B&D regularly represents clients in significant environmental and natural resource appellate litigation. Since 2012, B&D has appeared in more than 200 appellate cases across all 13 Federal Circuit Courts of Appeals and in state appellate courts across the U.S. We also represent clients directly and as amici in landmark cases before the U.S. Supreme Court, in petitions for interlocutory review, and we have a robust administrative litigation practice before the U.S. Court of Appeals for the D.C. Circuit.

Our work involves all major federal environmental statutes such as the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation & Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA/Superfund), and the National Environmental Policy Act (NEPA), as well as state environmental laws and common law claims. From initial case filing through trial through appeal, our comprehensive litigation capabilities and subject matter depth ensure that we can effectively navigate the most challenging legal landscapes to protect our clients' interests.

Our distinguished record of appellate court victories, demonstrating our expertise in navigating complex legal challenges and achieving favorable outcomes for our clients, is illustrated by the representative matters listed below.

Representative Matters

United States Supreme Court

Victory in Significant CWA Case. On March 4, 2025, the U.S. Supreme Court ruled in favor of our client, the City of San Francisco in City & County of San Francisco v. Environmental Protection Agency (EPA). In a 5-4 decision, the Court held that the CWA does not empower EPA or authorized states to impose prohibitions in National Pollutant Discharge Elimination System (NPDES) permits that make permitholders responsible for the overall quality of waterbodies. Instead, the Court ruled, EPA and authorized states have a duty to specify the concrete steps permitholders must take to protect water quality and comply with their permits. This landmark ruling will help ensure that regulated parties have clear guidance on what they must do to comply. B&D represented San Francisco before EPA’s Environmental Appeals Board, the U.S. Court of Appeals for the Ninth Circuit, and the Supreme Court.

Supreme Court Emergency Docket Appeal and D.C. Circuit Challenge to EPA Enforcement of Air Toxics Rule. Serving as Special Assistant Attorneys General on behalf of the State of North Dakota, B&D sought the stay of an EPA rule which reduces the Mercury and Air Toxics Standards for coal-fired power plants by 66-70%, under Section 112 of the CAA. We filed for an immediate stay pending review in the D.C. Circuit on the Supreme Court’s Emergency Docket. North Dakota v. EPA, Case No. 24A180 (2024) (related cases: 24A178, 24A179, 24A186, 24A197, 24A199, 24A203).

Supreme Court and D.C. Circuit Challenge to CAA and Federal “Good Neighbor Plan.” B&D represents a major oil and gas company in a D.C. Circuit challenge to EPA’s recently finalized Federal “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards. In Ohio v. EPA, 603 U.S. 279 (2024), we secured Supreme Court remand of the matter, to the D.C. Circuit and enforcement stayed. Enbridge (U.S.) Inc. v. EPA, No. 23-1202, D.C. Cir. (pending).

Amicus on behalf of National Association of Manufacturers in Atlantic Coast Pipeline Litigation. In a case evaluating the U.S. Forest Service’s authority to grant rights-of-way under the Mineral Leasing Act of a natural gas pipeline that would traverse the Appalachian Trail 600 feet below ground, B&D filed a successful amicus brief on behalf of the National Association of Manufacturers and twenty other trade associations, supporting reversal of the U.S. Court of Appeals for the Fourth Circuit’s novel interpretation of two federal statutes to bar the pipeline project. The amicus brief emphasized the significant collateral effects of the Court of Appeals’ opinion that would divest the U.S. Forest Service of jurisdiction to grant rights-of-way through Forest Service lands. The Fourth Circuit ruling would, in the words of Chief Justice Roberts during the oral argument, create an “impermeable barrier” to natural gas pipelines on the East Coast. Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, 590 U.S. 604 (2020).

