Environmental Regulatory Matters
Morgan Lewis manages the often complex relationships between its clients and the full range of regulatory agencies that administer environmental rules and laws at the federal and state levels. We assist businesses across most major industries with obtaining permits and approvals required to maintain or expand operations within the context of these statutes and policies—including those related to climate change—and we help clients prevent or identify potential regulatory problems through general counseling, audits, and customized training programs. Often, we engage with government agencies on behalf of individual companies and industry groups when rules and policies are being established.
Attorneys in the practice who have recently held high-level leadership positions at key government and regulatory agencies provide clients critical perspective on the environmental regulatory issues affecting their business objectives. Our team is led by Ron Tenpas, a former Justice Department Assistant Attorney General for the Environment and Natural Resources Division—the federal government’s highest-ranking environmental litigator—whose duties included supervising the defense of all federal environmental regulations, such as those promulgated by EPA, the Fish and Wildlife Service, and the Transportation Department.
The Environmental Regulatory Practice routinely engages with or responds to regulatory matters involving the following agencies:
- National Transportation Safety Board
- Nuclear Regulatory Commission
- U.S. Army Corps of Engineers
- U.S. Chemical Safety Board
- U.S. Coast Guard
- U.S. Department of the Interior (incl. Bureau of Land Management; U.S. Fish and Wildlife Service)
- U.S. Department of Labor (incl. Occupational Safety and Health Administration)
- U.S. Department of Justice (incl. the Environment Division, U.S. Attorneys offices, FBI)
- U.S. Department of Transportation (incl. National Highway Traffic Safety Administration)
- U.S. Environmental Protection Agency
- California Environmental Protection Agency (incl. Air Resources Board, Department of Pesticide Regulation, Department of Toxic Substances Control, State Water Resources Control Board)
- California Resources Agency (incl. Department of Fish and Game, Department of Forestry and Fire Protection)
- New Jersey Department of Environmental Protection (incl. Bureau of Emergency Response)
- Pennsylvania Department of Environmental Protection
- Texas Commission on Environmental Quality
We work with clients confronting the emergence of laws, regulations, and policies relating to climate change, helping companies to navigate the developing requirements and create strategies to address the resulting challenges and opportunities. Our lawyers can assist with issues involving financial disclosure statements related to carbon emission control programs, advise on purchases of carbon dioxide allowances, and lend clients a voice in the nation’s climate change policy dialogue. Our practice includes the U.S. Justice Department’s former Assistant Attorney General for the Environmental and Natural Resources Division, who had significant involvement in counseling federal government agencies on policies regarding greenhouse gases, as well as in overseeing the defense of government regulations in virtually all other environmental matters.
Our attorneys, including those in other practices, closely monitor greenhouse gas–related activity at the federal, state, and international levels. They have produced frequent advisories examining the ramifications of policy changes, court rulings, and other developments, such as government incentives for renewable energy.
Compliance and Permit Matters
We handle the complex and often delicate processes and interactions involved in obtaining permits companies need in order to operate or expand their facilities, with conditions that allow the client to economically operate in an environmentally sound manner. Morgan Lewis attorneys—including a lawyer who for years taught environmental law to the U.S. Army Corps of Engineers, another who has concentrated on air-quality issues for three decades, and a third who is the former chairperson of the Environmental Appeals Board—have assisted chemical, petroleum, and pharmaceutical clients, among others, to review existing permit applications and to negotiate new and updated permits. We provide or participate in seminars for major companies and trade groups, and we develop explanatory materials, such as the handbook Title V Permitting Under the Clean Air Act, and model rules for use by private industry and government officials.
