Environment & Energy

Advised on infrastructure, siting, zoning, environmental permitting and Public Service Commission issues for the financing of a 725-megawatt combined-cycle natural gas fired power plant.

Counseled a major utility on identifying key risk areas and mitigating performance issues in anticipation of potential high media and congressional visibility relating to the U.S. Army Energy Initiatives Task Force’s $7 billion multiple award task order procurement for locally generated renewable and alternative energy using Power Purchase Agreements or their equivalents.

Lead appellate counsel in a consent decree challenge. After extensive negotiations subsequent to a successful remedy challenge in the United States District Court for the District of Rhode Island, obtained the entry of a Consent Decree implementing the remedy at the Centredale Manor Restoration Project Superfund Site. Several PRPs opposed the entry of the Consent Decree on three primary grounds: implementation of a remedy that was arbitrary and capricious; failure of the District Court to conduct meaningful judicial review; and the basis and amount of the contribution of the United States DOD in relation to its alleged contribution to contamination at the site.  After coordinated briefing and argument with the US Department of Justice, the First Circuit affirmed the District Court’s entry of the Consent Decree in a reported opinion. Emhart Industries, Inc., et al. v. United States Department of the Air Force, et al.,988 F.3d 511 (1st Cir. 2021).

Advised an infrastructure development, management, and operations firm in the acquisition of legacy wind power generation assets, including assessing the risk of contamination liability, advising on appropriate contract protections, and evaluating requirements regarding species protection issues.

Advised an international financing and investment firm, with significant experience in the renewable energy sector, understand and evaluate the risks involved in providing development financing to a major offshore wind energy project. Work included advising on the state public service commission’s approval of offshore renewable energy credits, conducting due diligence on local, state and federal permitting, licensing, and process for obtaining the energy credits.

Advised a global infrastructure investment manager on strategic power generation and infrastructure investments, including both developmental stage and operational projects, focusing on current and legacy environmental site conditions, contamination, permitting, regulatory compliance, and land use issues.

Assisted client prepare and submit proof to support multi-million dollar environmental insurance claim involving numerous contaminated sites.

Provided major solar installer with opinions regarding applicability of certain local state, and federal environmental, aviation, and energy laws required for planned installation of commercial solar projects.

Prosecuted a cost recovery/allocation action against several potentially responsible parties related to the Providence, Rhode Island Superfund site on behalf of a large power tools manufacturer in the District of Rhode Island.

Advised real estate investment trust on the installation of roof-top solar systems, including drafting rooftop solar leases, negotiating power purchase agreements with tenants and engineering, procurement, and construction contracts with vendors.

Represented a private equity firm with investments in several waste-to-energy facilities, including assessing environmental site conditions and addressing permitting issues related to the handling and management of solid wastes.

Advised team of academic researchers and professors on filing public comments in support of the U.S. Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS).

Aided a consortium of major consumer brand companies prepare and file a joint Amici Curiae brief in the U.S. Court of Appeals for the D.C. Circuit supporting the Clean Power Plan pursuant to the Clean Air Act (CAA).

Assisted a non-profit environmental organization prepare two Amici Curiae briefs at the summary judgment stage in the U.S. District Court for the District of Columbia in support of an energy projects developer’s and U.S. Government’s compliance with various environmental statutes, including the National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (MBTA), Endangered Species Act (ESA), and National Historic Preservation Act (NHPA).

Assisted a textile industry client evaluate and address environmental regulatory and compliance issues concerning a facility’s repurposing and a strategy for property reuse, including procurement of environmental insurance and participation in the state’s Brownfields Program.

Advised a major electric utility company regarding New Source Review (NSR) program requirements under the Clean Air Act (CAA), including a six-month audit of internal procedures and suggested compliance improvements.

Advised clients on environmental issues in commercial transactions, including due diligence reviews for real estate transactions, risk evaluation of using properties as loan collateral, permit transfer, facility closures, and liability and indemnity issues in corporate transactions.

Counseled real estate investment trust (REIT) clients regarding environmental and land use due diligence for various real estate portfolio transactions involving numerous properties, including acquisitions of industrial, truck stop and gasoline station, office, hotel, and senior living properties.

