Environmental Counseling & Litigation

Our environmental lawyers interact with the regulatory agencies that administer rules and laws imposed by national and state authorities. We obtain permits and negotiate their terms, enabling our clients to operate and expand within the context of applicable statutes and policies. We arrange settlements of enforcement actions, negotiate remedies, challenge and comment on proposed rules, and represent our clients’ interests and industry groups when policies are being set.

This work draws on the experiences of government alumni on our team. They include a former White House counsel, a former Assistant Attorney General for the Environment and Natural Resources Division of the US Department of Justice (DOJ), and a former chief executive of California’s primary air pollution agency.

We closely monitor emerging laws, regulations, and policies related to climate change. We help companies respond to this evolving area of regulation in ways that align with their business objectives. Using the firm’s global platform and insight into the policy process, our lawyers advocate for our clients’ positions to government officials, giving clients a voice in the dialogue on climate change.

We also work with clients on environmental and climate change disclosure requirements in US Securities and Exchange Commission (SEC) filings, and advise clients on compliance with carbon emissions control programs featuring cap-and-trade systems.

Integrating resources across the firm’s more than two dozen offices, our environmental/OSHA (US Occupational Safety and Health Administration) crisis team helps minimize the short- and long-term fallout for clients facing environmental and safety emergencies and associated agency investigations. In these situations, we immediately mobilize customized legal teams to contain matters through swift, thorough responses. We also manage relationships with government agencies, insurers, and public or private parties.

Our lawyers advise clients on how to avoid potential crises, and create customized emergency response plans designed to contain damage and exposure following an adverse event. The team includes lawyers with backgrounds in environmental regulation and government enforcement, worker safety and health, toxic tort defense, criminal defense, insurance recovery, congressional investigations, and media relations. Coordinated, precise deployment of these comprehensive resources helps minimize the consequences—including employee injury or toxic tort claims by exposed persons, and difficulty in recovering insurance assets. Our approach is designed to provide clients with efficient, integrated legal advice that covers the full spectrum of concerns.

When facing threatened or actual litigation relating to environmental laws and regulations, clients are best served by trial-tested lawyers. Our lawyers regularly represent companies across the United States in complex matters under both US federal and state law. These cases often involve multiple parties with competing interests. We also handle disputes in a number of global venues, including the London Commercial Court, and in arbitrations controlled by internationally recognized rules.

We develop successful strategies to handle high-stakes Superfund cost-recovery matters, mass toxic torts, citizen suits, government enforcement actions, appeals, and insurance recovery disputes. Our environmental litigation lawyers include former high-ranking federal and state government lawyers, including the DOJ’s former assistant attorney general for the Environment and Natural Resources Division as well as a number of former US attorneys.

We also litigate commercial disputes involving environmental indemnity and warranty provisions included in facility or product sale agreements. These matters can surface postclosing through an environmental crisis incident, a government enforcement action, or an internal audit. Whatever the source, the financial stakes can be significant. Such disputes are likely to require high-level commercial litigation and environmental capabilities, and can be complicated by possible government enforcement or other lawsuits beyond the immediate commercial disagreement.

When environmental issues intersect with business and real estate matters, Morgan Lewis provides comprehensive and coordinated representation. Our team has a collective command of the critical finance, land use, real estate, energy, and transactional concerns that come into play. We represent buyers, sellers, investors, lenders, and venture capital funds in mergers, acquisitions, asset and stock deals, and real property transactions, among other matters.

Our lawyers are familiar with the suite of US federal and state environmental statutes that may affect projects of any size. These include the US National Environmental Policy Act (NEPA) and its state counterparts, such as the California Environmental Quality Act (CEQA), which may have special importance for projects on or near environmentally sensitive lands.

We advise clients across geographic and industry boundaries to identify risks, defend projects or acquisitions, and negotiate deals that properly allocate environmental risks. Our practice is well versed in developing strategies aimed at favorably resolving complex matters, including those arising from projects on brownfields property, such as energy facilities. 

Morgan Lewis offers the critical combination of subject-matter command, government-agency insight, and geographic reach necessary to steer clients clear of criminal prosecution in environmental matters. We also work to favorably resolve enforcement proceedings. Our environmental crimes team includes white collar, environmental, and OSHA lawyers—and among them, many former federal prosecutors and agency attorneys with years of experience trying environmental cases. Our interdisciplinary team includes the former assistant attorney general for the DOJ’s Environment and Natural Resources Division—the only person to have served both as the government’s top environmental enforcement lawyer and as a US attorney—and several other former US attorneys.

Our insurance recovery lawyers help clients manage their environmental liabilities by maximizing and preserving the value of their insurance assets. Working in tandem with colleagues in other practices, we assist companies at every critical step. This includes everything from advising clients on procuring environmental insurance to securing and protecting maximum recoveries when claims are filed.

On behalf of many prominent US companies, Morgan Lewis lawyers prosecute, negotiate, and bring to trial major environmental insurance claims, often employing innovative alternative fee arrangements. Our lawyers are admitted to practice in a dozen key jurisdictions, and we handle claims or adjudications in all US states and around the world. This geographic reach allows us to pursue actions in the jurisdiction most favorable to our clients, without undue delay.

