Environmental Law

This group assists private and governmental clients in defending civil and administrative enforcement actions by environmental agencies, perfecting and enforcing water rights, ensuring just compensation for regulatory and physical government takings, and conducting effective due diligence during real estate transactions and development projects. We also help clients avoid regulatory pitfalls and implement practical solutions to environmental problems, leveraging decades of combined hands-on experience in the courtroom, boardroom, and hearing room.

Experience

Our lawyers have many years of broad experience in many areas of environmental and natural resources law, with highly specialized experience in the following key areas.

Water Law

We represent individuals, private companies, and governmental agencies in water rights and water resources matters. Our clients include ranchers, farmers, developers, urban water suppliers, and irrigation and reclamation districts in California and the western United States. In times of drought, we advise clients regarding water curtailment and conservation orders and regulations. We also adjudicate groundwater rights under the Sustainable Groundwater Management Act and surface water rights before agencies and federal and state courts, work with federal water masters under existing federal river decrees, acquire water rights from states, and advise clients regarding the reconveyance of appropriative and riparian rights. Our trial lawyers have defended and prosecuted class action lawsuits to protect existing water rights and have litigated Petitions for Review before the State Water Resources Control Board.

We are in an era of restricted water resources, and we understand that the highly specialized experience our team provides is critical to clients’ continued operation and success. Our strong relationships and open lines of communication with water enforcement agencies (federal, state, and local) allow us to resolve cases quickly and cost-effectively. Our team also assists clients with water pollution compliance and enforcement defense, handling cases involving CWA Section 404 permits for dredging and filling in waters of the United States, actions by the U.S. EPA and state agencies to enforce water pollution permits and regulations (NPDES, pretreatment and stormwater), and citizen suits alleging permit or statutory violations.

Environmental Investigations and Enforcement Defense

We defend and conduct environmental investigations for companies and individuals facing potential enforcement. Our team includes environmental experts with critical knowledge of methods and tactics employed by state and federal enforcement agencies. Our team also includes is a former head of environmental law at the U.S. Department of Defense, who worked closely with the U.S. Department of Justice on environmental enforcement actions, and who has defended many environmental prosecutions.

Our team has defended hundreds of civil and administrative environmental enforcement actions, whether initiated by government officials or citizens groups. We quickly evaluate the strength of the enforcement case and give pragmatic advice on whether to fight or settle, recognizing that the choice depends in large part on evidentiary issues, business realities, and the estimated cost of defense.

Cleanup and Development of Contaminated Properties

Our work in this area includes sites listed on the U.S. EPA’s National Priorities List, former military Superfund facilities, properties impacted by solvents and vapor intrusion, sites with leaking underground storage tanks, sites impacted by dry cleaning facilities, and many others. We have selected consultants and contractors, overseen legal aspects of the cleanup, and negotiated closure with regulatory agencies. We also advise clients on Brownfields issues, including strategies for using creative legal avenues to manage and limit liability. Working closely with clients, we develop an overall strategy that shifts liability where possible and obtains funding for the cleanup, whether from third parties responsible for the contamination, government cleanup funds, or insurance proceeds.

Property Transactions

We work closely with developers, landowners, investors, and lenders to reduce or eliminate environmental liability associated with real estate transactions. Because environmental cleanup and removal costs are often unknown, and have the potential to be greater than the value of the property, rigid approaches to addressing environmental risks can quickly end a deal. By implementing creative legal solutions to address environmental liability, we have protected our clients’ interests while successfully closing hundreds of deals involving properties with environmental issues.

To do so, we quickly identify, evaluate, and resolve potential hazardous materials, water availability, wetlands, endangered species, traffic, noise, and construction issues in real property development and acquisitions. This includes participating in the client’s due diligence by analyzing existing environmental documents and Phase 1 Environmental Assessments and, if appropriate, overseeing and analyzing Phase 2 Assessments and other investigations. Where environmental issues arise, we negotiate and document the acquisition and development transactions to minimize and control the client’s risk.

Air Quality

Our lawyers help small businesses and large corporations comply with complex air quality regulations at the local, state, and federal levels. This includes enforcement defense, counseling and permitting assistance, litigation, and advocacy in regulatory and legislative forums. We advise clients regarding California’s mobile and stationary source regulations, the federal Clean Air Act, and California’s greenhouse gas emissions regulations (AB 32). When enforcement actions occur, we respond to alleged violations by drawing on our successful resolution of numerous enforcement actions brought by local air districts, the California Air Resources Board, the U.S. EPA, and the U.S. Department of Justice. We also advise on the disclosure requirements for greenhouse gas emissions under SB 253 and SB 261.

Proposition 65

Our work in this area began at the Proposition’s inception in 1986. We assist manufacturers, distributors, retailers, and trade associations in litigation, counseling, and negotiations both inside and outside California.

We recognize that the response to a Proposition 65 notice or lawsuit depends first and foremost on a client’s business objectives, and we develop defense strategies to help clients achieve those objectives. We have handled some of the most significant Proposition 65 cases in California, including the first case heard by the California Supreme Court and the first trial addressing testing methods for lead. With success at trial and on appeal, we often resolve Proposition 65 cases without litigation, working with clients to develop proactive compliance strategies and to avoid the risk of litigation entirely.

Compliance Counseling, Permitting Assistance, and Regulatory Advocacy

We work with clients and technical consultants to assess and improve compliance with environmental laws and regulations governing water quality, air quality, and hazardous materials and waste. We have conducted numerous assessments and audits, producing user-friendly products rather than long legal documents and memoranda. We also assist clients in obtaining the local, state, and federal permits necessary to run their operations. In the water quality area, these include NPDES point source discharge and stormwater permits. We also represent clients in obtaining RCRA and other required permits for the operation of hazardous waste treatment, storage, and disposal facilities. We have helped clients obtain necessary air permits for the operation of industrial and other commercial facilities.

We understand that regulatory compliance depends on effective communication and training at all levels of an organization and is no easy feat for companies operating in heavily regulated jurisdictions like California. The challenges are particularly intense for small companies falling under complex and overlapping regulations, but with limited managerial and engineering resources. We know how to work closely with CEOs as well as field and technical employees to help companies use their limited resources wisely in implementing cost-effective compliance programs.

Our personal working relationships with regulators enable us to raise clients’ issues to the proper level and give us the credibility to advocate clients’ positions effectively. When appropriate, we team with seasoned lobbyists to provide clients a powerful combination of substantive experience and access to the legislative process. We also have productive relationships with numerous regulatory agencies, including the U.S. EPA, the State Water Resources Control Board, and the California Air Resources Board.
 

Key Contacts

Sean Herman

Partner

San Francisco, CA

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