Environmental Litigation & Enforcement

Public and private entities must comply with myriad environmental and natural resource statutes and regulations. The federal, state, and local agencies charged with enforcing those laws have a wide array of tools for use against suspected violators. These enforcement mechanisms include criminal fines, criminal imprisonment of individuals, civil penalties, natural resource damages, civil forfeiture, and injunctive relief. Government enforcement comes from a broad array of agencies: DOJ, EPA, DOI, Fish & Wildlife Service, U.S. Coast Guard, and the U.S. Army Corps of Engineers, to name a few. State regulatory agencies, attorneys general, and even county district attorneys are acting too. Winston’s environmental litigation and enforcement defense team features the experience of having investigated and enforced environmental law across all these entities. Winston attorneys understand how environmental enforcers think, how they make decisions, and what arguments and risks move them, both in and out of court.

Having defended CAA cases at the state and federal level (including the U.S. Supreme Court), our clients rely on us not only to assess potential CAA exposure and manage associated risk, but also to efficiently and effectively represent their best interests in all phases of enforcement and permitting litigation, counseling, and general advice.

Clients engage Winston for our substantial experience reaching successful outcomes in CAA enforcement actions, particularly those involving New Source Review (NSR), National Emission Standards for Hazardous Air Pollutants (NESHAP), and Maximum Achievable Control Technology (MACT) requirements. We track developing regulations and regulatory actions to help clients create comprehensive compliance strategies for such activities as coal and gas generation. We also know how to interpret complex consent decrees involving pollution control negotiations, compliance schedules and methods, releases, penalties, and integration of the decree into existing Title V permits. In addition, our lawyers partner with EPA to resolve inconsistencies and potential consent decree compliance issues. We defend actions brought by third parties nationwide challenging permits, assist clients seeking to add new generation units to their facilities, negotiate on behalf of clients with state agencies, and frequently counsel clients on day-to-day compliance. Our attorneys also represent clients in connection with CAA Title II matters, including EPA renewable fuels investigations, mobile source emission certification, and importation matters.

The firm’s environmental litigators are experienced in handling matters involving nearly all aspects of the CWA, including wastewater, storm water, and wetland issues. We help clients—ranging from manufacturers to utilities, and from governments to individuals—reach favorable resolutions in civil proceedings brought by enforcement agencies, citizen groups, and criminal prosecutions. We have successfully defended and handled enforcement proceedings involving wastewater and storm water at the federal, state, and local levels, and at every stage of enforcement, through appeal. Our attorneys have also guided clients through many complex CWA enforcement issues brought by the DOJ and the EPA, including some that have involved hundreds of alleged violations. We have counseled clients on permitting and discharge issues, as well as conducted internal investigations and advised on self-disclosure and litigation-avoidance strategies. Our diverse experience brings value to our client relationships in reduced exposure to compliance costs, civil penalties, and injunctive relief, as well as awards of attorneys’ fees to prevailing citizen-plaintiffs.

Failing to properly navigate chemical and toxic-substance regulations can result in serious challenges for businesses whose products and waste are subject to compliance with the EPA’s stringent regulations. Clients choose Winston to represent them in litigation and enforcement proceedings involving federal regulations under the TSCA and FIFRA, as well as various state equivalents. Our attorneys have assisted clients with TSCA pre-manufacture notifications (PMNs), and significant new use rules (SNURs), as well as FIFRA registrations, tolerances, and labeling, and we have defended governmental enforcement actions under such laws. Armed with the right experience and knowledge of the substantive issues involved, Winston attorneys have successfully guided clients through the risks and liabilities associated with the manufacture, marketing, and use of chemical substances and the handling of chemical waste.

Winston represents clients at Superfund, Brownfield, corrective action, Formerly Utilized Sites Remedial Action Program (FUSRAP), Base Realignment and Closure Commission (BRAC), and other types of contaminated sites, such as landfills, recycling operations, industrial facilities, munitions depots, and riverbeds. We handle cost recovery and contribution actions on behalf of plaintiffs and defendants, as well as disputes regarding contract claims, successor liability issues, and statutory and common-law claims. Our lawyers have negotiated many unique settlements between current and prior owners and purchasers of contaminated sites, and we have developed innovative strategies to help clients avoid large transaction costs in these matters. We also handle the siting and permitting of industrial facilities, including solid waste, radioactive and mixed-waste sites, recycling, waste-to-energy facilities, as well as manufacturing sites.

Our attorneys not only help track regulatory developments, we can intervene effectively to litigate against arbitrary and capricious or ultra vires regulations. We draft environmental legislation for consideration by Congress and state legislatures, submit comments on proposed regulations and rules, confer with federal and state executive and administrative officials concerning the applicability and interpretation of existing rules, and have deep experience litigating petitions for review and Administrative Procedures Act cases to challenge or defend agency actions.

Other federal agencies are now focused on the environment as well. The U.S. Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Commodity Futures Trading Commission (CFTC), and other regulators are looking for potential “greenwashing,” including whether climate-related, sustainability, and other Environmental, Social, Governance (ESG) claims are material, substantiated, and not misleading. Environmental risks can now result in far broader liability to consumers, shareholders, workers, and others due to allegations of unfulfilled ESG claims.

When litigation arises challenging government actions approving such projects, Winston has extensive experience litigating NEPA and other regulatory actions. We enable clients to intervene to defend government actions critical to their businesses.

Winston has defended numerous toxic tort and other related environmental claims (e.g., product liability, insurance coverage) in class actions and mass tort cases alleging both bodily injury and property damage. This experience covers the entire spectrum of allegedly hazardous substances and materials, from volatile and semi-volatile compounds, specialty chemicals, and pesticides to heavy metals, plasticizers, oxidizers, and radioactive wastes. Moreover, our lawyers have defended claims spanning diverse environmental media and exposures through soil and groundwater contamination, air pollution, and workplace exposures. Our success in these types of cases is grounded in our thorough understanding of the scientific and technical issues that are often crucial to the outcome of a case. We have the experience and know-how to work with experts in such areas as toxicology, epidemiology, risk assessment, geochemistry and hydrogeology, remediation engineering, medical causation, and diminution of real estate values.

Complementing our practice, Winston offers numerous litigation partners who have extensive courtroom experience and intimate knowledge of the energy industry, as well as partners adept at representing client interests in enforcement proceedings before federal and state energy-regulatory agencies. On behalf of energy clients, we are routinely involved in high-stakes litigation, including conflicts arising out of construction projects, disputes concerning contracts and general business issues and business torts, as well as matters related to the trading of physical, over-the-counter, and exchange-traded energy products, including oil, gasoline and other refined products, natural gas, and power.