Nicholas W. van Aelstyn
456 Montgomery Street
San Francisco, CA 94104-1251San Francisco
- Williams College (B.A., Political Science and Environmental Studies; 1986; essay awards in both disciplines)
- University of Oregon School of Law (J.D., 1990; Associate Editor, Journal of Environmental Law & Litigation; Order of the Coif)
Bar Admissions & Memberships
- Washington, D.C.
- California Supreme Court
- U.S. District Court, Northern District of California
- U.S. Court of Appeals for the Ninth Circuit
- U.S. District Court, Central District of California
- U.S. District Court, Eastern District of California
- Supreme Court of the United States
- Circuit Court for Jefferson County, Alabama
- U.S. District Court, District of Utah
- U.S. District Court, Northern District of Alabama
- ABA Litigation, Environmental and International Sections
- Bar Association of San Francisco
Relevant Past Experience
- U.S. Court of Appeals for the Second Circuit, Motions Law Clerk (1990-1991)
Nicholas (Nico) W. van Aelstyn has more than 20 years of environmental counseling and litigation experience; he chairs both the Climate Change and the Alternative Energy practice groups and until recently co-chaired the CERCLA/Contaminated Properties group. Mr. van Aelstyn's environmental counseling practice focuses on climate change, renewable energy development, sustainability, Brownfields redevelopment, regulatory and transactional matters. Mr. van Aelstyn's environmental litigation practice focuses on cost recovery actions, regulatory enforcement actions, challenges to regulations, and representation of PRPs and PRP groups (as common counsel) at Superfund sites. His litigation experience encompasses intellectual property, as well as commercial, real estate, and appellate litigation matters. He has handled matters in state and federal courts across the country, including the U.S. Supreme Court, as well as various administrative fora. See the list of his representative engagements below.
Prior to joining Beveridge and Diamond, Mr. van Aelstyn was a shareholder for ten years at a large national firm practicing environmental law, as well as IP and other litigation. He has published articles concerning climate change, prospective purchaser agreements, lender liability, cleanup standards, Brownfields and other environmental issues, as well as physician-assisted dying in prominent legal journals in both the U.S. and the U.K. He is a regular speaker on these issues; see the list of presentations below. Mr. van Aelstyn served as a Motions Law Clerk to the U.S. Court of Appeals for the Second Circuit. He has been recognized as a Leading Individual in Environmental Law by Chambers USA, and has been selected for inclusion in the 2011-2012 editions of Super Lawyers.
- Climate Change. Mr. van Aelstyn advises numerous clients on a host of issues relating to climate change issues, particularly those in California. Representative matters include:
- Since its founding at the California Air Resources Board’s (CARB) first AB 32 implementation stakeholder session in 2007, he has served as counsel to the Carbon Offset Providers Coalition (COPC) (www.carbonoffsetproviders.org), the leading industry task force in this area, representing it in all aspects of AB 32 implementation;
- He represents a major manufacturing entity with respect to a dispute concerning the GHG emission benchmark that CARB established for its industrial sector and issues relating to AB 32’s requirement that credit be given by CARB for early actions to reduce GHG emission;
- He represents one of California’s major electricity providers with respect to Cap-and-Trade issues;
- He represents the International Emissions Trading Association (www.ieta.org), the Verified Carbon Standard Association (http://v-c-s.org), and COPC as intervenor defendants in the lawsuit challenging California’s offsets program, Citizens Climate Lobby and Our Children’s Earth Foundation v. California Air Resources Board, Case No. CGC-12-519554 (San Francisco Superior Court);
- He advises numerous clients with respect to regulatory compliance issues under both state and federal greenhouse gas regulatory programs.
- CERCLA. Mr. van Aelstyn represents individual PRPs and serves as common counsel for PRP groups at several state and federal Superfund sites. In these capacities he has negotiated settlements with state and federal regulatory agencies, as well as other PRPs. He has also handled allocation disputes and other internal PRP group issues. The types of Superfund sites that he’s handling or has handled include sediment sites, regional groundwater sites, disposal sites, drum sites, and various industrial facilities. Several of these involve natural resource damages (NRD) claims by federal and state natural resource trustees. These sites typically require comprehensive strategies that address remediation and NRD issues and their intersections with allocation issues. Superfund sites at which Mr. van Aelstyn is currently active include:
- Yosemite Slough Superfund Site, San Francisco, CA (EPA Region IX): Region IX’s only active sediment site; common counsel for the PRP group spearheading the EE/CA negotiations with EPA as well as handling negotiations with other PRPs, including several different governmental entities;
- Portland Harbor Superfund Site, Portland, OR (EPA Region X): large, complex sediment site; counsel for PRP that is a member of the PRP group performing the RI & FS, a party to cost recovery litigation concerning the Site, and participating in the PRPs’ ADR allocation process;
- Lower Duwmaish Waterway Superfund Site, Seattle, WA (EPA Region X): large, complex sediment site; counsel for PRPs that are not members of the PRP group performing the RI & FS;
- Cooper Drum Superfund Site, South Gate, CA (EPA Region IX): counsel for several PRPs working with others in a group under a CERCLA Section 106 order; developed an allocation amongst the PRPs through negotiation, working with PRPs in the group and outside of it;
- Davis Chemical State Superfund Site, Los Angeles, CA (Cal. DTSC): former solvent recycling facility; common counsel for PRP group that performed RI and prepared RAP; and
- Casmalia Resources Superfund Site, Santa Barbara County, CA (EPA Region IX): disposal site; common counsel for small PRP group and coordinating counsel for larger PRP group; negotiated favorable settlements.
