Environmental Crises

The Environmental Crisis team includes numerous former high-ranking government alumni, including the former Assistant Attorney General for the Justice Department's Environment and Natural Resources Division and the former Deputy Secretary of Labor, who bring critical insight to responding to government regulators. We assist clients in managing relations with the many federal agencies that may be involved in responding to a crisis, including the EPA, OSHA, Fish and Wildlife Service, Coast Guard, and other law enforcement agencies, as well as their state and local counterparts. While each incident will require its own specific solutions, we have often organized postincident investigations to both identify accident causes and assist in drafting response plans for government review and approval. Such demonstrations of good faith have persuaded officials to either suspend or lessen penalties.

Employing an interdisciplinary approach across geographic and jurisdictional boundaries, we work with clients to prevent catastrophic occurrences and detect potential violations—with the goal of preventing costly future events or enforcements—or to quickly and favorably resolve enforcement proceedings already under way. Our background in handling crises, and in working with government agencies and responding to civil environmental litigation, lends us critical insight into the best, most effective risk-avoidance and crisis-management strategies for any one client.

We also work with clients in connection with EPCRA, including providing counseling on how best to substantiate confidentiality claims to ensure that reports made to authorities do not inadvertently release trade secrets. In response to our handling of such matters, we were called upon to author the two-volume Environmental Spill Reporting Handbook (Thomson/West 2009), containing guidance on federal and state requirements for responding to spills and releases.

We provide companies or individuals facing environmental crimes investigations with representation that combines comprehensive knowledge of applicable federal, state, and local laws; the insight of former high-level agency attorneys; and the national resources to respond to both urgent and gradually developing matters, regardless of location. Whether in response to a critical incident, a government inquiry, or a self-identified need for internal investigation, we assist quickly and with the appropriate personnel.

Our Environmental Crises Practice includes white collar, environmental, and OSHA attorneys—among them numerous federal prosecutors and agency alumni with years of background trying environmental and safety cases. This interdisciplinary team includes the former Assistant Attorney General for the Justice Department's Environment and Natural Resources Division, the only person to have served both as the government's top environmental enforcement lawyer and as a U.S. Attorney, as well as several other former U.S. Attorneys.

With one of the largest occupational safety and health law practices in the country, Morgan Lewis has worked extensively on OSHA and state plan issues throughout the United States and its territories. Our team has worked with large companies, many in the petroleum and chemical industries, in the aftermath of plant explosions, fires, and releases around the country. Our OSHA Practice includes among its members such former high-ranking government officials as a previous Deputy Secretary of Labor, a former acting head of OSHA, and a former Deputy Solicitor of Labor. Our nationwide presence allows us to deploy experienced attorneys nearly anywhere in a matter of hours—helping clients to timely manage major workplace incidents, particularly those involving fatalities or classified by OSHA as catastrophes.

In responding to emergency situations, we have worked with OSHA on the first day of inspections to coordinate procedures and negotiate site security agreements. We assist clients in determining conflicts and organizing the investigations, including OSHA’s Petroleum Refinery Process Safety Management&endash;required incident investigation, which must commence within 48 hours. We stay with the client as needed throughout the inspection, and we negotiate settlements at the area, regional, and national office levels. Morgan Lewis attorneys handle enforcement matters at the informal conference stage as well as in contested proceedings before administrative agency judges, the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, other state and federal agencies, and the appellate courts.

We have acted as lead counsel in explosion-related litigation and as members of the team coordinating the defense. We also have worked extensively in defending “whistleblower” actions, in which OSHA enforces the employee protection provisions of 14 federal safety, financial, and environmental laws. Our attorneys not only have significant backgrounds in litigating whistleblower claims before administrative agency judges and on appeal before federal appellate courts, but their longstanding relationships with OSHA officials and attorneys at the highest levels frequently help facilitate early resolution.

Morgan Lewis also works closely with clients before any crisis occurs, in an effort to avoid catastrophic incidents and to curtail and manage the consequences if they do happen. We have assisted clients in dealing with workplace inspections, incident investigations, and safety audits. We regularly assist clients in developing comprehensive OSHA compliance programs. Our attorneys perform privileged audits of client programs and we offer a variety of training programs for clients’ OSHA attorneys and safety and health professional staff. We also represent numerous oil companies being inspected under OSHA’s PSM National Emphasis Program (NEP).

Our lawyers have defended clients in large class actions raising toxic tort claims, and mass lawsuits for property damage and medical monitoring associated with alleged contamination of underground water supplies. Cases handled by the firm’s lawyers include matters involving thousands of plaintiffs who claimed personal injury and property damages allegedly suffered as a result of contamination of the air, soil, or groundwater.

Morgan Lewis has defended clients against citizen suits brought under RCRA, the CWA, the CAA, and state laws such as California’s Proposition 65, all of which can create a large liability exposure. Our attorneys, drawing upon varied legal and scientific disciplines available to them within the firm, craft a specialized response that is designed to produce a swift and favorable result.

A crisis event can also lead to commercial litigation over pre-existing indemnity, warranty, and other commercial provisions between product buyers and sellers or between current and past facility owners. Our representation of companies facing commercial litigation that can flow from a crisis event includes defense of environmental indemnity claims, such as those arising in connection with alleged noncompliance with the clean air and clean water laws and associated permits or those arising in connection with government investigations of the incident. We have counseled many clients on the commercial litigation aspects of environmental and worker exposure risks and have litigated the associated claims.

Morgan Lewis’s insurance recovery lawyers help clients manage their environmental liability by maximizing and preserving the value of their insurance assets. Often working in tandem with our colleagues in other practices, we assist companies at every critical step, from advising them on procuring environmental insurance through to securing and protecting maximum recoveries when claims are filed.

We prosecute, negotiate, and bring to trial major environmental insurance claims for many of the nation’s most prominent companies, frequently employing innovative fee arrangements to share the risk. Our attorneys are admitted to practice in a dozen key jurisdictions and have handled claims or adjudications in all 50 states and across the world. That broad geographic reach gives us the ability to pursue actions in the jurisdiction most favorable to our clients, without undue delay.

We have represented companies in the specialty chemical, aerospace, petroleum, waste disposal, manufacturing, and other industries in cases that have received extensive media exposure. We work with our clients, including their public relations consultants, and have succeeded in limiting unfavorable coverage—in many cases using publicity to benefit the client. We also have dealt extensively with grassroots organizations, and have held “town hall” gatherings to diminish adverse publicity and local antagonism.

In addition to coordinating with state and federal officials and enforcement agencies, we provide assistance in matters resulting in congressional or legislative investigations, a situation presenting its own complexities. We draw on former government alumni—such as a former White House Counsel, the former Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, and the former Deputy Secretary of Labor—who are accustomed to the special dynamics that come into play when multiple government branches are all taking an interest, with potentially inconsistent and uncoordinated timing and objectives.