Environment and Natural Resources

We have guided public and private sector clients through the environmental aspects of hundreds of development projects. Our development work ranges from unimproved land to brownfield properties with significant remediation issues.

Ballard Spahr is home to top-ranked, full-service practices in real estate and energy project development. They rely on us to address environmental issues, when necessary, at any stage of a real estate or energy project—giving us first-hand experience in a vast range of project types and industry sectors.

We provide site and risk assessment during acquisition and expansion, advise on permitting issues, and help clients manage natural development constraints. We guide clients through regulatory hurdles, including laws governing threatened or endangered species, sensitive natural resources, and environmental remediation obligations. We also represent clients facing regulatory impediments to reuse projects.

We counsel clients on emerging opportunities associated with green environmental and energy practices and with natural resource development projects, including mining or gas extraction activities involving resources such as waste coal or shale gas.

Our work also includes helping clients satisfy obligations and qualify for environmental liability protections, including those related to voluntary state cleanup programs. We advise on brownfield incentive programs and tax abatements.

With nationally recognized skill in environmental law, energy and project finance, real estate, intellectual property, and litigation, we offer comprehensive, integrated climate change and sustainability services to clients in government and the private sector.

We help clients develop, sell, acquire, invest in, or finance energy projects and operations. We advise on green building and leveraging government incentives, counsel on ESG considerations, and help protect and monetize cutting-edge energy and environmental technologies and processes. Our work spans transactions, compliance, and regulatory comment and litigation.

We helped the U.S. Department of Energy provide technical assistance to state and local governments in developing financing mechanisms to promote clean energy and energy efficiency. We assisted in the development of innovative financing structures, such as sustainable energy utilities and PACE programs. And we routinely guide municipalities in preparing for the risks associated with climate change and factoring those considerations into their municipal disclosures and planning. We stood behind the City of Philadelphia as it developed financing tools to implement its Green City/Clean Waters program, utilizing green infrastruture to manage impacts from stormwater infiltration into the City sewers.

The team has represented clients in litigation involving greenhouse gas emissions in the D.C. Circuit and the U.S. Supreme Court, including the representation of leading world climate scientists who appeared as amici in Massachusetts v. EPA. We have represented leading clean energy utilities at all stages in litigation supporting major air rules imposing costs on emissions of pollutants from the power industry, including EME Homer City v. EPA and Michigan v. EPA. We are working with a variety of clients in assessing and commenting on states’ efforts to implement federal climate requirements.

Our work includes all forms of fossil fuel-based and nuclear facilities, as well as alternative energy projects, such as waste-to-energy biomass and renewable energy developments. We advise on:

• Opportunities and challenges presented by emerging laws and regulations
• Strategies for capturing opportunity and reducing emissions
• Regulatory compliance and ESG reporting
• Permits, approvals, development issues, and financing
• Development of state, regional, and local climate policies
• Registering and trading carbon reduction and renewable energy credits in regulated and unregulated markets
• Disclosure of climate change risks under securities laws
• Public-private partnerships
• Green building and infrastructure financing and development
• Tax credits and government incentives
• Product labeling and certification

Our litigation strength is well-known. We handle governmental and third-party regulatory or enforcement claims and resolve issues involving existing or historical contamination liabilities.

Our environmental litigators represent clients in administrative, civil, and criminal proceedings, and have achieved successful outcomes in defending air-quality permits, contamination liability disputes, challenges to environmental impact assessments, and appellate litigation of federal rulemaking. We also recognize when cases are more appropriately negotiated and settled, including those involving toxic tort and environmental damage claims.

Civil Enforcement and Tort Litigation

We regularly represent clients in enforcement actions in which the government or citizens allege violations of air, water, waste, and wetlands regulations. In addition, we have represented clients in actions to enforce other environmental programs: the registration programs for pesticides and disinfectants, the special rules for toxic substances such as PCBs or hazardous air pollutants such as asbestos, and the rules for sales of fertilizers and soil amendments. These actions can arise when regulators seek to compel compliance or to recover penalties. They also may involve citizen suits, which we have both defended and prosecuted.

Our environmental litigators have appeared before all levels of state and federal court; administrative agencies, such as the U.S. Environmental Protection Agency, U.S. Environmental Appeals Board, Department of Energy, U.S. Army Corps of Engineers, National Oceanic and Atmospheric Administration, and Department of Transportation; and state and local government agencies and tribunals.

We defend clients against allegations involving:

• Hazardous waste transportation, storage, and disposal regulations
• Wastewater discharge and pretreatment
• Underground storage tank issues
• Groundwater contamination
• Hazardous materials transportation
• Infectious waste packaging, transportation, and disposal
• Air emissions, including those related to the New Source Review program
• PCB transformer recordkeeping violations
• Asbestos removal and disposal
• Controlled substance recordkeeping
• Contaminated soil disposal violations
• Unpermitted dredge or fill activity or wetlands encroachment
• Storm water control violations
• Erosion and sediment control failures

Criminal Enforcement

Several members of our team are also members of the firm’s White Collar Defense/Internal Investigations practice. They represent corporate and individual clients in criminal investigations and prosecutions by the U.S. Department of Justice, the EPA's Criminal Investigation Division, and state and local attorneys general, as well as in private, internal investigations. These matters have involved alleged violations of:

• Asbestos control regulations
• Wastewater discharge permits or pretreatment programs
• Fish kills resulting from unintentional discharges of hazardous substance or thermal discharges
• Hazardous waste management, labeling, storage, and transportation regulations

Superfund And Clean-Up Litigation

We represent clients in connection with some of the most significant Superfund environmental remediation, cost recovery, and contribution matters in the United States. Several of these matters involve resolution of natural resources damages claims. Our work ranges from complex cleanup cases involving multiple parties and issues to disputes involving allocation of environmental liability.