Close coordination between our energy and environmental practices means that we are particularly well equipped to meet the unique environmental needs of the energy industry. Our team, which includes a number of lawyers who formerly held senior positions within government and energy companies, assists clients engaged in energy development, production, distribution, and energy-related technology innovation. We advise clients on US federal and state environmental laws and agencies that come into play when seeking permits, siting or expanding facilities, engaging in transactions, confronting government enforcement, participating in cleanups, or litigating disputes.

We provide full-service regulatory and litigation representation—including civil and criminal, transactional, and insurance recovery—to companies in environmental matters arising from US federal and state statutory requirements, agency regulatory programs, and common law. We counsel clients on their interactions with regulatory agencies when seeking permits or permit modifications for new, modified, or expanded facilities. We also negotiate permit conditions.

Morgan Lewis lawyers advise clients on compliance and best practices to reduce the threat of enforcement actions or litigation. We also develop customized training programs to help our clients significantly reduce regulatory risk.

Our lawyers work with all major environmental agencies and statutes, including:

Federal Laws

• Clean Air Act
• Clean Water Act
• Coastal Zone Management Act (CZMA)
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)
• Emergency Planning and Community Right-to-Know Act (EPCRA)
• Endangered Species Act (ESA)
• National Environmental Policy Act (NEPA)
• National Historic Preservation Act (NHPA)
• Oil Pollution Act (OPA)
• Resource Conservation and Recovery Act (RCRA)
• Safe Drinking Water Act (SDWA)
• Toxic Substances Control Act (TSCA)

Federal Agencies

• US Environmental Protection Agency (EPA)
• US Department of Commerce, including the National Marine Fisheries Service (NMFS)
• US Department of Defense (DOD), including the Army Corps of Engineers
• US Department of Energy (DOE)
• US Department of Justice, including the Federal Bureau of Investigation (FBI), Office of the Attorney General, and US Attorneys’ offices
• US Department of the Interior, including the Bureau of Land Management (BLM); Fish and Wildlife Service (FWS); Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE, formerly Minerals Management Service); and Office of Surface Mining (OSM)
• US Department of Transportation (DOT)
• Federal Energy Regulatory Commission (FERC)
• Nuclear Regulatory Commission (NRC)
• US Occupational Safety and Health Administration (OSHA)

State Laws

• California Environmental Quality Act
• California Global Warming Solutions Act
• California Proposition 65
• Connecticut Transfer Act
• Delaware River Basin Compact
• New Jersey Industrial Site Recovery Act
• New Jersey Spill Compensation and Control Act
• New Jersey Air Pollution Control Act
• Pennsylvania Air Pollution Control Act
• Pennsylvania Clean Streams Law
• Pennsylvania Coal Refuse Disposal and Control Act
• Pennsylvania Dam Safety and Encroachment Act
• Pennsylvania Fish and Boat Code
• Pennsylvania Game and Wildlife Code
• Pennsylvania Land Recycling Act
• Pennsylvania Safe Drinking Water Act
• Pennsylvania Solid Waste Management Act
• Pennsylvania Surface Mining Conservation and Reclamation Act
• Susquehanna River Basin Compact

State Agencies and Regional Entities

• California Energy Commission
• California Environmental Protection Agency (Cal-EPA)
• Delaware River Basin Commission (DRBC)
• New Jersey Department of Environmental Protection (NJDEP)
• Pennsylvania Department of Environmental Protection (PaDEP)
• Western Climate Initiative (WCI)
• Regional Greenhouse Gas Initiative (RGGI)
• Susquehanna River Basin Commission (SRBC)

For decades, Morgan Lewis has represented and counseled companies and industry associations on regulations, litigation, and other issues related to the federal Clean Air Act and state air pollution control statutes. Our team is led by an attorney with 35 years of experience in federal and state air-quality issues, and another who served as the DOJ’s head of all environmental litigation, including air regulatory and enforcement matters.

Our clean air team helps clients with:

• National policy advocacy
• New source preconstruction permitting, Section 114 requests, and enforcement actions
• Title V permitting
• Air toxics matters
• Litigation involving rulemaking and implementation
• Enforcement defense
• Transactional and disclosure issues
• Responding to legal developments relating to climate change

Taking a proactive approach, we have founded and counseled industry groups that provide information about government policies and advocate a legal and regulatory structure that supports our clients’ business objectives. We also produce guidance materials to help companies through the permitting process, and review and analyze the requirements clients face when contemplating new projects.

When litigation or enforcement actions occur, our clients have access to the Morgan Lewis team anchored by former high-level government agency attorneys and trial attorneys. We regularly defend businesses in actions brought by public agencies and private organizations, and before administrative agencies as well as courts of all levels.

The global political and scientific responses to climate change pose tremendous uncertainty as well as significant opportunity for businesses. Morgan Lewis is positioned to assist companies in both circumstances. We help clients adapt to a new world of regulations, and capitalize on public and private resources available for clean technology, energy conservation, and emissions reductions. This work includes counseling on carbon trading programs and corporate disclosures of climate change risks.

We partner with companies potentially facing carbon constraints as a result of EPA mandates or regional control programs. We also advise clients on permits and reviews required for new low-carbon, renewable, and nuclear power generation and associated transmission, while securing financing and access to incentives. We structure clean-tech startups and defend their intellectual property, negotiate power purchase agreements, and litigate insurance recovery matters.