Environmental Litigation + Regulatory

From natural resource and clean technology issues to chemical disclosure requirements, we take on our clients’ most complicated environmental matters and, when we go to court, we win.

MoFo’s Environmental team knows the laws and regulations that are the most important to our clients.

  • Environmental + Toxic Tort Litigation – We’re known for taking on some of the most complicated environmental problems our clients face—and when we go to court, we win. (Read more)
  • Environmental Permitting + Regulation – By applying our deep experience and insider knowledge, we help our clients obtain associated local, state, and federal government permits and approvals. (Read more)
  • Environmental Marketing + Advertising – We advise clients about risks and exposure related to “greening” operations and products, especially in communicating socially responsible or environmental attributes on products and labels. (Read more)

Environmental + Toxic Tort Litigation

We’re known for taking on some of the most-complicated environmental problems our clients face—and when we go to court, we win. We also know how to litigate complex scientific and regulatory issues by recruiting superior experts and structuring complex litigation and trial testimony that is convincing and persuasive to judges and juries. Combining these skills with MoFo’s world-class litigation department, we put together formidable trial teams that can take on any opponent.

Our lawyers have litigated cases throughout the spectrum of environmental law:

CERCLA/RCRA Litigation: We have extensive experience with complex litigation under the U.S. Comprehensive Environmental Response, Compensation, and Liability (CERCLA) and Resource Conservation and Recovery Acts (RCRA). We help our clients defend these claims and related contribution and cost-recovery actions; we’ve even asserted a few to make our clients’ burdens more tolerable by sharing the pain with other responsible parties. We have also litigated and settled several hazardous waste enforcement actions brought against manufacturers and leading retailers.

Natural Resources and Endangered Species: We have handled some of the most challenging and complex Endangered Species Act, Clean Water Act, and water rights matters in the United States by integrating science with law to win.

Land Use Litigation: Our lawyers are experienced in environmental planning, and we bring that knowledge to our litigation practice. We know the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) processes inside and out, and we advise our clients from the planning stage through litigation. We have a strong reputation for aggressively defending clients against specious claims aimed at stopping projects rather than at protecting the environment.

Where litigation doesn’t make sense, our lawyers achieve early, cost-effective, and favorable resolution of environmental matters for our clients. Because we invented the prototypes, we know how to structure individual and group settlements. Because the relevant regulatory and enforcement agencies know and respect us, we can enlist their help in getting settlements approved.

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Environmental Permitting + Regulation

Successfully navigating the environmental regulatory landscape takes two things: knowledge and relationships. Our lawyers bring those—and more.

Morrison & Foerster’s environmental lawyers know that the permitting and regulatory process can seem endless and unmanageable at times. By applying our deep experience and insider knowledge to providing practical advice to businesses and public agencies on a broad variety of environmental, natural resources, and product-related regulatory and enforcement issues, we help our clients obtain associated local, U.S. state, and federal government permits and approvals.

Our lawyers have substantial experience in the full spectrum of environmental, natural resources, and product-related laws and regulations.

Our strengths in this practice area include:

Compliance and Enforcement ‒ We help our clients develop proactive approaches to avoid litigation. We also work with clients and their consultants to audit compliance programs, develop associated training, and address instances of potential non-compliance before enforcement action is initiated. When enforcement is threatened or initiated, we work with our clients to assess the issues raised, present defenses, and—when necessary—negotiate settlements on acceptable and sensible terms.

Due Diligence and Counseling ‒ We perform both environmental and land use due diligence and counseling, advise on associated risks and environmental impact review processes, and assist with structuring environmental and entitlement provisions of corporate asset and real property transactions.

Natural Resources ‒ Our practice includes broad experience in natural resource permitting; endangered species; wetlands; coastal development; water rights and transfers; and timber, mining, and water regulation. We know how to work with the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency (EPA), and state resources and water agencies to get permits and navigate the approval process.

Emerging Issues ‒We stay abreast of new trends and concerns so we can advise clients about new environmental issues involving climate change, greenhouse gas emissions, carbon trading, and renewable and non-renewable energy. Our lawyers also are authorities on sustainability and environmental advertising, building, and chemistry-related issues, and associated emerging regulatory regimes in those areas.

Having served on the inside, our lawyers have intimate knowledge of the workings of U.S. state and federal agencies, including those within the EPA, U.S. Department of the Interior, U.S. Department of Commerce, U.S. Department of State, and U.S. Department of Justice. We also have valued relationships with senior officials in key California agencies, such as the Lawyer General’s Office, California Air Resources Board, state and regional water boards, Office of Environmental Health Hazard Assessment, and Departments of Fish and Wildlife and Toxic Substances Control.