Endless negotiations without litigation often characterize Superfund matters. We believe in settling cases that should be settled as quickly as practicable. Those that cannot, we treat as lawsuits and resolve efficiently through litigation.

Our team deals extensively with Superfund and natural resource damage activity on the administrative and litigation levels. We help clients address contamination liability issues and resolve disputes with regulators and others so that transactions or redevelopment plans can move forward.

We handle governmental and third-party regulatory or enforcement claims and resolve claims relating to existing or historical contamination liabilities.

Our representations include:

Boarhead Farms Site, Pennsylvania (illegal waste disposal)

Helen Kramer Landfill, New Jersey

Passaic River/Newark Bay litigation, Newark, New Jersey

Bonanza Mine (ASARCO v. Raytheon)

Motorola 52nd Street Superfund Site, Phoenix, Arizona

Constitution Road, Atlanta, Georgia

Energy

We represent clients engaged in natural resource development, including mineral development, energy and petroleum production, and water use. Our attorneys help clients employ advocacy or litigation strategies to facilitate access to natural resources, including those involving the Marcellus Shale. We also help them apply new energy technologies and evaluate the effects of environmental regulation on electricity pricing.

These clients range from entities engaged in coal and hard-rock miners and municipalities managing water-use practices in the Southwest to developers and landowners connected to shale gas formations, such as the Marcellus Shale natural gas field in Pennsylvania and surrounding states. Our experience includes work in the upstream, midstream, and downstream segments of the energy business.

Power

We represent some of the nation’s largest electric generators and renewable energy developers and investors. Our work has included siting and compliance advice, nuisance litigation, transactional due diligence and advocacy ranging from municipal authorities all the way up to the United States Supreme Court. We understand the implications of regulated and wholesale electric power markets on operations and on the business imperatives facing our clients, and we play a large role in continued evolution of the electric power sector.

Natural Resources

We guide clients in complying with the many laws governing natural resources. Our oil, gas and mineral clients look to us for representation in connection with their exploration, development, operation, transport, and production projects. We routinely handle compliance and remediation issues involving natural resource extraction projects, and we work closely with lawyers in our Energy and Project Finance Group on matters related to project siting and the creation of interstate pipeline systems. Our clients include public land users, so we defend projects on federal and state land facing allegations based on impacts on the environment and sensitive species.

Clearly articulated, legally defensible compliance strategies help avoid unnecessary business interruption and promote the safety of employees and the community. In addition, many enforcement agencies look more favorably upon an organization if it has a policy and follows it. To meet the requirements of investors focused on environmental stewardship, we formed an ESG team to help clients improve their environmental, social, and governance profiles.

We perform environmental audits, develop corporate compliance and document retention policies, conduct internal investigations, and provide in-house training for incidents and searches. We counsel energy sector clients on traditional environmental regulatory matters, and we assist in developing business strategies that capitalize on environmental opportunities or address regulatory challenges.

Our attorneys are active in air quality regulation and litigation and are well-versed on issues involving water pollution and water use, shale oil and gas extraction activities, and environmental impact evaluation matters, particularly those arising in projects in which the government is involved. Our attorneys have played leading roles in a broad range of climate and sustainable development-related activities, from public sector program design and Supreme Court litigation to innovative management and compliance strategies.

Our attorneys continually review and analyze industry developments and evaluate potential legislation, regulatory developments, and relevant science—which helps to keep our clients and their shareholders prepared and avoids unnecessary business interruption.

We have obtained permits, challenged permits with unsatisfactory conditions, and defended permits against third-party challenges for a wide range of businesses subject to environmental regulation. Our clients’ projects have included power plants, factories, waste management facilities, mines, and refineries, as well as biopharmaceutical research companies, real estate developers, and municipalities.

We also have challenged permits issued to others. In the context of permitting strategy, we have helped clients develop and audit environmental recordkeeping and reporting systems, environmental management systems, and corporate sustainability policies.

• We have assisted clients in obtaining permits for:
• Fossil fuel-fired and waste coal-fired power plants
• Nuclear power plants
• Oil refineries
• Manufacturing and other industrial operations
• Alternative and renewable energy facilities
• Complex real estate developments
• Landfills, transfer stations, and waste-to-energy, medical, and hazardous waste facilities
• Industrial boilers
• Backup generators

When conventional permit rules do not offer sufficient operational flexibility to our clients, we have coupled permit negotiations with enforcement settlements or other arrangements that allow environmentally beneficial results consistent with business imperatives. Our work has included crafting agreements that extend arrangements beyond permit terms or allow facilities extended times to comply. We also address permitting issues that involve offsets or trades of emission reductions or habitat enhancements.

We also represent clients in appealing permitting decisions or disadvantageous permit conditions, and we advocate for third parties that support or oppose an appeal.

We routinely counsel clients on environmental risks and liabilities in a variety of transactions for our corporate, real estate, and finance clients. We draft complex environmental provisions in purchase/sale, merger, and finance agreements, to name a few. We conduct environmental due diligence for clients involved in business acquisitions, sales, and financings, and conduct environmental review and permitting matters for a wide range of commercial, industrial, and other enterprises.

To help our developer clients successfully close complex transactions, we provide counsel on permitting, regulatory compliance, risk management, brownfields program rules, and water-related issues such as pre- and post-construction storm water control, waterfront and wetlands development, green infrastructure, and drinking water and sewerage supply.