Environmental Litigation
K&L Gates’ environmental litigation practice spans the full range of the environmental arena and includes defending clients in civil and administrative enforcement actions; criminal prosecutions; challenging regulatory authority rules; private party and citizen suit litigation; and first-party and third-party administrative appeals before regulatory authority tribunals.
We have the experience and resources to handle significant environmental disputes in an effective and cost-efficient manner. Our lawyers have litigated cases of first impression, including some of the largest and most complex environmental litigation in the United States. We also assist clients with the day to day regulatory and third party disputes that arise out of business operations. We have extensive experience in settlement negotiations and alternative dispute resolution on behalf of clients wishing to resolve conflicts outside the courtroom.
Enforcement Actions and Criminal Defense
When a company or an individual is accused by the government of violating the law, it is a difficult and disruptive event requiring experienced legal counsel. The challenge created by enforcement actions is exacerbated by the low standards of proof the government must meet to prove violations and collect substantial penalties and other sanctions. These cases are further complicated by the increasing frequency of parallel enforcement proceedings — in which prosecutors pursue both civil and criminal enforcement actions.
Although dealing with enforcement matters are rare events for individual clients, K&L Gates’ lawyers routinely handle such cases, ranging from enforcement proceedings to criminal investigations, trials and appeals. Included among us are former prosecutors and former enforcement lawyers for U.S. state and federal regulatory authorities. The perspective that former prosecutors can bring to the defense of environmental cases is invaluable as a company facing such charges evaluates its options. The experience that we have assures clients that the option they choose will be executed effectively and efficiently. While we have tried cases to conclusion, we have extensive success at the investigative stage, where the resolution is often most favorable to our client.
We have defended corporations and corporate officers against various charges, including illegal disposal of hazardous wastes, records-keeping violations, conspiracy, reporting violations, and mail and wire fraud. We also provide advice on how best to protect a corporation or individual’s interests during the government’s search of a facility for evidence, grand jury investigations and plea negotiations.
Private Party and Citizen Suit Litigation
K&L Gates’ lawyers have considerable experience litigating disputes between our clients and private parties or citizen groups. Using our extensive knowledge of environmental statutory and regulatory schemes, we work closely with our clients to develop and execute the appropriate litigation strategy to achieve the best possible result for our clients. Our lawyers also utilize alternative dispute resolution where it was in the client's best interest.
Administrative Appeals
We have represented clients before various regulatory authorities and administrative tribunals to challenge permitting or other agency decisions, or to defend a client’s permits and licenses when challenged by a third party. The proceedings before such administrative bodies are often distinct and particularized, so our experience is invaluable. In addition, our excellent working relationship with many government regulators facilitates the appeal process and achieves desired results for our clients. As previously noted, several lawyers are former regulatory authority lawyers, having practiced with the U.S. Environmental Protection Agency (EPA) and state environmental agencies. This experience provides a keen insight into the administrative and regulatory process involved in appeals.
Superfund, Cost Recovery and Natural Resource Damage
K&L Gates has represented numerous U.S. clients in Superfund and state cost recovery litigation, successfully obtaining a number of multi-million dollar settlements on behalf of our clients through litigation and negotiation. We have represented various site owners, including privately owned disposal facilities, municipal landfills, industrial property owners, port districts and sewage treatment facilities, seeking contribution for their cleanup costs from the generators and those who transport hazardous substances, and from adjacent property owners.
Since regulatory agencies often look first to the property owner to pay cleanup costs, we have represented numerous plaintiffs in cost recovery litigation, bringing a unique perspective to our practice. Our lawyers have also represented a variety of private and public entities as defendants in cost recovery litigation, including chemical companies, railroads, garbage haulers, hotels, department stores, marine companies, and a variety of municipalities such as cities and port districts.
Our natural resource lawyers form one of the most experienced teams in damage litigation in the U.S. We were lead counsel to the state of Alaska in all phases of the Exxon Valdez oil spill litigation which resulted in a $1 billion settlement for the state. The firm has also established itself at the forefront of the growing movement among EPA and states to collect natural resource damages for contaminated urban rivers. In the U.K., we have also advised numerous clients on liability issues under the Part IIA contaminated land and other regulatory regimes.
Compliance Counseling
Environmental compliance is an ongoing process that goes well beyond avoiding violations. In today’s business environment, compliance means finding better ways of doing business, managing shareholder obligations, and meeting global business imperatives toward continual improvement and cost-effective performance. At K&L Gates, we partner with our clients to forge creative and cost effective compliance solutions in matters ranging from case-specific regulatory interpretation problems to broader strategic planning and compliance system development. Our compliance lawyers have helped clients with property transactions, project development and permitting, environmental justice, energy and natural resource management, and legislative and regulatory policy development in the U.S. and the U.K.
Natural Resources and Energy
Natural resources are the lifeblood of commerce and industry. K&L Gates’ natural resources practice spans the range of natural resources development, conservation and management companies -- including water, coal, aggregates, oil, natural gas, minerals, base and precious metals, and timber.