Amicus on behalf of NACWA in Maui CWA Case. B&D filed an amicus brief in the U.S. Supreme Court on behalf of the National Association of Clean Water Agencies (NACWA). The brief urged the Supreme Court to reverse a Ninth Circuit decision holding that the CWA requires NPDES permits for releases of pollutants from discrete sources that are subsequently conveyed to surface waters by nonpoint sources, like groundwater. The City of New York, the City and County of San Francisco, and the Metro Wastewater Reclamation District (serving metropolitan Denver) joined the brief. The brief shows the Court how the Ninth Circuit failed to properly interpret the CWA, while also highlighting how affirming the lower court’s decision would pose significant difficulties for implementing the CWA’s permitting program. The brief further explains how the Ninth Circuit’s misapplication of the CWA will adversely impact and discourage the continued use of environmentally beneficial wastewater and stormwater management practices employed by NACWA’s members nationwide. County of Maui v. Hawai’i Wildlife Fund, 590 U.S. 165 (2020).

United States Courts of Appeals

Amicus on Greenhouse Gas Emissions and Particulate Matter Standards. We successfully represented a trade association as amicus supporting EPA’s defense of its aircraft engine greenhouse gas emissions (GHG) and particulate matter (PM) standards, which had been adopted consistent with internationally negotiated standards. California v. EPA, 72 F.4th 308 (D.C. Cir. 2023).

Summary Judgment in First Impression D.C. Circuit NEPA Litigation. On behalf of the State of North Dakota, we secured a unanimous ruling from the D.C. Circuit allowing the design of a $250 million water treatment plant to proceed. In an important ruling of first impression, the D.C. Circuit held that completion of the decision-making process under NEPA constitutes a changed circumstance under Rule 60(b)(5) where an injunction was issued based on a prior NEPA review that was found to be legally deficient. Province of Manitoba v. Zinke, 849 F.3d 1111 (D.C. Cir. 2017). In subsequent proceedings in the District Court, we secured summary judgment for North Dakota. Gov't of Man. v. Mo. ex rel. Hawley, 2018 U.S. App. LEXIS 37307 (D.C. Cir. 2018).

Solid Waste Definition. We represented a large mining organization as an intervenor-respondent in litigation involving EPA’s 2015 regulatory definition of solid waste, presenting a successful oral argument against the environmentalists’ challenge to EPA’s decision not to expand regulation to 32 existing RCRA regulatory exclusions. American Petroleum Institute v. EPA, No. 09-1038 (D.C. Cir. July 7, 2017).

Complete Defense Jury Verdict Upheld on Appeal to 1st Circuit in $12.6 Million Environmental Contamination Trial. Litigators in B&D’s Boston office secured a no-liability verdict for Siemens Industry, Inc. in a multiparty cost recovery case in the federal court of Boston, Massachusetts. After a six-week trial, a federal jury agreed that the firm’s client, one of several defendants, had no liability and no share in an equitable allocation for the costs of cleaning up the contamination under the Massachusetts equivalent of the federal Superfund law for the $12 million cleanup of PCBs that had been discharged into a Boston waterway. On appeal, the U.S. Court of Appeals for the First Circuit upheld the trial verdict. The complex multiparty action raised issues of causation, successor liability, protections for innocent parties who are current owners, the sufficiency of expert evidence to tie historical operations to contamination, and the award and collection of attorney’s fees and costs under Massachusetts Chapter 21E, the state equivalent of CERCLA. Thomas & Betts Corp. v. New Albertson’s Inc., 915 F.3d 36 (1st Cir. 2019).

CERCLA Litigation. B&D defended a major chemical company in a CERCLA action, first at trial and later on appeal to the U.S. Court of Appeals for the Second Circuit. The action was brought by the current owner of a chemical manufacturing facility seeking declaratory relief and allocation associated with PCB contamination at the plant. The appeal arose from a the dismissal of all of the Plaintiff’s remedial cost claims by the US District Court for the Northern District of New York based on certain statute of limitations issues under CERCLA that had not previously been decided in the Second Circuit (that the limitations period ran before plaintiff’s claim first accrued), and also addressed on cross-appeal whether future unknown removal costs could properly be allocated. MPM Silicones, LLC v. Union Carbide Corp., 966 F.3d 200 (2d Cir. 2020).

