Environmental Litigation and Mass Tort

The Environmental Litigation and Mass Tort Practice Group has unparalleled experience defending environmental personal injury and property damage class actions across the United States.  The group has successfully litigated a number of the most significant class actions in the country, amassing an impressive win record in trial and appellate courts.  Our unrivaled experience and judgment in this area enable us to attack enterprise-threatening liability claims systematically, efficiently and creatively.

The group has developed strategies for attacking environmental class claims at an early stage.  Our lawyers have an array of approaches designed to secure dismissal at the “motion to dismiss” stage and for defeating the certification of proposed classes of plaintiffs.  We maintain an extensive database of legal research, briefs, pleadings and strategy documents available to lawyers throughout the firm.  We carefully track legislative reforms and other developments in this area to ensure the best possible defense.

We recognize the unique aspects of environmental class actions and work closely with our clients to address not only the legal aspects but also the media and public relations components of these claims.  From strategic assessments to determine the appropriate approach (litigation, ADR or alternatives) to basic tactics on decertification and removal, our lawyers have the skills and experience to address even the most challenging environmental class action claims.

Experience

The Environmental Litigation and Mass Tort group has unrivaled experience in defending and defeating environmental personal injury and property damage class actions across the United States.

Recent representations include:

• Represented a major energy company in eight consolidated class actions involving alleged exposure to a broad suite of radionuclides emitted during the 50-year operation of the Hanford Nuclear Reservation.  We successfully secured summary judgment for our client at the trial court level.  We also successfully obtained indemnification from the Department of Energy, with a release for our client from all claims.
• Represented a large defense contractor in defending class certification for a proposed class of 50,000 to 100,000 Southern California residents allegedly exposed to contaminated groundwater.  After the trial court certified a broad class for punitive damages and medical monitoring, we successfully challenged the certification through a writ petition and prevented the trial court from mailing tens of thousands of class notifications to putative plaintiffs.  We then prevailed in the Court of Appeal and the California Supreme Court, earning a published decision placing substantial burdens on any plaintiffs’ lawyers bringing these types of class claims.
• Represented a large defense contractor in federal class action involving alleged community exposure to contaminants released to the air and groundwater during 50 years of aircraft manufacture at facilities in Southern California.  We obtained a series of favorable rulings in these cases, ultimately defeating class certification.  Of thousands of potential personal injury and property damage claimants at the outset of the case, only three personal injury claimants remained following successful pretrial motions.  We obtained a highly favorable settlement of the three claims in the middle of trial.
• Represented a large petroleum company in a 10,000-person class action involving an accidental release of butadiene in Corpus Christi, Texas.  We obtained a favorable verdict on causation and damages.  Ultimately, the client paid only $3,400 in damages to resolve a case that was initially valued by plaintiffs at $290 million.
• Represent a large defense contractor in a mass toxic tort lawsuit involving a putative class of over 800 plaintiffs claiming personal injuries, wrongful death, medical monitoring and property damage resulting from alleged exposure to chemicals in drinking water.  An unparalleled string of significant victories has been achieved in the Court of Appeal and the California Supreme Court, and all the claims of the first trial group of plaintiffs were dismissed with prejudice in 2008.
• Represented a large petroleum company in state class actions against the petrochemical industry in Corpus Christi, Texas, involving groundwater contamination with petroleum hydrocarbons and air releases of benzene.  After challenging class certification, we obtained a favorable settlement.
• Represented multiple clients in a Louisiana class action suit involving alleged exposure to herbicide wastes.  The case was settled in the middle of trial.
• Represented a large university in class action arising from claims that a brain cancer cluster resulted from aqueous discharges of radionuclides at the Los Alamos site.  Obtained summary judgment on statute of limitations grounds.

The Environmental Litigation and Mass Tort Practice Group has successfully defended corporations, senior corporate executives and public agencies in a wide range of U.S. federal and state environmental investigations and enforcement actions.  In these matters the group draws on the strengths of Gibson, Dunn & Crutcher’s White Collar Defense and Investigations group and our many lawyers with valuable government experience.

The Enforcement Defense group includes several lawyers who served at high levels within the U.S. Environmental Protection Agency and the Department of Justice.  When our clients face threatened or actual environmental enforcement actions, we offer a depth of knowledge and reputation that ensures that their interests are represented by lawyers who are recognized leaders in their fields.

Our lawyers help clients investigate allegations of environmental violations.  If informal attempts to resolve the issues prove unsuccessful, we defend against the charges in any subsequent litigation.  We are also skilled in dealing with the impact of environmental enforcement actions, including communication with the public and with agencies.