- Contaminated Property Litigation. Mr. van Aelstyn represents both property owners and tenant operators in cost recovery lawsuits regarding contaminated property in both state and federal courts. These have included cases concerning a variety of contaminants (VOCs, petroleum products, etc.) and types of property (shopping malls, industrial and rural properties). One extensively litigated case concerned a dispute between the owner of the fee estate and those holding the oil and gas interests. Mr. van Aelstyn successfully negotiated settlements in all of these matters.
- Brownfields Redevelopment. Mr. van Aelstyn has handled the conversion to productive use of numerous properties with complex environmental issues. He negotiated some of the first prospective purchaser agreements (PPAs) in the country, which concerned the conversion of former disposal sites to retail use.
- Other Environmental Matters. Mr. van Aelstyn represents clients in a wide variety of other environmental regulatory matters, project development matters, transactions, and lawsuits. These have included numerous complex transactions concerning multiple facilities with contamination issues, as well as representing clients in lawsuits concerning enforcement actions under the Clean Water Act and the applicability of U.S. dolphin-safe tuna fishing statutes to U.S. citizens on foreign-flagged vessels.
Other Litigation Engagements
- Real Estate and Commercial Litigation. Mr. van Aelstyn has represented clients in a variety of other litigation matters, including real estate matters (e.g., he has represented a major cell phone tower operator in numerous real estate and regulatory disputes throughout California), and a variety of commercial and contract matters (including disputes involving professional sport franchises).
- International Human Rights Litigation. Mr. van Aelstyn served as lead trial counsel in the matter of Doe v. Saravia, 348 F.Supp.2d 1112 (E.D. Cal., 2004), an Alien Tort Statute case filed against a leader of the death squad that assassinated Archbishop Oscar Romero of El Salvador while he was celebrating mass. The court awarded $10 million in damages and issued the first judicial decision in this case, one that set precedents regarding crimes against humanity and extra-judicial killings. Mr. van Aelstyn served as lead counsel on several U.S. Supreme Court amicus briefs, including Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (the Court’s decision on the Alien Tort Statute expressly cited and adopted the arguments in this amicus brief), Rasul v. Bush, 542 U.S. 466 (2004), and McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991). Mr. van Aelstyn also served for several years on the Board of Directors of the Center for Justice & Accountability.
- Intellectual Property Litigation. Mr. van Aelstyn is currently representing a client in a significant trade secrets case against the City & County of San Francisco in which he won an unprecedented preliminary injunction. He also has served as lead litigation counsel for both plaintiffs and defendants in other lawsuits concerning the alleged misappropriation of trade secrets. Most of these have concerned computer subsystem technology and specialized software. He has litigated these cases, and has both won at trial and negotiated settlements. Mr. van Aelstyn also represented numerous clients in high technology patent litigation matters. These have concerned patents governing handled gas detection devices used for environmental compliance purposes, semiconductors, and telecommunications technology.
- Gonzales v. Oregon, No. 04-623, 546 U.S. 243 (2006). Lead counsel for the terminally ill patients that successfully challenged the federal government’s effort to negate Oregon’s Death with Dignity Act. The U.S. Supreme Court’s decision affirmed the favorable decisions by the lower courts, and the majority’s analysis largely followed that set forth in our Patient-Respondents’ brief. Have represented Compassion & Choices in numerous related matters pertaining to end-of-life care and options since early 1998.
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (the Alien Tort Statute case). Lead counsel on amicus brief filed on behalf of Professors of Federal Jurisdiction and Legal History. The Supreme Court’s decision expressly cited and adopted the arguments set forth in our brief; all nine Justices joined that portion of the decision.
- Rasul v. Bush, 542 U.S. 466 (2004) (the first Guantánamo Bay case). Lead counsel on amicus brief filed on behalf of the Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies.
- McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991) (concerning the U.S.’s interdiction of asylum-seekers on the high seas). Lead counsel on amicus brief filed by the original sponsors of the U.S. Refugee Act and dozens of other members of Congress.
