Environmental Litigation

The firm represents companies defending claims and enforcement, and pursues recovery for landowners, property owners, and businesses against responsible parties, predecessors in title, and insurers.

Contamination and cost recovery

• CERCLA and state superfund claims, contribution, and allocation among responsible parties
• Cost recovery against predecessors in title, neighboring operators, and former owners
• Soil and groundwater contamination affecting property value, financing, and redevelopment
• Environmental insurance coverage claims
• Indemnity disputes under purchase and sale, lending, and lease agreements

Enforcement defense

• Notices of violation, administrative penalties, and agreed and consent orders
• Contested case hearings before the Texas Commission on Environmental Quality
• EPA proceedings under the Clean Air Act, Clean Water Act, RCRA, and CERCLA
• Criminal matters, see below

Environmental criminal defense

• Potential criminal exposure for companies and individual officers
• Migratory Bird Treaty Act prosecutions, including a case involving defense of a chief executive under the Migratory Bird Treaty Act
• Clean Water Act matters carrying criminal as well as civil risk, represented an entity in an investigation of water pollution and fish kills involving the US EPA, the Texas Commission on Environmental Quality, and the Texas Parks and Wildlife Department
• Managing the overlap between an enforcement investigation and a criminal referral

Toxic tort and property damage

• Claims arising from emissions, discharges, spills, and alleged exposure
• Property damage and diminution in value, for claimants and defendants
• Expert testimony on causation, exposure pathways, and remediation cost

Permitting proceedings and appeals

• Federal litigation under the Endangered Species Act, NEPA, and the Clean Water Act
• Challenges to environmental impact statements and records of decision
• Wetlands permitting, enforcement, and mitigation credits and banking
• Third-party challenges to permits, and defense of permits once issued
• Judicial review of agency decisions

Co-counsel to other law firms

The firm acts as co-counsel and consulting counsel to litigation firms that require environmental litigation expertise for an environmental litigation matter — particularly where the statutes and regulations intertwine with negligence, trespass, nuisance, and other legal theories. The firm provides assistance in the following ways:

• Reviewing and selecting expert witnesses
• Working with expert witnesses in drafting expert reports
• Assisting in depositions of opposing experts
• Drafting and responding to interrogatories, requests for production, and requests for admissions
• Formulating litigation strategy
• Assisting in preparing for and strategizing about mediation and the mediation itself
• Negotiating settlement agreements

Where statutes meet tort law

• Negligence per se — whether violation of a statute, regulation, or permit condition establishes breach
• Trespass — physical invasion by migrating contamination, and the proof required to establish migration
• Private and public nuisance — substantial and unreasonable interference, and the special injury requirement
• Regulatory compliance — the extent to which compliance may provide any defense for a defendant
• Preemption and primary jurisdiction — whether federal statutes displace state common law claims, and whether a federal or state enforcement action preempts or replaces a common law claim
• Limitations — the discovery rule, and whether contamination is a permanent or a continuing tort
• Damages — remediation cost against diminution in value, and review of stigma damages claims
• Statutory claims alongside tort claims — CERCLA cost recovery and contribution and RCRA citizen suits, for example, and the relationship to tort claims

Scope of engagement

• Consulting counsel on the regulatory framework, case theory, and exposure, without appearing of record
• Co-counsel of record, working on the regulatory and technical portions of the case
• Agency records, permit histories, enforcement files, and compliance data
• Work with hydrogeologists, fate-and-transport modelers, and remediation cost consultants, among other types of experts

Fee arrangements may be hourly or by division of fees between firms as permitted by the Texas Disciplinary Rules of Professional Conduct.

Representative matters

Described by matter type. Client identities and case outcomes are confidential.

Represented a landowner whose property was contaminated when stormwater surged from an adjacent landfill, affecting more than twelve acres. The matter combined regulatory analysis of the landfill operator's obligations with common law claims arising from the migration onto the client's land and resolved in a negotiated settlement that included full indemnification of the landowner against liability arising from the landfill company's operations.

Tried and appealed a government cost recovery action under CERCLA in which joint and several liability was avoided — the first time that had been achieved in such a case.

Defeated a RCRA enforcement action over universal waste classification. Texas recognized a universal waste exemption for a printing waste, but the waste traveled through Oklahoma to disposal in Kansas, and neither state had adopted the exemption. The argument was that a waste classified as universal waste keeps that classification across state lines under principles of comity. EPA Region 6 consulted Washington and accepted it, ending the action against the client — and prompting EPA to drop similar cases against several other companies.

Defended a client in an offshore oil platform Clean Water Act matter, avoiding large fines and the potential criminal prosecution of the company, and reducing a potential multi-million-dollar penalty to a small fraction of the exposure.

Represented a data center developer in a purchase and sale transaction that did not close because the seller failed to satisfy its environmental obligations under the contract — a matter at the intersection of environmental diligence, contract enforcement, and energy project development.

Resolved an endangered species obstacle to a defense contractor facility expansion with a solution that avoided an anticipated two-to-three-year project delay.

Other matters

• Defended a transmission company in federal litigation challenging a line upgrade under the Endangered Species Act and NEPA
• Represented a client in federal litigation concerning oil and gas exploration, involving the Endangered Species Act and wetlands permitting
• Represented an oil company in the potential criminal prosecution of its chief executive under the Migratory Bird Treaty Act
• Represented a defense contractor in endangered species issues arising from expansion of a California manufacturing facility
• Represented clients in toxic tort and property damage litigation, including an air emissions case with more than 800 plaintiffs and a class action involving several major oil companies in Texas
• Represented clients in carbon credit disputes, trading arbitrations, and settlements

Related reading: Texas BESS decommissioning and financial assurance.

Questions clients ask