Experience

The Environmental Litigation and Mass Tort group has broad experience defending against U.S. federal and state investigations and enforcement actions.

Recent representations include:

• Represented industry-leading retail and aerospace corporations against criminal and civil allegations stemming from the management of hazardous waste under the Resource Conservation and Recovery Act (RCRA).
• Investigated a U.S. state transportation agency’s handling of hazardous substances responding to a threatened federal RCRA enforcement.
• Representing a client in the pulp and paper industry in a U.S. Clean Air Act New Source Review enforcement action filed against it.
• Negotiated settlement on behalf of a large metropolitan sewer district against U.S. federal and state Clean Water Act violations associated with wet weather discharges, and defense against a related citizen suit.
• Represented developers facing criminal and civil allegations of unpermitted filling of wetlands under the Clean Water Act.
• Defending a large U.S. government contractor against qui tam relators and the United States, who are alleging U.S. False Claims Act violations arising from alleged environmental violations.
• Defending a former aluminum industry client in a RCRA cleanup action in the State of Oregon.
• Defended an ordnance-manufacturing client in a California Department of Toxic Substances Control RCRA action.

The Environmental Litigation and Mass Tort Practice Group has been at the forefront of administrative law for almost two decades.  Our group has handled some of the most important environmental rulemaking challenges at the U.S. federal and state levels.

The group’s lawyers develop sophisticated comments to proposed rulemakings at the inception of regulatory action.  We are also deeply skilled in postpublication rulemaking challenges.

Experience

The Environmental Litigation and Mass Tort group has handled some of the most important environmental rulemaking challenges at the U.S. federal and state levels.

Recent representations include:

• Represented a coalition of automakers, engine manufacturers and auto dealers before the U.S. Supreme Court in the seminal case involving the EPA’s authority to regulate greenhouse gas emissions from automobiles.  
• Acted as lead counsel in the Cluster Rule litigation on behalf of several companies in the pulp and paper industry in the Ninth Circuit and the D.C. Circuit.  We were successful in transferring the case from the Ninth Circuit to the D.C. Circuit over the objections of the environmental petitioners and were successful in protecting the confidential business information submitted by the industry during development of the Cluster Rules.
• Acted as lead trial counsel for a major wood products company in a regulatory challenge to the Clinton administration’s 58.5 million-acre Roadless Initiative.  Successfully secured preliminary injunction in the District of Idaho halting the Roadless Rule.  Then, defended the injunction before the Ninth Circuit.
• Representing automobile manufacturers in multiple challenges to state regulations limiting greenhouse gas emissions from motor vehicles.
• Submitted comments to the EPA on behalf of automobile manufacturer in opposition to the State of California’s request for a pre-emption waiver under Section 209(b) of the Clean Air Act for its motor vehicle greenhouse gas regulations.  After the EPA denied the request and the State brought a challenge, Gibson Dunn successfully moved to intervene.
• Represented an oil production facility in negotiating New Source Review terms and accomplishing a rule change from the South Coast Air Quality Management District for access to PM10 credits for use in permitting new electrical generating facility.
• Represented a major oil company in a successful temporary restraining order proceeding in Santa Barbara County Superior Court to halt the implementation of a proposed rulemaking by the Santa Barbara County Air Pollution Control District.
• Represented a public interest group in a federal suit that successfully forced the listing of the Atlantic salmon as an endangered species under the U.S. Endangered Species Act.
• Represented an agricultural coalition in Endangered Species Act litigation.  The Center for Biological Diversity sued the Fish and Wildlife Service of the U.S. Department of the Interior to force the listing of the California tiger salamander under the U.S. Endangered Species Act.  Gibson Dunn intervened in this litigation on behalf of a coalition of interests that oppose the listing of this species in the absence of sound science indicating a listing is required.

The Environmental Litigation and Mass Tort Practice Group has extensive experience representing diverse clients in matters involving U.S. state and federal clean air laws.  The group has familiarity with matters involving greenhouse gas emissions, climate change enforcement actions under the U.S. Clean Air Act’s Prevention of Significant Deterioration, and New Source Review provisions.

No law firm in the country is more involved in the area of climate change litigation than Gibson, Dunn & Crutcher. Our participation in several groundbreaking matters led to Gibson Dunn’s inclusion in Chambers’ initial climate change practice rankings.

Drawing on this experience, we counsel clients in various industries concerning the impact of greenhouse gas legislation, litigation and regulatory initiatives on their businesses.  We anticipate that the U.S. Congress, Environmental Protection Agency and Department of Transportation, as well as other federal and state agencies, will continue to consider various proposals to reduce the emissions of greenhouse gases from sources in multiple sectors of the economy.  As that occurs, Gibson Dunn will continue to be at the forefront of this important field.

