- Sutherland

Environmental

Sutherland's Environmental Practice Group has been in existence since the inception of this country's environmental laws. The lawyers in our Houston, Washington and Atlanta offices offer a broad array of environmental legal services for manufacturing, energy and mining companies, construction firms, financial institutions, trade associations, investment firms and real estate concerns. For these clients, our environmental lawyers:

evaluate the current and future environmental compliance needs of industrial facilities;
provide environmental assessments of assets and real property they may contemplate selling, acquiring or financing;
analyze potential liability for clients’ past and present waste disposal and waste management practices;
establish programs for environmental housekeeping and audits;
assist plants in procuring required construction and operating permits;
prosecute and defend environmental claims of federal and state environmental agencies and third parties;
litigate environmental and toxic torts claims among private companies;
represent clients in environmental criminal investigations and prosecutions; and
act as a liaison between industry and the federal and state governments in developing legislative and regulatory initiatives.

The group's experience includes toxic tort litigation; Superfund cost recovery litigation; stationary and mobile source air pollution; water pollution; land disturbance; marine oil spills; solid waste management; hazardous and medical waste treatment, transportation, storage and disposal; underground and above ground petroleum and chemical storage facilities; right to know and chemical inventory reporting; occupational and health and safety requirements; and insurance coverage for environmental hazards. In addressing these matters, our lawyers seek to maximize results for our clients through a combination of administrative and judicial litigation, negotiation skills, effective lobbying in agency rulemaking proceedings and before Congress, and intimate familiarity with their business operations and philosophy.

Administrative Enforcement, Compliance and Permitting

The firm has a thriving practice based on preventive counseling and general advice on compliance with state and federal requirements. We regularly advise not only individual companies, but also trade associations in the myriad questions arising under the complicated and ever changing environmental laws and regulations. We routinely work with both the United States Environmental Protection Agency and counterpart state agencies to resolve issues that arise from inspections and review of monitoring reports. Our goal is to correct potential compliance problems before they rise to a level where formal enforcement proceedings are initiated.

Our permitting work has included specific planning for compliance with Title V of the Clean Air Act as well as its prevention of significant deterioration and new source performance regulations; the Clean Water Act's effluent guidelines and water quality regulations, and state mining and reclamation laws. In addition, we have handled overall design and construction of permit applications, as well as the defense of contested permits sought by mining companies, hazardous waste facilities, chemical plants and textile mills. Our efforts have resulted in newly permitted facilities.

In addition to obtaining and defending permits, we have been successful in contesting proposed limitations on individual National Pollution Discharge Elimination System (Clean Water Act) permits, air emission permits, and solid waste disposal permits. We have extensive experience in defending against proposed fines for alleged violations of the Clean Air, Clean Water, and Hazardous Waste laws, and have successfully defended against, or won reductions of, proposed penalties before both state and federal administrative law judges, as well as in the federal courts. We also offer special expertise in dealing with enforcement actions against energy companies accused of violating the various federal mobile sources laws and regulations.

Environmental Litigation and White Collar Practice

In addition to contested permit litigation and enforcement actions brought in the courts, the defense and prosecution of "toxic tort" claims represents a substantial part of our environmental practice. This work involves claims alleging property and personal injury due to direct exposure to allegedly hazardous products as well as actions based on alleged injury due to permitted air and water emissions, leaking underground storage tanks, or improper waste disposal or releases. These claims normally involve allegations based on both common law theories (negligence, nuisance, trespass and strict liability) and citizen suits and other remedies available under the various environmental laws. In 1994 we successfully defended the second trial in the country alleging that power lines caused cancer.

Violations of the environmental laws can also lead to criminal investigations and prosecutions, at both the state and federal levels. When that occurs, our environmental lawyers team with our white collar specialists to represent our clients in grand jury investigations, and if necessary, in criminal trials.

