Nicholas W. van Aelstyn

Environmental Engagements

• Climate Change.  Mr. van Aelstyn advises numerous clients on a host of issues relating to climate change developments, particularly those in California.  He serves as counsel to the Carbon Offset Providers Coalition, the leading industry task force in this area.

• 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’s also handled internal PRP group issues such as allocation disputes. 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 Creek Superfund Site, San Francisco, CA (EPA Region IX) Region IX’s only active sediment site; common counsel for the PRP group;
  • 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;
  • Cooper Drum Superfund Site, South Gate, CA (EPA Region IX), counsel for three PRPs working with other PRPs under a CERCLA Section 106 order and developing an ADR allocation process;
  • 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 settlements; and
  • Davis Chemical State Superfund Site, Los Angles, CA (Cal. DTSC), former solvent recycling facility; common counsel for PRP group at that performed RI and prepared RAP.

• 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.

Appellate Engagements

• 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.