedings, establishing and maintaining regulatory compliance, or managing environmental issues affecting transactions or project development. Like our clients, we understand the value of mutual interdependence. We staff projects across office lines, and in the litigation context we team with trial lawyers having environmental case experience. This teaming approach ensures that the appropriate environmental knowledge base guides strategic case development and ensures a thorough analysis of environmental issues throughout the litigation. From a more fundamental standpoint, teaming creates efficiency. Issues are not researched that are already well recognized by our environmental lawyers, and nuances of the law are not overlooked. Thus, in Superfund matters and other environmental litigation we transition effectively from negotiation to trial proceedings without the loss of expertise or efficiency.
Sutherland lawyers are regularly engaged in the following aspects of the environmental legal practice:
Facility Siting/Land Use
We represent facility owners and operators in connection with both Greenfield development and facility redesign and modification. We evaluate environmental conditions that present development or operational impediments or risks, and work creatively with appropriate regulatory frameworks to craft solutions. In connection with facility siting we regularly address issues raised by endangered species, wetlands, as well as cultural and historical artifacts. When necessary, we help our clients effectively manage the NEPA process by understanding and guiding the approach taken to address environmental and socio-economic impacts. Moreover, we have successfully represented our clients at each of the various stages of facility siting and land use development, including representation before city councils, zoning boards, and state and federal administrative agencies. We also have successfully represented clients appealing decisions by permitting authorities, including through civil litigation.
Permitting and Enforcement
In an age where greater governmental authority is delegated to administrative agencies, Sutherland’s environmental attorneys consistently represent the firm’s clients before regulatory authorities in connection with permitting and enforcement actions involving federal and state air, water, waste and other regulatory programs. We also defend our clients in enforcement proceedings, negotiate administrative orders, and manage the public relations aspects of all of these issues.
Sutherland assists clients in managing plant level environmental liabilities before they arise, so as to prevent crises from occurring. Without cost to our clients, we familiarize ourselves with the plants, processes, and facilities associated with the project at hand, and apply a practical understanding of how regulatory regimes apply to facility operations. Our diligence usually has a direct and immediate cost savings to our clients, allows them to comply proactively with applicable regulations, positions them to better mitigate the risk of liability, and minimizes operational interruption. We consistently work with federal, state and local regulators, including the Environmental Protection Agency, Army Corps of Engineers, the Fish and Wildlife Service, and the United States Coast Guard among other authorities.
Our environmental team regularly represents clients in environmental litigation, including state and federal Superfund actions, citizen’s suits, and litigation arising out of corporate and real estate transactions, including environmental indemnity disputes. We have broad experience in cases involving the allocation of environmental liability under both common and statutory law. We also defend clients in civil or criminal enforcement actions, toxic tort claims, property damage suits, and related multi-plaintiff actions. We are experienced in representing companies in emergency response situations, including chemical releases, explosions, oil spills, and other industrial accidents. Finally, we assist clients with internal investigations to identify potential environmental responsibilities subject to financial and environmental reporting.
There is little doubt that clients will face regulation of their emissions of carbon dioxide and other greenhouse gases (GHG). Regulation has commenced in overseas markets and in several cities, states and regions of the country. At the federal level, Congress has directed the Environmental Protection Agency to institute an emissions reporting framework within the United States. Consequently, companies in all regulated sectors must be prepared to take stock of their current emissions, establish baselines and implement solutions to achieve regulatory objectives as those objectives become binding. Whether a business chooses to meet its objectives by employing control technologies, reducing energy consumption, purchasing emission allowances or participating in emission-offset projects, it will have to undertake material business planning, resource allocation and investment to address these emerging regulatory challenges. Sutherland offers concrete guidance in these activities.
In addition, publicly-traded companies will face increasing pressure to measure and disclose business and financial risks that climate change regulation or climate adaptation may pose. Sutherland assists clients in managing these issues and other prospective environmental liabilities before they arise and preventing crises from occurring. We are able to develop solutions to issues as they arise and where necessary prepare comprehensive yet user-friendly policies and procedures to facilitate compliance, sustainability, and accountability to shareholders while minimizing cost and operational disruption.
Moreover, with a changing regulatory landscape, new business opportunities will arise in building and installing the infrastructure to manage and serve a carbon constrained economy, including the development of renewable and clean energy facilities, and the capture and sequestration of GHG. Sutherland possesses the knowledge, experience and creativity by which to assist clients in identifying and leveraging these business opportunities, while efficiently obtaining the requisite environmental approvals and managing necessary stakeholder involvement that is critical in pursuit of these opportunities.
Our full-service environmental practice regularly advises clients in carbon-intensive industries on air, water and waste issues. We have represented clients in permit, enforcement, and other administrative, civil and criminal proceedings related to a variety of EPA permit programs, including Title V, New Source Review (NSR) Prevention of Significant Deterioration (PSD), and the National Pollutant Discharge Elimination System (NPDES), among others. Futhermore, we have advised clients regarding and assisted with the purchase or sale of emission allowances under existing NOx and Acid Rain Programs. Any of these programs may serve as the model for EPA’s efforts under a GHG regulatory scheme. Familiarity with these programs gives Sutherland unique insight into the design and function of future permitting, reporting and enforcement programs. Thus, we bring ready advice and practical thinking to our clients’ businesses in the face of this evolving area of the law.
Fuel Specifications and Mobile Source Programs
Sutherland’s environmental practice covering fuels specification and mobile source programs has served refiners, gasoline blenders, and importers for over two decades. We routinely assist our clients in every aspect of the development and implementation of policies, plans and procedures to comply with the environmental regulations that govern gasoline and diesel fuel specifications nationwide. Since the inception of the Environmental Protection Agency's Renewable Fuels Standard (RFS1 and RFS2), Sutherland attorneys have also provided in-depth counseling to clients on compliance and commercial issues surrounding the production, importation and trading of renewable fuels, including associated renewable identification numbers (RINs). In addition, Sutherland attorneys have litigated major cases concerning the state and federal rules governing the manufacture and distribution of clean gasoline and have worked closely with the Environmental Protection Agency to assure that our clients’ interests are reflected in federal and state fuels policies and rulemaking.
Oil Spill Litigation and Couseling
Sutherland is regarded as one of the country’s leading legal resources for energy companies in the field of oil spill regulation and litigation. Our energy and environmental attorneys advise United States and foreign refiners, marketers, importers and petroleum commodities trading firms of the implications of the federal Oil Pollution Act of 1990 and state laws imposing liability upon owners and operators of vessels, marine terminals, shippers and cargo owners, and the role of protection and indemnity clubs. One of the most important aspects of the firm’s efforts in this field involves the provision of oil spill risk management. We tailor our assessment of the obligations and risks posed by federal and state spill laws to meet each client’s individual operations, and we provide a variety of suggested procedures for managing these risks.
Issues of environmental liability are pervasive when assets, businesses, or other commercial interests are bought, sold, or exchanged. The knowledge we gain from our investment in learning our clients’ business enables us to provide focused due diligence efforts to identify and address those issues. We have the expertise to effectively structure and document the resulting transactions, enabling our clients to maximize the benefit of their bargains.
© 2013 Sutherland Asbill & Brennan LLP