Baltimore CAA Litigation. The City of Baltimore approved a 10-year contract extension with B&D client Wheelabrator Baltimore to continue operation of a waste-to-energy facility that processes much of Baltimore and the surrounding jurisdictions’ solid waste, producing electricity and steam. U.S. District Court Judge George Russell III found that the Baltimore CAA – which sought to impose onerous new pollution limits on the facility – conflicted with and undermined the state's Title V permitting program for air pollution control. The court also ruled that the City’s ordinance second-guessed the federal and state scheme for regulating air emissions. Wheelabrator Baltimore, L.P. v. Mayor & City Council of Baltimore, 2020 U.S. App. LEXIS 35007 (4th Cir. Nov. 4, 2020).

Precedent-Setting CWA Citizen Suit Litigation. B&D secured a unanimous published opinion from the U.S. Court of Appeals for the Seventh Circuit rejecting a citizen suit challenge under the CWA. B&D represented the Metropolitan Water Reclamation District of Greater Chicago (MWRDGC) in a case brought by several environmental groups challenging the consent decree that the District had negotiated with the U.S. that provides for multibillion-dollar investments to improve wastewater collection and treatment in the Chicago area. The opinion establishes an important precedent limiting the ability of private litigants to challenge settlements reached with federal and state enforcement authorities on complex environmental issues. United States v. MWRDGC, 792 F.3d 821 (7th Cir. 2015).

Federal Land Use Litigation. B&D successfully represented a large mining organization in D.C. Circuit litigation regarding proposed amendments to U.S. Department of Interior requirements for environmental assessments of federal coal leasing on federal lands. After defeating the challenge in the D.C. Circuit, we continued our representation in litigation brought against the amendments in the Ninth Circuit. The cOURT ruled in our client’s favor. Citizens for Clean Energy v. U.S. Department of the Interior, 2024 U.S. App. LEXIS 3953 (9th Cir. Feb. 21, 2024).

State Appellate Courts

PFAS Rulemaking Challenge in Michigan. B&D represents 3M Company in ongoing challenges to Michigan’s rulemaking setting maximum contaminant levels for certain PFAS in drinking water. In November 2022, the Michigan Court of Claims invalidated Michigan’s maximum contaminant levels for seven PFAS, ruling in 3M’s favor and finding that the State failed to analyze the full costs of the rule. The State appealed. The matter was briefed for the Court of Appeals, with oral argument held in July 2023. In August 2023, the Michigan Court of Appeals affirmed the lower court decision, again finding the State failed to analyze the full costs of the rule. The State again appealed to the Michigan Supreme Court, which remanded the matter to the Court of Appeals on questions of mootness. 3M Co. v. Dep't of Env't, Great Lakes, & Energy, No. 166189, 2025 WL 737351, at *1 (Mich. Mar. 7, 2025).

New York Odor Nuisance Cases. B&D plays a leading role in defending Waste Connections, Inc. and its subsidiaries against nuisance odor lawsuits across the U.S. In the past year, B&D has secured the dismissal of two putative class action lawsuits in New York before New York’s appellate courts:

• Davies v. S.A. Dunn & Co., LLC, 200 A.D.3d 8 (3d Dep’t 2021), leave to appeal denied, 38 N.Y.3d 902 (2022),
• Duncan v. Cap. Region Landfills, Inc., 198 A.D.3d 1150 (3d Dep’t 2021), leave to appeal denied, 38 N.Y.3d 902 (2022),

These decisions advanced older precedent to clarify limitations on environmental tort claims and class actions in New York.

