Below is a sample of B&D's litigation experience:
- Multi-plaintiff Ethylene Oxide Toxic Tort Litigation. We defend two of the country’s largest chemical manufacturers in two separate toxic tort actions, each brought by plaintiffs who allege cancer caused by exposure to ethylene oxide (EO) emissions from our clients’ EO manufacturing plants. B&D litigators and regulatory attorneys are key strategists and players in this potentially multi-million dollar set of cases that could have long-range implications for the EO and broader chemical manufacturing sectors.
- Landfill Odor Nuisance Class and Mass Action Defense. New York’s highest court affirmed dismissals of putative class actions in two cases where the proposed classes encompassed thousands of residents and asserted claims for nuisance and negligence from alleged odors emanating from two landfills owned by a client. This case affirmed to two major published decisions in the New York Appellate Division—also litigated by B&D—that narrowed the scope of negligence and public nuisance claims in the state. The American Lawyer awarded B&D litigators runner-up "Litigator of the Week" for these wins. Other successes include defeating remand motions of more than 600 mass action plaintiffs and four putative class actions in the U.S. District Court for the Eastern District of Louisiana, defeating class certification in an odor nuisance suit in the Eastern District of Pennsylvania, and obtaining dismissal of two additional putative class actions alleging nuisance odors before class certification practice.
- High Stakes Flaring Settlements. We favorably settled three high-stakes enforcement actions brought by DOJ and EPA against major chemical manufacturers regarding alleged violations of Clean Air Act regulations governing the flaring of excess natural gas. Under EPA’s national Flaring Initiative, the U.S. had sought nearly $1 billion in injunctive relief and penalties from these companies. We resolved these matters for fractions of the amounts initially sought.
- Superfund Mega-Site Defense. We serve as the co-chair in ADR proceedings for the largest Superfund site west of the Mississippi. The site involves about 250 parties, ongoing cleanup work and negotiations, federal litigation, natural resource damages claims, and a nearly 100-party non-judicial allocation process. We lead the group in developing defenses and negotiating with the EPA over an aquatic sediments cleanup estimated to cost over $2 billion.
- PCB Contamination Defense. After a six-week trial, a federal jury decided that our client, a global manufacturer and one of 18 defendants, had no liability for the $12 million cleanup of PCBs that were discharged into a Boston waterway. The U.S. Court of Appeals for the First Circuit upheld the decision, affirming the jury’s verdict and the trial court’s judgment in all respects.
- High Profile Safe Drinking Water Act (SDWA) Citizen Suit Defense. We successfully represented the City of Newark, NJ in defense of a federal citizen suit under the SDWA (and the associated Lead and Copper Rule) brought by NRDC after Newark allegedly exceeded the federal lead action limit on lead in drinking water in 2017. This precedent-setting settlement will shape future interpretation of the federal Lead and Copper Rule and likely ends environmental group efforts to duplicate throughout the country the legal claims brought to bear in Flint, MI. The American Lawyer recognized the B&D team as “Litigators of the Week” for this outcome.
- Challenging EPA’s Interim Health Advisories for PFOA and PFOS. B&D filed a petition on behalf of the American Chemistry Council (ACC) challenging EPA’s Interim Health Advisory Levels for PFOA and PFOS. ACC issued a press release explaining its support of drinking water standards for PFAS based on the best available science, and hopes the firm’s challenge “leads to science-based policies that are protective of human health and the environment.” This closely watched case could have significant implications for industry and the EPA’s power.
- Multi-District Groundwater Contamination and Product Liability Litigation. We serve as national counsel for all of our client’s litigation related to the presence of the gasoline component MTBE in water supplies. To date, our work has included over 100 lawsuits brought by states, municipalities, public water systems, and private well owners, including putative class action claims, the majority of which B&D helped its client and the industry settle. There are currently three active cases brought by sovereign plaintiffs. The damages claimed by the various plaintiffs total in the billions of dollars.
- Novel CWA Citizen Suit Theory. We defended a freight railroad in a case in which plaintiffs sought to expand the reach of the Clean Water Act (CWA) to fugitive coal dust from railcars. In this case of first impression, Plaintiffs sought to limit the rail transportation of coal by seeking CWA penalties for alleged fugitive coal dust from all rail cars and trains. The statutory maximum penalty under the CWA for the allegations in the complaints would have been in excess of $4 trillion. After only a week of trial, we reached a settlement for $1 million, a non-binding coal car study, and no admission of liability.
- Texas Attorney General Air Enforcement Cases. We favorably settled a multi-year air civil enforcement case the Texas Attorney General brought against a major manufacturer based on referral from the Texas Commission on Environmental Quality of a variety of alleged violations (including numerous emissions events). The OAG originally sought a multi-million dollar penalty and tens of millions of dollars in potential injunctive relief. B&D resolved this matter for nearly half the initially proposed penalty and injunctive relief costing magnitudes less than the original proposal. The firm represents major manufacturers in four similar OAG air cases.
- Dismissal of Perchlorate Contamination Citizen Suits/Putative Class Action. We prevailed on a motion to dismiss on primary jurisdiction grounds in a putative class action brought by approximately 100 property owners alleging perchlorate contamination of drinking water.
- First Trial Focused on the Benefits and Safety of Recycling Biosolids. Following a two-week bench trial prosecuted by B&D, we secured a win for the City of Los Angeles, striking down a neighboring county’s biosolids ban on constitutional grounds. B&D previously had secured a preliminary injunction against the ban, affirmed on an interlocutory appeal, that allowed the farm to continue to use biosolids to grow crops. At trial, we presented numerous fact witnesses and scientific experts to establish the environmental benefits of applying biosolids to farmland.
- First-Impression Injection Well Litigation. We won the dismissal of a path-breaking citizen suit filed against a major oil and gas company in federal district court in Oklahoma. The Sierra Club’s lawsuit under the Resource Conservation and Recovery Act (RCRA) alleged that injection of oil and gas production wastewater in underground wells causes earthquakes that endanger the public, and sought major reductions in the underground injection of said wastewater, earthquake monitoring, and reinforcement of structures.
- Pipeline Right-of-Way Upheld by Supreme Court. We successfully represented an amici coalition of over 20 trade associations in a U.S. Supreme Court appeal upholding the authority of the U.S. Forest Service to issue an oil and gas pipeline right-of-way beneath the Appalachian Trail.
- Pesticide Litigation and Arbitrations. We represent the world’s largest chemical and crop protection companies on high-stakes litigation and rulemaking, including arbitrations to compel generic pesticide companies to pay for a portion of environmental and health data mandated by federal pesticide law. We have obtained judgments for clients totaling over $100 million.
- Successful Settlement in Alleged Vapor Exposure Case. We represented a major utility in litigation in the District of Columbia Superior Court alleging that vapors from buried manufactured gas plant waste caused multiple adult plaintiffs, who had used a nearby recreational area, to contract leukemia. Plaintiffs alleged $110 million in damages. We achieved a highly favorable settlement for our client early in discovery after we deposed the lead plaintiff and prepared rebuttal expert opinions.
- NEPA Litigation for Major Drinking Water Project. We won approval of the National Environmental Policy Act (NEPA) Supplemental Environmental Impact Statement for a $200 million state water supply project, including resolution of novel issues relating to the NEPA process.
- Insurance Coverage Litigation. We obtained a favorable settlement for an electronics manufacturer from its professional liability insurer for costs incurred in defending a claim by the State of New York relating to implementation of a statewide wireless network for emergency communications.