Counseled clients regarding the Federal Food, Drug, and Cosmetic Act (FDCA) and applicable U.S. Food and Drug Administration (FDA) regulations, including use of medical devices in clinical research trials and transfer of ownership of products’ approvals.

Provided regulatory guidance and representation before the U.S. Environmental Protection Agency (EPA) to a potentially responsible party at site where dioxin and PCBs are contaminants of concern, including preparation of public comments at various stages of the administrative process addressing the Proposed Remedial Action Plan, Remedial Investigation, Feasibility Study, and answering Unilateral Administrative Orders.

Assisted a group of businesses and trade associations prepare and file a joint Amici Curiaebrief in the U.S. Court of Appeals for the D.C. Circuit challenging volume standards for advanced biofuels under the Clean Air Act’s (CAA) Renewable Fuel Standard (RFS) program.

Represented automotive client in two Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation actions in the U.S. District Court for Eastern District of New York alleging contribution to site contamination and a $35+ million cleanup remedy.

Represented consumer product manufacturing clients in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation action in the U.S. District Court for Rhode Island, including challenging liability, the Record of Decision, and a $100+ million cleanup remedy.

Lead trial counsel in a CERCLA liability trial brought by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice asserting a “divisibility defense” in connection with dioxin contamination at the Centredale Superfund Site in North Providence, Rhode Island. The trial required over 20 trial days spanning two months and live and deposition testimony of over 20 fact witnesses. The trial involved over a dozen expert witnesses covering complex issues of chemistry, molecule formation and synthesis, chemical fingerprinting, process chemistry, aerial photographic analysis, chemical fate and transport, and environmental engineering. Although the client ultimately did not prevail in establishing this rarely applied defense to CERCLA joint and several liability, the trial resulted in a 186-page opinion, express recognition by the court of “second to none” skilled management and presentation of complex issues, and the defense provided partial basis for subsequent finding of client’s good faith “sufficient care” defense to fines and penalties sought by the U.S. EPA for client’s refusal to comply with a UAO issued to it during pendency of the litigation. (Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S))

Lead litigation counsel for a client pursued for perchlorate groundwater contamination in the Rialto-Colton Groundwater Basin in San Bernardino County, California. This multi-year litigation involved state judicial and administrative proceedings, as well as federal judicial and administrative proceedings. The parties included the cities of Rialto, California, and Colton, California, the County of San Bernardino, the Santa Anna Regional and State Water Board, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Defense, and over a dozen other alleged PRPs. The team extensively litigated CERCLA liability/divisibility defenses and a variety of corporate successor liability issues for multiple historic entities under the laws of multiple states. After a court-deferred resolution of successor liability issues for trial, we negotiated a favorable settlement for the client limited to implementation of an interim remedial action, utilizing a trust funded by other PRPs, including the Department of Defense, with continuing cost-sharing by the Department of Defense in capital and O&M costs. The interim action was negotiated with significant limits on scope of remedial action and re-openers and no past or future EPA oversight costs. (City of Colton v. American Promotional Events, et al., USDC, Central District California (5:09-cv-01864-SG-SS)).

Lead trial counsel in a trial against the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice in the United States District Court for the District of Rhode Island challenging the remedy selected by U.S. EPA for the Centredale Manor Superfund Site in North Providence, Rhode Island. This trial also required defense of an enforcement claim and a claim for over $40 million in fines and penalties for the client’s refusal to comply with an EPA Unilateral Administrative Order requiring the implementation of the challenged remedy. The trial involved EPA and client fact witnesses and experts on both sides in the areas of human health and ecological risk assessment, environmental engineering, construction and chemical fate and transport. After 13 bench trial days spanning six months, extensive briefing, and a full day of closing argument, the court found certain aspects of EPA’s remedy selection process to be arbitrary and capricious, remanded remedy to EPA, retained jurisdiction over the case through remedial design in connection with other issues, stayed enforcement of the UAO, and found objective good faith “sufficient cause” for the client to refuse to comply with that order, awarding none of the over $40 million in fines and civil penalties sought by the EPA. (Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S))