Ethics and Accountability. Putative class action alleging nuisance, negligence, and gross negligence claims against the Seneca Meadows Landfill in upstate New York based on allegations of noxious odors from the landfill. B&D exposed significant ethical violations by plaintiffs’ counsel, including improper client solicitation and attorney advertising practices, and secured a ruling from the Fourth Department that their attorneys had violated New York ethical rules. Following the decision, B&D filed a motion for summary judgment, and plaintiffs voluntarily dismissed the case before opposing the motion. Britton v. Seneca Meadows, 203 A.D. 1583 (New York App. Div., 4th Dept. 2022), dismissed, 2022 WL 1750476 (Sup. Ct. Seneca Co. 2022).

Successfully Obtaining Interlocutory Review in Washington. B&D represented Frontier Industries, a lumber and building products company, in litigation against the Port of Anacortes over alleged contamination cleanup costs under Washington’s Model Toxics Control Act. The matter involved complex legal and technical issues involving alleged contamination of marine sediments by the breakdown products of wood debris. Our team successfully obtained interlocutory review before the Washington Court of Appeals Division 1, where the court agreed with our position on the issue on appeal. Port of Anacortes v. Frontier Industries, Inc., No. 78628-8-I (Wash. App. Div. 1).

California Nuisance Cases. B&D has played a leading role in one of California’s longest-running nuisance cases. This case addresses when a product manufacturer can be liable for a nuisance created by a user of its product. We represent a national solvent manufacturer in this case, in which the City of Modesto seeks to have PPG and Dow pay for or conduct groundwater remediation at dozens of dry-cleaning sites in the City. PPG and Dow manufactured some of the dry-cleaning solvents released at the dry-cleaning sites. In the first trial phase of the case, the court ruled that the City was entitled to no relief against PPG. The appeals court remanded portions of the case for retrial, finding that the trial judge had applied the wrong standard for causation on nuisance liability. B&D argued an interlocutory appeal in the case that produced the leading California decision on the intersection of nuisance and product liability doctrines. City of Modesto Redevelopment Agency v. Superior Court, 119 Cal. App. 4th 28 (2004). The most recent appeal decision found fault with the trial judge’s application of that standard. City of Modesto v. Dow Chem. Co., 19 Cal. App. 5th 130 (2018).

Unanimous Pennsylvania Supreme Court Ruling Dismissing Environmental and Toxic Tort Claims Relating to Land Application of Biosolids. B&D secured a unanimous ruling from the Supreme Court of Pennsylvania that will have national influence in deterring tort claims. The case was a mass tort in which 34 Plaintiffs sought millions of dollars in damages for nuisance, negligence and trespass for the land application of biosolids (treated sewage sludge) on a farm near Plaintiffs’ homes. The Court held that land application of biosolids is an agricultural activity shielded from tort claims by the statute of repose in the Pennsylvania Right to Farm Act (RTFA). The Supreme Court also ruled that judges, not juries, should determine as a matter of law whether a statute of repose applies to bar a tort claim. The Court’s opinion reversed the Pennsylvania intermediate appellate court and resolved critical questions regarding the division of labor between judge and jury, the scope of the RTFA, and the use of biosolids as fertilizer on farms. the Court unanimously held that (1) application of the RTFA’s statute of repose presents a legal question that only a judge may resolve and (2) biosolids application is a “normal agricultural operation” protected by the RTFA. Gilbert v. Synagro, 131 A.3d 1 (Pa. 2015).

Texas Pollutant Discharge Elimination System Permitting. B&D secured a favorable ruling in Texas’s Third Court of Appeals, successfully defending a Texas Pollutant Discharge Elimination System permit for a power plant on behalf of Luminant. The appellate court’s opinion, filed on June 6, 2014, upholds a ruling secured by the Firm in a Texas state district court in January 2012 and is a case of first impression in Texas concerning the requirements for “cooling water intake structures” for existing power plant facilities. Robertson County v. Tex. Comm'n on Env’t Quality, 2014 Tex. App. LEXIS 6058 (Tex. App. June 6, 2014).

