Litigation & Appellate Review

Enforcement Proceedings and Litigation

Van Ness Feldman is an effective advocate before agencies and in the courtroom, whether clients face a difficult enforcement action or potentially costly cleanup liability. Among other matters, we have represented clients in private cost recovery actions, enforcement proceedings brought by EPA or state agencies, and review proceedings concerning conditions or denials of permits based on environmental or ecological requirements. These representations have resulted in numerous settlements and voluntary cleanup agreements, both with private parties and with governmental entities, and have greatly reduced both costs and uncertainty for our clients. In one case, after almost ten years of dialogue and additional study, EPA finally agreed to amend its Record of Decision and dramatically scale back the remedy it had chosen under CERCLA to clean up a closed municipal landfill. In another, EPA agreed to assign cleanup liabilities in a former mining district based upon the geographic location of each company’s former activities, notwithstanding EPA’s position that the environmental harm was indivisible throughout the mining district.

Although we have enjoyed considerable success in resolving conflicts informally and collegially, we do not hesitate to recommend more adversarial approaches. The firm’s litigation team includes former enforcement officials of the agency, some of whom were instrumental in developing key provisions of EPA’s settlement policy. Members of the firm have handled numerous environmental litigations, including judicial challenges to major EPA regulations. One such challenge, to effluent limitations for the secondary precious metals industry under the Clean Water Act, resulted in the government’s agreement to proposed revised regulations (which were ultimately enacted).