Environmental Litigation

Overview

Beveridge & Diamond, P.C.’s environmental litigation practice complements its nationally known, full service environmental counseling practice. Our environmental litigation practice covers every aspect of Federal and State environmental law. Our cases involve litigation over rulemaking, permitting, enforcement, hazardous waste, toxic substances, insecticides and fungicides, superfund and natural resources damages liability, contribution, land use and contaminated property disputes, and air and water issues. We have been litigating environmental cases since 1974. Approximately half of the Firm’s attorneys handle environmental litigation. Our deep familiarity with the effects of environmental regulation on industrial, commercial and governmental enterprises enables us to frame approaches to litigation that protect the competitive or financial strength and operational flexibility of our clients.

Full Description

Beveridge & Diamond’s environmental litigation practice complements its nationally known, full service environmental counseling practice. Our environmental litigation practice covers every aspect of Federal and State environmental law. Our cases involve litigation over rulemaking, permitting, enforcement, hazardous waste, toxic substances, insecticides and fungicides, superfund and natural resources damages liability, contribution, land use and contaminated property disputes, and air and water issues.

Our objective in environmental litigation is to win cost-effectively. When a regulatory agency is involved we recognize that environmental litigation can be part of a larger picture involving on-going relationships with the agency. We handle such cases with those relationships in mind. We also recognize that the outcome of an environmental case can help our industry clients gain or maintain their competitive edge. At the outset of each case we set the objectives with our client and then order our efforts and strategies to achieve those objectives as soon as we can within the budget allocated. Our litigators partner with the Firm’s and our client’s environmental lawyers and experts to match and master the government’s litigation team.

Our rulemaking litigation efforts often begin during the comment period on proposed regulations because the comments become an essential part of the evidence in the administrative record to convince the reviewing court that the regulation is arbitrary and capricious. Our Firm’s substantive environmental expertise gives our litigators a leg-up in using comments strategically; and our litigators’ appellate advocacy skills enable them to present our cases persuasively to the courts reviewing agency actions.

Agencies often seek unwarranted provisions in environmental permits. Our litigators know how to deal with such overreaching. They also know how to defend against government actions to enforce environmental regulations or permits and to seek monetary penalties. Many of our attorneys were once involved in creating or enforcing government requirements, and their knowledge, together with the Firm’s substantive knowledge of environmental programs, is a potent defense when coupled with our litigators’ advocacy skills.

That same superior knowledge of environmental law and policy enables our litigators to effectively represent buyers or sellers of property in disputes over environmental liabilities associated with those properties; parties targeted for cleanup costs and natural resource damages in Superfund cases; and private parties in litigation over contribution or allocation issues.

Noteworthy

Rulemaking

We were the first law firm to successfully challenge a decision to list a waste as hazardous under RCRA. American Mining Congress v. EPA. We were also actively involved in the only other case that resulted in overturning a hazardous waste listing. Dithiocarbamate Task Force v. EPA.

In a landmark decision, we brought a successful rulemaking challenge that compelled EPA for the first time to use the best available science in setting health-based standards. Chlorine Chemistry Council v. EPA.

We saved billions of dollars for major industries by defeating an EPA rule that would have required increased treatment of conventional pollutants. American Paper Inst. v. EPA.

Permits

We defeated EPA’s “potential to emit” rule under Title V of the CAA. This victory gives facilities greater opportunity to avoid burdensome permitting requirements. Clean Air Implementation Project v. EPA.

We defeated an NPDES discharge permit that imposed water quality standards at the point of discharge rather than at the edge of a mixing zone. Puerto Rico Sun Oil Co. v. EPA.

We defeated the New Jersey Department of Environmental Protection’s request for preliminary injunction against Southdown, Inc. for an alleged PM-10 NAAQS violation, TSP permit emission limit violation, and unpermitted fugitive emissions. NJDEP v. Southdown, Inc.

Enforcement

We helped secure a statute of limitations that is shorter than the one sought by EPA for enforcement of civil fines, penalties or forfeitures in administrative proceedings under the Toxic Substances Control Act. 3M Co. v. Browner.

We reduced the penalty demanded by EPA and the Department of Justice from nearly $2 million to $320,000, helped prepare an innovative Supplemental Environmental Project, and convinced EPA to drop its demand for several millions of dollars in further pollution controls. United States v. Southdown Inc.

We convinced EPA to withdraw its complaint and demand for over $14 million in penalties. In re General Motors Corp.

Property Disputes

After ten years of litigation and a significant adverse ruling, we were retained two months before trial to defend a $10 million fraud and breach of contract claim relating to the sale of property. We raised new legal issues and discovered evidence that undermined the plaintiff’s claim. On the second day of a jury trial the plaintiff settled for a substantial reduction in its demand. Confidential Client.

We recovered a large percentage of the plaintiff’s remediation costs caused by the failure of a commercial tenant to remediate contamination and remove debris from leased premises. Sun Co. (R&M) v. Mallinckrodt Group.

We won a jury defense verdict in a $4 million action for fraud, misrepresentation, and breach of contract by a real estate development firm that alleged that undisclosed subsurface oil storage structures and associated contamination destroyed its development opportunity and put it out of business. The Petra Group, Inc. v. Southern Pac.Transp. Co.

Superfund/Contribution

As common counsel to a settling PRP group, we sued and obtained settlements from over 70 non-participating PRPs, and we negotiated settlements with Federal and State authorities. Berlin & Farro Participating Cos. v. Berlin.

At the Pfohl Brothers Landfill Superfund Site near Buffalo, New York, we secured rulings from the District Court (i) granting our client summary judgment on its CERCLA contribution claims based on a complex successor liability issue and (ii) defeating a Daubert challenge to our expert’s opinion on the presence of CERCLA hazardous substances in a PRP’s waste. Pfohl Steering Committee v. BFI.

In a suit over the costs of cleaning up a landfill, we established our client’s right to indemnity from the landfill operator and its lack of responsibility for radioactive waste disposed by a company in which our client was the majority shareholder. As a result, we were able to negotiate a favorable settlement through ADR. Waste Management, Inc. v. Aerospace America, Inc.