Our representations include obtaining Clean Air Act Title V operating permits; assisting clients in complying with the government’s Prevention of Significant Deterioration (PSD) and New Source Review (NSR) enforcement initiatives and associated Section 114 requests; and providing advice in connection with the National Emission Standards for Hazardous Air Pollutants (NESHAPS). We also have counseled extensively on Clean Water Act permits under the National Pollutant Discharge Elimination System (NPDES) and on Section 404 dredge and fill permits issued by the U.S. Army Corps of Engineers. We advise on the applicability of certain requirements, such as NSR; develop “lowest achievable emission rate” technology advocacy strategies; and offer advice regarding the availability of emission reduction credits. We also counsel clients on responding to state and regional air and water permit requirements and in securing state concurrences to federal agency actions, needed under the Coastal Zone Management Act and Clean Water Act, when federal agencies are granting licenses of giving approvals.
In other sectors, we handle FIFRA matters such as pesticide registrations, including those for genetically engineered products, and we provide advice on registration standards and on reporting “unreasonable adverse effects.” We also advise clients regarding premanufacture notices and significant new use notices issued under TSCA, assist companies with various reporting and recordkeeping requirements and provide guidance on import and export issues. Additionally, we counsel on Resource Conservation and Recovery Act (RCRA) and state hazardous waste permit issues, such as modifying or terminating permits to reduce costs, and we facilitate plant modifications and property transfers.
Regarding land use, Morgan Lewis attorneys represent clients in securing approvals for real estate development and use, including participating in the preparation of initial studies and environmental documents required under the National Environmental Policy Act (NEPA) and state equivalents such as the California Environmental Quality Act. We also work to obtain discretionary approvals, including amendments to general and specific plans and rezoning and use permits, as well as those needed to comply with species protection laws.
Enforcement Action Response and Prevention
Our attorneys, among them numerous former federal prosecutors, regularly represent clients in agency matters, assisting with responses to actions such as Notices of Violation, Notices of Intent to Suspend, and EPA objections. We also assist clients before state and regional agencies in negotiations concerning corrective actions such as cleanup and abatement activities, and in responding to cease-and-desist orders. In all these matters, we seek resolutions, including settlements, that reduce costly litigation while allowing the client to operate economically and efficiently and with a minimum of regulatory intervention.
Often, we have convinced government regulators to drop investigations before bringing enforcement actions after conducting comprehensive internal investigations clients and presenting a prospective defense to the involved agency. Ideally, however, we work to prevent problems before they arise by performing environmental audits, analyzing compliance issues, and developing training tools and teaching seminars to executives and employees.
Morgan Lewis attorneys regularly participate in the development of regulatory programs by preparing comments and advocating for our clients’ interests and on behalf of industry groups. For instance, we have been involved in every phase of Title V program development—one of our attorneys was named by the EPA to a Title V permits roundtable—and we have participated in responding to such agency proposals as those involving enhanced monitoring and the “credible evidence” rule. We have developed numerous recommendations that were adopted by the EPA to streamline permit applications and the permits themselves.
Regarding other forms of environmental rulemaking, we have submitted data and comments regarding water quality effluent guidelines and challenged EPA biomonitoring limits. We counsel on the development of drinking water standards and have prepared comments on proposed EPA and state rules governing hazardous substances. We also represent individual clients and industry groups in court challenges to government regulatory schemes.
Special Projects and Industry Groups
Morgan Lewis serves as counsel to or leads several organizations that engage with regulators and policymakers on behalf of broad industry sectors, and that provide businesses a broad range of informational and educational services. These organizations include:
- The Clean Air Implementation Project, made up of major industrial companies, which has participated in the development of virtually all major EPA clean air guidances and rulemakings since the early 1990s.
- The Clean Air Act Information Network, which provides members educational services and information regarding the implementation of amendments to the nation’s basic air quality law.
- The RCRA Corrective Action Project, which was formed in 1988 by a group of Fortune 50 companies to advocate cost-effective cleanup standards and to help keep members informed of critical issues through discussions with each other and senior EPA officials.
- The Superfund Settlements Project, a group of major corporations that seeks solutions to recurring problems that delay the resolution of Superfund cases. The project’s primary goal is to resolve Superfund cases in a prompt and equitable manner and to minimize transaction costs associated with Superfund implementation. The group has worked closely with the EPA and the Justice Department, and has testified before Congress regarding both liability and settlement issues.