Our lawyers bring decades of experience in timber, mining, water, and other resources law to our clients, having represented real estate developers and public agencies in a broad range of litigation, regulatory, and environmental matters. MoFo’s extensive regulatory capability and knowledge of the industry mean that we are retained to handle the most-complex matters.

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Environmental Marketing + Advertising

Morrison & Foerster lawyers advise clients about risks and exposure related to “greening” operations and products, especially in communicating socially responsible or environmental attributes on products and labels. We have experience in recognizing, certifying, selling, trading, and using environmental attributes and credits (such as carbon offsets) that result from the manufacture and use of our clients’ products and services. We help clients construct and refine marketing claims and advertisements that refer to green or environmental attributes of the company or its products, services, or operations, while minimizing associated enforcement and litigation risks.

We also advise our clients on green marketing and advertising laws and regulation, including claims of false or misleading marketing and advertising. We defend and resolve administrative or litigation proceedings brought under the Lanham Act, Federal Trade Commission (FTC) Act, or their state law equivalents. We also handle U.S. federal and state government enforcement actions and litigation—whether by competitors or consumer classes—along with administrative actions related to social responsibility, sustainability, and various green representations and claims. Our lawyers participate actively in the FTC’s evaluation and potential updating of its so-called “Green Guides,” which provide guidance on an array of environmental marketing and advertising practices, as well as the emerging renewable energy credit (REC) sector.

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Experience

  • Represent a global aerospace and defense company as lead trial counsel in a $600 million class action alleging environmental contamination and toxic tort claims in the Eastern District of New York.

  • Represent the state’s largest retailers to address ambiguities and contradictions in the state’s hazardous waste regulations, which have proven to be a trap for the unwary. We chair this effort. Retailers have been fined hundreds of millions of dollars for violation of California’s hazardous waste regulations, which were designed for industrial facilities producing toxic wastes. Retailers must now handle products such as vitamins, cosmetics, and shampoo as “hazardous waste” if they are expired or no long usable. Application of these rules to such products was clearly not anticipated when the rules were adopted, and they are ill-fitting.

  • Represented railroad intermodal facility operator in enforcement action by California Air Resources Board alleging that the company was required to collect and report vehicle identification numbers from all trucks visiting the their facilities. Collecting such information is impractical and would reduce the flow of traffic-causing congestion and additional air pollution. Successfully settled the action with innovative compliance approach that avoids the requirement to collect VIN numbers.

  • Clorox Company as outside counsel on legacy groundwater contamination matter and related regulatory negotiations and associated response to citizens group’s threatened claims. Also serve as litigation defense counsel on citizens group’s failure to disclose claims against products marketed under Kingsford Products subsidiary.

  • In California’s largest environmental settlement in 2006, we recovered $148 million in past and future cleanup costs for contamination at the San Francisco International Airport. The settlement with SFIA tenants included an innovative “pay-as-you go” program that allowed the responsible parties to reduce transaction costs and defer payment of cleanup costs until they are actually incurred.

  • We favorably settled a decade-long case on behalf of Kerr-McGee against the U.S. Government claiming that an order requiring Kerr-McGee to clean up an abandoned uranium mine was invalid and that the U.S. was liable for a share of the costs of cleanup. After a decade, the case settled with a remedy that cost a total of less than one quarter of the original amount and with a significant contribution to that reduced expenditure from the United States and other parties.

  • We represented the Santa Clara Valley Water District in a CERCLA action concerning mercury contamination in the Guadalupe River Watershed and South San Francisco Bay. Through extensive engagement with the U.S. Fish & Wildlife Service, we were able achieve to an expeditious resolution of claims by negotiating an agreement allowing our client and other PRPs to implement local restoration and enhancement projects in lieu of paying either compensatory damages or federal or state oversight costs or legal fees.

  • On behalf of our clients, we won summary judgment in a Proposition 65 suit filed against SmithKline, Johnson & Johnson, and 15 other manufacturers, marketers, and retailers of Nicoderm CQ, Nicorette, and Nicotrol, smoking cessation products used to help people quit smoking. The lawsuit alleged that the pregnancy warning language on the products did not satisfy Proposition 65’s requirements. The California Lawyer General intervened on behalf of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. The Supreme Court’s decision was the first favoring a defendant’s position in Proposition 65 action, the first holding that Proposition 65 could be and was preempted by federal law, and the first ruling that the state could not defeat preemption by requiring off-label advertising.

  • Representing two companies in one of the largest groundwater contamination cases of its kind (TCE, PCE, DNAPL, and perchlorate), involving a precedent-setting issue of whether a water district has the ability to create its own mini-Superfund. Obtained summary judgment for both companies.