A number of our partners have worked in-house with companies active in the natural resources industry, including, in particular, a number of our London partners who were previously in-house with the world’s leading businesses.
Natural Resource Development and Endangered Species
We have been involved in cutting-edge projects involving natural resource development. As might be expected from a practice that started in the backyard of America's first petroleum fields, K&L Gates’ oil and gas practice is built on in the legal and practical aspects of managing, extracting and transporting petroleum and gas reserves and the environmental issues related to such activities. We have also worked with multiple clients in the mining, extraction and processing of coal and other minerals.
The nation's timber supply is a major focus of forest products activities. We are particularly involved in the present dispute over old-growth forests, land use restrictions caused by the Endangered Species Act, timber jobs and stability of rural communities. Our lawyers provide leadership in creating industry strategy, and developing proposed legislation and other materials to support the industry.
In virtually all natural resource development projects there is a potential to impact threatened or endangered species. Forestry, mining, agriculture, shipping and energy projects present risks, as do public infrastructure projects and residential, industrial and commercial developments. Environmental and land use lawyers at K&L Gates have the experience to integrate endangered species concerns into near term and long term decision making and project development. Where necessary and unavoidable, we have also pursued natural resource management issues in legal proceedings and have considerable advocacy experience on issues arising out of environmental and natural resources laws.
Fisheries
K&L Gates represents a wide range of U.S. and international fishing industry enterprises, as well as lenders and others involved with the fishing industry. The firm provides general counseling and assistance to resolve issues of fisheries policy before administrative and legislative bodies. In addition, we have comprehensive experience in vessel related matters as well as trade issues affecting the fishing industry.
The firm’s legislative work ranges from vessel documentation and manning requirements to safety regulations, tax issues, coast wise eligibility of vessels, international fisheries agreements and trade matters. We have prepared testimony, presented the views of industry coalitions to members of the U.S. Congress through written correspondence and personal visits, and developed strategies to secure favorable legislation. We have extensive experience in U.S. fishery management councils, the National Marine Fisheries Service, and the relevant Senate and House committees.
Energy Projects
We represent energy and utility clients on the full range of issues concerning facility operations and environmental compliance. We have represented public and private entities in connection with siting, licensing, development and long-term operation of hydroelectric, thermal, wind, and waste-to-energy generation facilities; transmission facilities; water and wastewater facilities; and gas and oil pipeline and production facilities.
Our practical approach to resolving operating, environmental and related issues has facilitated the successful completion and continued operation of many projects. We help our clients earn public recognition for their civic responsibilities, while enabling them to achieve their business goals quickly and cost-effectively. More information can be found on our Energy and Utilities practice page.
Water and Wastewater Services
The water law group at K&L Gates is at the forefront of water law issues in both the eastern and western United States. Members of our team have handled precedent-setting cases regarding water law and allocation, including interstate water disputes and development of hydroelectric power.
In the western U.S., our lawyers serve clients in obtaining, amending and transferring water rights. We assist in obtaining permits for waste water discharge, use of reclaimed water and new sources of supply. Our lawyers address issues arising under the Endangered Species Act, the Clean Water Act, and various laws and treaties relating to Native American water right and fishery resource claims. We have also assisted clients in complying with the Safe Drinking Water Act through creative financing, restructuring and regulatory solutions, and achieving municipal and private client goals through water reuse.
Similarly, in the eastern U.S., K&L Gates’ lawyers have taken a leadership position in various state and regional water law reform efforts. We have actively represented individual water, energy and other utilities, as well as private developers and industries, in obtaining state and basin commission permits for groundwater and surface water withdrawals, wastewater treatment, reuse, and discharge projects. Over the past 15 years, we have counseled and represented entities engaged in some of the largest and most innovative public-private partnership projects for water and wastewater infrastructure development across the U.S.
Project Development, Land Use & Permitting
We have been instrumental in the successful development of a variety of complex projects — such as new power plants, complicated manufacturing facilities and “brownfield” redevelopments — guiding our clients through siting, permit and licensing proceedings. More information for our real estate clients is available on the Land Use, Planning and Zoning page . Many of those cases have involved innovative solutions, finding “win-win” opportunities where parties initially had vastly opposing positions.
For example, in the Eastern U.S., we represented clients in the successful siting and development of commercial hazardous waste treatment and industrial waste disposal facilities — projects that required not only convincing regulatory bodies to issue approvals, but also withstanding private-party challenges and appeals. In the Northwest U.S., K&L Gates been called on to site some of the region’s most complex and controversial public and private projects, ranging from the major league ballpark in Seattle (Safeco Field) to transportation infrastructure, wireless communication facilities, energy generation projects, port facilities, downtown developments, regional shopping malls, industrial projects, public facilities, wastewater treatment plants, water reuse and conveyance systems and regional landfills. In the U.K., our lawyers regularly address application and compliance issues related to environmental permits, as well as appeals to conditions placed on permits, the best available techniques provision, and related negotiations with the U.K. Environmental Agency. Of note, we successfully defended an animal renderer facing prosecution for a breach of condition attached to an environmental permit in circumstances related to the U.K.’s foot and mouth disease crisis.