- Fisher v. INS, 79 F.3d 955 (9th Cir. 1996). Lead counsel on Ninth Circuit (en banc) amicus brief filed on behalf of the American Immigration Lawyers Association regarding whether gender persecution could serve as a basis for an asylum claim.
- Baxter v. State of Montana, No. DA-09-0051 (Montana Supreme Court, 2009). Lead counsel on amicus brief filed on behalf of Montana constitutional law scholars, Larry M. Elison and Thomas P. Huff, and Erwin Chemerinsky regarding whether the Montana State Constitution establishes a constitutional right to physician assisted dying.
- In Re: Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, S 138974 & S 138975 (California Court of Appeal). Lead counsel for The Nature Conservancy’s amicus brief in CEQA case concerning habitat restoration and agricultural land use issues.
- University of California Students Assoc., et al. v. Schwarzenegger, et al., S 122032 (California Supreme Court). Represented students and civil rights organizations in suit challenging Governor Schwarzenegger’s tax and budget cuts that bypassed the normal legislative process. While the Court declined to take the case (over a dissent), the suit succeeded in getting certain budget funds reinstated.
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- Not Beyond Challenge: The defeat of Proposition 23 does not spell the end of challenges to California’s emissions trading scheme, Carbon Finance, February 2011
- California Becoming the Locus of Carbon Markets, Executive Counsel Magazine, November 2010
- Offsets Under the American Power Act: Striking a Reasonable Balance, Point Carbon's Carbon Market North America, Guest Commentary, Vol. 5 Issue 19, May 2010
- A Brief Overview of Climate Change Initiatives in the U.S., American Gas Magazine, July 2008
- Global Warming NEPA Challenges Likely to Increase, ABA Public Lands and Resources Newsletter, Vol 9, No. 1, April 2007
LSI Seminars on California Cap and Trade: Getting Ready for the First Auction, “A Legal Perspective on California’s Nascent Carbon Market” (July 2012)
ARCADIS Sediment Management Seminar (February 2012), “The Increasing Overlap of Clean Water Act and CERCLA Liability for Sewer Operators”
ELI Western Environmental Law Boot Camp (January 2012), “Climate Change Litigation: A Snapshot of A Field in Flux”
ELI Western Environmental Law Boot Camp (January 2011), “CERCLA: An Overview of the Process and the Attendant Litigation”
COP 16 México 2010 IETA Side Event (December 2010), “California Leading the Way (Again)”
American Bar Association (ABA) Section of Environment, Energy and Resources (SEER) Fall Conference, Renewable Energy Panel, Moderator (September 2010)
NAEM (The Premier Association for EHS Management) EHS Conference, Corporate GHG Strategies, "Overview of GHG Regulatory Initiatives" (August 2010)
Market Mechanisms for Agricultural Greenhouse Gases (M-AGG) Conference "Climate Change Regulatory Initiatives" (June 2010)
ELI Western Environmental Law Boot Camp, "CERCLA: Substance and Process" (April 2010)
Navigating the American Carbon World Conference, "California Policy Roundup" (April 2010)
The Center for Law, Energy & the Environment, Berkeley Law School, University of California, “The Lead Up to Copenhagen: Offsets and the Parallel Paths to Climate Change Regulation” (October 2009)
British Columbia Business Counsel, “U.S. Climate Change Policy Implications for Canada” (October 2009)
ELI Western Environmental Law Boot Camp, “CERCLA: A Walk Through the Process Leading to the ARC” (April 2009)
REEM ‘09 Conference (Implementation of Renewable Energy in the Emerging Markets of Africa, Latin America and the Caribbean Conference), “Energy Efficiency Programs: Policy Development and Practical Solutions” (April 2009)
Climate Change and the Future of California Environmental Law Conference, Chapman University School of Law, “California’s Clean Air Act Waiver Request: Politics vs. Law, and Science on the Sidelines” (March 2009)
Carbon Credits Conference; The Seminar Group, “Carbon Credits: An Industry Perspective on Emerging Climate Change Regulatory Initiatives” (March 2009)
The Business of Green Media Conference, “Environmental Regulation and ‘Beyond Compliance’: Green Media Supply Chain Trends” (January 2009)
CLE International 2nd Annual California Climate Change Law Conference
AB 32 and Biosolids - Recent Climate Change Developments in California, CASA Spring Conference Land Issue Forum
American Gas Association's 31st Annual Legal Forum
ELI's Fourth Annual Western Boot Camp on Environmental Law
California's Regulatory Response to Climate Change - Implementing AB 32, The California Center for Environmental Law and Policy Spring Conference
Carbon Market Insights
Carbon Offsets as a Tool for Climate Change: A Workshop Examining Their Role
Cap and Trade as a Tool for Climate Change Policy: Design and Implementation, U.C. Berkeley