Environmental Litigation


Morrison & Foerster has one of the most sophisticated environmental litigation practices around. From natural resource issues to Proposition 65, we take on the most complicated environmental problems our clients face and, when we go to court, we win. This has not gone unnoticed. U.S. News & World Report/Best Lawyers 2015 ranked our group in Tier 1 for environmental law (San Francisco), environmental litigation (national), timber law (national), natural resources law (national) and land use and zoning (San Francisco).

Our success is the product of our unique interdisciplinary "one firm" approach. We have deep knowledge of the laws and regulations important to our clients. Many of our lawyers have served on the inside as regulators at the top environmental agencies. We also know how to litigate complex scientific and regulatory issues by recruiting superior experts and structuring complex litigation and trial testimony in a way that persuades judges and juries. Combining these skills with MoFo's world class litigation department and staff, we put together formidable trial teams that can take on any opponent.

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

  • 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 country, using our litigation team's unique approach of integrating science with law to win.
  • Land Use Litigation: Our attorneys are experts in environmental planning, and we bring that expertise to our litigation practice. We know the California Environmental Quality Act (CEQA) and the 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 against specious claims aimed at stopping projects rather than at protecting the environment.
  • Prop 65 and Related Class Actions: We have the best and most experienced Prop 65 team in California. We have won every case we have litigated to judgment. We know the most common Prop 65 plaintiffs and the class action counsel with whom they often collaborate. And we have negotiated the most significant and creative settlements for our clients.
  • CERCLA/RCRA Litigation: We have extensive experience with complex litigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). We help our clients defend these claims and related contribution and cost recovery actions (and we have even asserted a few to make our client's 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.

Where litigation doesn't make sense, our lawyers achieve early, cost-effective and favorable resolution of environmental matters for our clients. Because we have 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.

TiO2 Joint Defense Group
Defended over 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, which is commonly used as a key ingredient in cosmetics and sunscreens, causes a risk of cancer. Our motion for summary judgment was granted in July 2015. Plaintiff’s expert admitted that he could not specify which TiO2-containing products might result in exposure, and all he could say was that it was more likely than not that some products would require a cancer warning. The court agreed with our argument that such expert opinion does not provide a “credible factual basis” for going to trial. Plaintiff has agreed not to pursue an appeal of the judgment.
Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.
(Cal. Superior Court, Alameda County). Scored trial and appellate victories for Del Monte, Dole, Gerber, Smucker’s, Welch’s, and 10 other companies in a case brought by the Environmental Law Foundation and Baron & Budd class action firm. Plaintiff argued that the companies’ baby food, fruit juice, and packaged fruit products must carry cancer and birth defect warnings because they contained trace levels of lead, notwithstanding the FDA’s findings that they were safe and posed no unacceptable health risk. The trial judge and unanimous panel of the California Court of Appeal rejected arguments that California’s Proposition 65 law required warnings on these products and rejected an enforcement policy long advanced by the California attorney general and numerous plaintiffs’ groups that falsely assumed that every type of food is consumed each and every single day of the year. This decision, considered to be one of the most significant in Proposition 65’s 25-year history, opens the doors to companies that wish to use expert testimony based on actual exposure data to defend themselves, and may have application, including to consumer class action cases, going forward.
City and County of San Francisco
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.
Kerr-McGee Corporation
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 the original amount and with a significant contribution to that reduced expenditure from the United States and other parties.
Santa Clara Valley Water District
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.
SmithKline Beecham /Johnson & Johnson et. al.
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 Attorney 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.
The Pacific Lumber Company
We represented The Pacific Lumber Company and its subsidiaries in defense of an action seeking to overturn approvals and permits associated with Headwaters Forest agreement based on alleged failure to comply with Forest Practice Act, California Endangered Species Act, streambed alteration provisions of Fish and Game Code, and California Environmental Quality Act.
Orange County Groundwater Litigation
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. 
RCRA Contaminated Property Remediation Litigation
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.  
Metropolitan Water District of Southern California
Represent the nation's largest provider of treated drinking water in litigation challenging Biological Opinions issued by the U.S. Fish & Wildlife Service and the National Marine Fisheries Service restricting operation of the State Water Project.
Wild Equity Institute v. City and County of San Francisco, et al.
Defeated preliminary injunction and summary judgment motions that threatened to shut down the historic Sharp Park Golf Course, working pro-bono on behalf of the nonprofit defendant-intervenor San Francisco Public Golf Alliance (SFPGA). Environmental advocacy groups, led by the Center for Biological Diversity and the Wild Equity Institute, filed a lawsuit against the City and County of San Francisco seeking to shut down the Golf Course, alleging impacts to the California red-legged frog and San Francisco garter snake, both listed under the federal Endangered Species Act. Succeeded in getting the lawsuit dismissed after a U.S. Fish & Wildlife Service Biological Opinion substantiated our argument that extensive studies and expert scientific analysis support the claim that protected species and public golf can (and, indeed, do) enjoy a symbiotic relationship.

Chambers USA 2016
California: Environment

Legal 500 US 2016
Environmental Litigation
Environmental Transactional/Regulatory

U.S. News – Best Lawyers® Best Law Firms 2015
National: Litigation – Environmental (Tier 1)
National: Natural Resources Law (Tier 1)
National: Timber Law (Tier 1)
San Francisco: Environmental Law (Tier 1)
San Francisco: Litigation – Environmental (Tier 1)
San Francisco: Natural Resources Law (Tier 1)
San Francisco: Timber Law (Tier 1)
Los Angeles: Litigation – Environmental (Tier 1)
Washington D.C.: Natural Resources Law (Tier 1)

Here is what they say about us:

“They can always access the right agencies and understand the law thoroughly. They are always responsive and deliver a good work product.”
(Chambers USA 2016)

“We look to them to bring depth and knowledge for some very complicated regulatory requirements.”
(Chambers USA 2015)

“Morrison & Foerster LLP’s environmental litigators show ‘great strategic capabilities.’”
(Legal 500 US 2015)

The Recorder has named Morrison & Foerster to its inaugural list of "Leading Northern California Environmental Law Practice Groups."

GE

“They can always access the right agencies and understand the law thoroughly. They are always responsive and deliver a good work product.”
(Chambers USA 2016)

“We look to them to bring depth and knowledge for some very complicated regulatory requirements.”
(Chambers USA 2015)

“Morrison & Foerster LLP’s environmental litigators show ‘great strategic capabilities.’”
(Legal 500 US 2015)

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