Superfund Litigation and Counseling

The firm's litigators and environmental lawyers together represent clients in federal and state proceedings involving liability for cleanup of abandoned hazardous waste sites under the federal Comprehensive Environmental Response, Compensation and Liability Act ("Superfund") and comparable state hazardous waste statutes. We have successfully represented many companies in complex, multiparty federal cost recovery cases, including cases against the Department of Justice. The firm's lawyers also participate in groups of potentially responsible parties (“PRPs”), advise clients on negotiations and settlements with the EPA, PRP groups and state agencies, and prosecute insurance defense and indemnity claims.

Assisting our clients in avoiding exposure to Superfund liability also is an important component of our environmental practice. We review our clients' operations and waste management practices with an eye toward advising them how to avoid liability as a generator of hazardous waste at off site disposal areas that may become subject to Superfund cleanup actions. In the same vein, we counsel companies about the potential liability under the Superfund laws of their individual officers, directors, shareholders and affiliates.

Oil Spill Litigation and Counseling

Sutherland is regarded as one of the country's leading legal resources for energy companies in the field of oil spill regulation and litigation. Our energy and environmental attorneys advise U. S. and foreign refiners, marketers, importers and petroleum commodities trading firms of the implications of the federal Oil Pollution Act of 1990 and state laws imposing liability upon owners and operators of vessels, marine terminals, shippers and cargo owners, and the role of protection and indemnity clubs. One of the most important aspects of the firm's efforts in this field involves the provision of oil spill risk management. We tailor our assessment of the obligations and risks posed by federal and state spill laws to meet each client's individual operations, and we provide a variety of suggested procedures for managing these risks.

Environmental Due Diligence and Audits

An important part of our practice has been advising our corporate, finance and real estate practice groups on the environmental problems involved in lending transactions and in acquiring or disposing of businesses and property. This work has included advising on and participating in due diligence reviews and environmental audits, negotiating purchase price and escrow terms in light of risks discovered or presumed, and drafting contract language to accommodate environmental contingencies.

Our attorneys have obtained environmental evaluations for many types of transactions and with respect to a wide variety of facilities, structuring the scope of investigations to reflect the particular role of our client and the projected allocation of environmental responsibility among the parties. Complementing their review of ongoing operations, our lawyers analyze the impact of upcoming legislative and regulatory proposals in order to predict the projected costs of future compliance.

With the foundation of our investigative findings, our team of corporate and environmental attorneys can effectively advise its selling, purchasing and financial institution clients as to how best to assign responsibility for environmental matters in each transaction. This advice includes drafting the necessary corporate documents, developing plans for the continuation of ongoing cleanup activities at the facility after closing, creating holdback and other security arrangements, and negotiating with the EPA and state agencies to work out pending enforcement matters.

Legislative and Policy Practice

The policy segment of the firm's environmental practice centers upon assisting in the development of legislation and regulatory initiatives affecting its clients' business operations. We have been active in developing federal Clean Air Act and Clean Water Act regulations as well as state laws regulating solid waste disposal and surface mining, and have obtained statutory exemptions for client activities under the Clean Air Act, Clean Water Act, and Superfund.

The firm represents companies before the EPA and comparable state agencies in rulemaking proceedings by preparing formal written comments and testimony. For example, our firm played a major role in developing the EPA regulations concerning the volatility of gasoline on behalf of a group of petroleum trading companies. On the legislative front, our Washington attorneys maintain relationships with key agency policymakers, senior Congressional committee staff and Bush Administration officials. These relationships often enable us to provide our clients with special insight into legislative and regulatory developments in the environmental field.

Mobile Sources

Finally, as part of its energy practice, the firm has been involved in the implementation of regulations under the mobile source provisions (Title II) of the Clean Air Act Amendments of 1990 and the Energy Policy Act of 1992. We advise an array of petroleum companies involved in refining, blending, importation and distribution of petroleum products that must conform to the requirements for oxygenated fuels, the diesel desulfurization program and the reformulated gasoline and anti dumping programs. We also are working closely with the EPA and affected participants in both the cash and futures markets in fashioning these rules, with special focus on the problems facing traders, importers and offshore refineries serving the U.S. markets.