Precedent-Setting CEQA Litigation. B&D won a ruling in the Court of Appeal of California that allowed our client’s landfill expansion project to proceed over the objections of environmental groups that sued to vacate the landfill’s permit and compel a smaller, less profitable expansion plan. The published and unanimous decision of the appellate court reversed a trial court ruling that had sided with the plaintiffs. The Court of Appeal’s opinion established important new precedent under the California Environmental Quality Act (CEQA) that specific evidence of profit and loss from a smaller project is not necessary for an agency to determine that the smaller project is not feasible for purposes of the CEQA alternatives analysis. The precedent helps project proponents both before California agencies conducting CEQA reviews and in the defense in court of project approvals. Sprawldef v. San Francisco Bay Conservation & Dev. Comm'n, 2014 Cal. App. Unpub. LEXIS 3007 (Cal. Ct. App. Apr. 19, 2014).

Trial and Appellate Victories for Solid Waste Facilities Client. B&D secured at trial, and upheld on appeal in the New York State Appellate Division, dismissal of a petition to annul a Town Board resolution authorizing the town to enter into a 25-year solid waste facilities operating agreement with our client, a major solid waste company. We persuaded the trial and appellate courts to reject the claim that the agreement was equivalent to a lease and therefore was subject to a permissive referendum under state law. Conners v Town of Colonie, 108 A.D.3d 837 (N.Y. App. Div. 2013).

Tort and Universal Commercial Code Claims. After a three-week trial, the Firm secured a defense judgment rejecting a $5,000,000 tort and UCC claim that drinking water supplied to the Plaintiffs caused pinhole leaks in five large apartment buildings. The case centered on extensive expert testimony on water chemistry, water distribution and corrosion science. On appeal, we secured a unanimous published decision from the District of Columbia Court of Appeals affirming the trial court ruling in favor of our client. Cormier v. D.C. Water & Sewer Auth., 959 A.2d 658 (D.C. Ct. App. 2008).

Administrative Appeals & Additional Rulemaking Challenges

RTR Rules. B&D represents the American Chemistry Council (ACC) on challenges to three Risk and Technology Review (RTR) rules—the off-site waste recovery operations National Emission Standards for Hazardous Air Pollutants (NESHAP); the “3P” NESHAP (Group IV polymers and resins, pesticide active ingredients production, and polyether polyols production); and the generic and amino/phenolic resins NESHAP. As part of these challenges, we first filed lengthy comments on these three rules. We also represent ACC and AFPM on a challenge to the ethylene production NESHAP.

Miscellaneous Organic NESHAP. B&D also represents ACC on the Miscellaneous Organic NESHAP (MON RTR). We assisted ACC with comments on the rule, and we are currently litigating in the D.C. Circuit the validity of EPA’s reliance on the ethylene oxide IRIS value in the rule.

RICE NESHAP. B&D represented an energy demand response provider and other energy sector interests in successfully convincing EPA to revise the original reciprocating internal combustion engines (RICE) NESHAP to allow more hours for demand response. We then continued to represent these entities in the subsequent D.C. Circuit challenge.

Area Source & Major Source Boiler Maximum Achievable Control Technology. B&D assisted in filing comprehensive comments on the Area Source and Major Source Boiler Maximum Achievable Control Technology (MACT) (Subparts DDDDD and JJJJJJ) and the New Source Performance Standards and Emissions Guidelines for commercial and industrial solid waste incineration. When the rules were adopted, we both challenged objectionable provisions of the rules and intervened to support EPA in challenges to the rules brought by Sierra Club and other environmental groups in the D.C. Circuit. U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016).

Ferroalloy MACT. We represented a ferroalloy manufacturer in challenging the Ferroalloy MACT, ultimately reaching a settlement that modified key provisions of the rule. Felman Production, LLC v. EPA, No. 17-1093 (D.C. Cir. 2017).