  • In one of the state’s largest RCRA cases set for trial in 2012, obtained cleanup and injunctive relief for solvent (toluene and methane) contamination on behalf of Newark Industries caused by a prior facility operator, and recovery of more than $1.1 million in attorney fees and costs.

  • In addition to our work for American Pacific in its space flight and fine chemicals activities, we advise the company regarding the development and sale of water treatment chemicals and systems for on-shore and off-shore petroleum production facilities, as well as in water-related issues associated with production of specialty chemicals and pharmaceuticals. American Pacific is a manufacturer of active pharmaceutical ingredients and registered intermediates, energetic products used primarily in space flight and defense systems, clean fire-extinguishing agents, and water treatment equipment and chemicals.

  • We represented the Great Basin Unified Air Pollution Control District in its efforts to control the largest source of particulate air emissions in the country, the Owens Dry Lake bed, enacting new provisions of the State Implementation Plan under the federal Clean Air Act that will involve replacing water in the lake bed and, as a consequence, restoring a portion of the lost ecosystem.

  • We conducted environmental due diligence in connection with Sumitomo’s acquisition of German injection moulder Demag Plastics Group from MPM Holdings, including drafting indemnity provisions in connection with Demag’s existing and historical operations.

  • We currently are representing Union Pacific Railroad Company in an effort to mediate the settlement of a case pending on appeal where the trial court granted our client's claims to invalidate air pollution rules. We also are advising Union Pacific on additional environmental matters, including health risk assessments to predict the incidence of cancer and other diseases in neighborhoods surrounding major railyards throughout CA, greenhouse gas inventory, and emissions reduction strategy.

  • Represent 15 Silicon Valley municipalities on National Pollutant Discharge Elimination System (NPDES) stormwater permitting issues resulting from the federal Clean Water Act and California Water Code. Also represent these municipalities in total maximum daily load (TMDL) and other water-quality-related proceedings and on unfunded mandate claims. Representation of the City of Sunnyvale, California also extends to permitting and enforcement issues related to its publicly owned wastewater treatment plant (POTW).

  • We advised Genentech in replanning its headquarters campus, assisting in land acquisition and securing all authorizations to double (more than 6 million square feet) the company’s headquarters campus in South San Francisco through approval of a new master plan, environmental impact report, and expansion of the Genentech R&D District. This project involved replacing existing buildings and providing for infrastructure improvements and financing to serve the new buildings. We also represented this client in the siting of its $750 million, three-phase biopharmaceutical manufacturing facility on 50 acres in the City of Vacaville, assisting in processing the necessary land use and environmental approvals, managing the environmental review under CEQA, and negotiating a development agreement with the City of Vacaville and the Redevelopment Agency.

  • We have served as counsel to the San Diego County Regional Airport Authority since its establishment. We advised the Authority on compliance with all state and federal laws relating to the establishment of the operation of the Authority, such as the Brown Act and the Political Reform Act, as well as California public contracting laws and public employment laws. We handled the transfer of the airport, and its assets, personnel, and operations from the Port of San Diego to the Authority. We drafted new codes and policies to guide the new Authority’s activities, including its Disadvantaged Business Enterprise Program and related concession plan for SAN. In addition, we successfully resolved claims the Authority had inherited under construction contracts for the Quieter Homes Program. We continue to assist the Authority on a wide variety of matters, including its first Airport Master Plan and the Environmental Impact Report on that Plan, both adopted in May 2008, and the construction of Terminal 2 West, as well as litigation with the exclusive FBO operator.

  • Advise FirstSolar, a major developer of utility-scale photovoltaic solar facilities, on environmental, land use, natural resource, and real estate aspects of complex solar permitting, transmission, and facility development, including compliance with NEPA and the CEQA, the federal and California Endangered Species Acts, the Williamson Act, and local zoning and related laws and regulations.

  • Obtained final approval from Foster City in connection with Gilead’s proposal to double the size of its headquarters/R&D campus. The city approvals included a new corporate campus master plan for the 40-acre campus, environmental impact report, rezoning for greater density and less parking, and a 20-year development agreement to protect Gilead’s rights under those approvals. Contemporaneously, Foster City agreed to transfer to Gilead roadways and water and wastewater facilities that run through the property, allowing Gilead to create a compact and unified campus. During this process, we also represented Gilead in its acquisition of Electronics For Imaging’s 30-acre corporate campus, which borders Gilead’s campus, including the transfer of EFI’s development entitlements for possible future Gilead expansion.

  • Advise Union Pacific Railroad on land use and other environmental permitting matters for $400 million rail facility in Los Angeles. Because of the opposition of some community groups, the project is undergoing a detailed environmental review.

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