Our experience with environmental cleanups, real estate and local permitting make us a one-stop firm for redevelopment projects and remediation of contaminated properties (“brownfields”). Our environmental and land use lawyers pioneered brownfield developments for companies, cities and ports, beginning with a major downtown transit center and the first Superfund cleanup and habitat restoration project in U.S. coastal waters. Over the past several years, we have represented both existing owners and prospective purchasers in scores of transactions involving the acquisition, remediation, redevelopment and disposal of brownfield sites and have counseled clients on dozens more significant contaminated site cleanup projects.
In the U.K., our lawyers advise our clients on development consent including submission of planning applications, applying for highways’ stopping-up orders, listed building, conservation and other consents. We advise on environmental impact assessment and planning strategy, as well as draft planning obligations and infrastructure agreements. Where necessary, we conduct environmental disputes, Lands Tribunal Cases, judicial reviews and other High Court proceedings and public inquiries into planning matters. We are also well-versed in the issues emerging out of the U.K.’s Planning and Compulsory Purchase Act of 2004, as well as the regimes regulating nature conservation designations and other heritage designations.
Lawyers in our group serve as counsel for or members of planning boards, a variety of permit granting authorities, zoning boards of appeals, Conservation Commissions and other local Commissions, lending unique perspectives to clients seeking permits and other land use approvals.
Transactions/Environmental Due Diligence
Whether it is a straightforward acquisition of unimpaired assets or a complex multi-site transaction involving extensive contamination, we know how to identify and assess the risks and liabilities and allocate them among the parties to achieve our clients' objectives. Our assessments are not limited to environmental conditions at and near the subject property—we also consider the need to transfer or amend permits for ongoing operations and facilitate such transfers and amendments when necessary and evaluate whether our client’s business plans can be accomplished under existing authorizations.
We routinely assist property developers, lenders and asset managers in the following areas:
- Providing regulatory advice, including analysis of whether current practices conform to regulatory requirements.
- Drafting appropriate protective covenants in purchase and sale documents, loan documents and leases, including representations, warranties and indemnities.
- Working with environmental consultants to evaluate and minimize potential liabilities in real estate transactions and other business transactions.
- Reviewing and revising lease provisions to ensure that they contain protective provisions, such as rights of inspection and termination.
- Obtaining contributions from parties responsible for contaminating property, including former owners and tenants.
Legislative & Regulatory Environmental Policy
K&L Gates assists businesses in strategic participation in the process of enacting and amending environmental laws. Our lawyers have participated in the negotiation, drafting and enactment of statutes, regulations and executive orders and have testified before legislative and regulatory panels on leading-edge issues for our clients. Our success is based on continuous involvement with national and regional industry leaders, as well as with the U.S. Congress and the federal land management agencies.
Environmental policy is in many instances developed through litigation—particularly challenges to formal regulatory authority rules and informal policies and guidance. K&L Gates has successfully challenged a number of rules for our clients, and we monitor related litigation by others for opportunities to bring our clients' perspectives before the court in amicus curiae briefs. More information can be found on our Public Policy & Law practice page.
Environmental Justice
K&L Gates’ lawyers have played a major role in influencing the development of the emerging environmental justice movement. Relying on both constitutional and statutory authority in the civil rights arena, environmental justice advocates seek to influence siting, permitting, and cleanup decisions regarding controversial facilities or sites at both the state and federal levels. K&L Gates has not only counseled clients in their efforts to avoid environmental justice litigation through the creation of effective community outreach programs, but we have also successfully shaped the applicable case law through our successful involvement in precedent-setting litigation at the federal appellate level. We have served both as lead counsel in such cases and as a facilitator in obtaining third-party support for parties already embroiled in litigation over this sensitive issue. As the environmental justice movement gains momentum, K&L Gates is at the forefront, influencing and responding to new statutory and regulatory developments and grass roots organizational efforts for our clients.
Environmental Insurance Coverage
Analysis of environmental liabilities often involves analysis of potential insurance that might cover such liabilities. K&L Gates has actively advised and litigated on behalf of policyholder clients in the environmental insurance coverage area for Insurance Coverage states for over two decades. We have sought coverage for a variety of our policyholder clients' environmental liabilities arising out of their own property, property of others, and toxic tort claims. We have filed dozens of appellate briefs in state and federal jurisdictions across the U.S. We also have negotiated and concluded hundreds of settlements on behalf of our policyholder clients in coverage disputes, including asbestos-related disputes and disputes involving the complexities of bankruptcy proceedings. More information can be found on our Insurance Coverage practice page.