Experience

The Environmental Litigation and Mass Tort group represents clients in matters involving U.S. state and federal clean air laws and all matters concerning climate change.

Recent representations include:

• Defended automobile manufacturers against a lawsuit by the State of California claiming that greenhouse gas emissions from their vehicles constitute a public and private nuisance by causing global warming and seeking billions of dollars in damages.  We successfully moved to dismiss that case on the ground that limiting greenhouse gas emissions is not a matter for the courts to decide under tort law, but rather constitutes a political question best left to the elected branches of government.
• Represented a coalition of automakers, engine manufacturers and auto dealers before the U.S. Supreme Court in the seminal case involving EPA’s authority to regulate greenhouse gas emissions from automobiles under the Clean Air Act.
• Representing the Association of International Automobile Manufacturers (AIAM) in multiple challenges to state regulations limiting greenhouse gas emissions from motor vehicles.
• Submitted comments to the EPA on behalf of automobile manufacturers in opposition to the State of California’s request for a pre-emption waiver under Section 209(b) of the Clean Air Act for its motor vehicle greenhouse gas regulations.  After the EPA denied the request and the State brought a challenge, Gibson Dunn successfully moved to intervene to uphold the determination.

The Environmental Litigation and Mass Tort Practice Group has long involvement in defending and prosecuting complex cost-recovery actions in U.S. state and federal courts.  The group successfully litigated a number of significant actions under the U.S. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) and their state analogues.  Gibson, Dunn & Crutcher’s  unrivaled experience and judgment in this area enable our lawyers to know when to negotiate a favorable settlement and when to continue aggressive, yet cost-effective, litigation.

The group maintains an extensive, centralized database of legal research, briefs, pleadings and strategy documents that is available to lawyers firmwide.  Several recent U.S. Supreme Court decisions have dramatically affected litigation strategy in cost-recovery actions.  We carefully monitor these developments to ensure that our defense draws upon the deepest and best legal analysis possible.

We recognize that cost-recovery actions are not always limited to the courtroom.  We work closely with all clients to address legal aspects of these matters and also interact with local and federal regulators involved in each case.  We help to manage the media and public relations components of these claims.

Experience 

The Environmental Litigation and Mass Tort group has significant experience in defending and prosecuting complex cost-recovery actions in U.S. state and federal courts.

Recent representations include:

• Represented a large defense contractor in several consolidated cost-recovery actions in federal court and an action filed in California Superior Court, and in administrative actions brought by the State Water Resources Control Board and Regional Water Quality Control Board, all stemming from perchlorate and trichloroethylene contamination in the Rialto-Colton Groundwater Basin.  After aggressive discovery and motion practice that included three separate writs to the Ninth Circuit, Gibson Dunn was instrumental in forcing the plaintiffs to agree to a settlement in principle and dismissal of the lawsuits in their entirety for no monetary compensation.
• Represented a large defense contractor in a state cost-recovery action involving claims for public and private nuisance.  After aggressively litigating the merits of the lawsuit and filing a comprehensive summary judgment motion the day before the court was scheduled to hear the motion, the plaintiff voluntarily dismissed its complaint.  Gibson Dunn was able to recover a large portion of the costs incurred through the lawsuit.
• Represented plaintiffs in a federal cost-recovery lawsuit in which our clients were reimbursed for all past response costs and 90 percent of their attorneys’ fees and litigation costs incurred in prosecuting the lawsuit.
• Filed a federal cost-recovery lawsuit on behalf of a large commercial property owner to recover costs to clean up solvent contamination in soil and groundwater.  After successfully obtaining summary adjudication on liability, Gibson Dunn recovered 85 percent of all past and future costs, including attorneys’ fees, to remediate the site.
• Representing a manufacturing client in cost-recovery litigation involving two Superfund sites and two plant sites in Ohio.  Gibson Dunn successfully argued that the purchase/sale agreement did not shift cleanup liability to the new business owner.
• Represented plaintiff, a gas turbine manufacturer, in a CERCLA cost-recovery action involving contamination at one of the largest and oldest manufacturing sites in the Port of San Diego.  Our lawyers negotiated a favorable settlement with defendant agreeing to pay 65 percent of all future response costs.  In addition, we were instrumental to the parties’ entering into a binding arbitration using federal court procedural rules which resulted in a three-week arbitration before a retired federal court judge and a $5 million-plus verdict for our client.
• Represented a major oil company in a CERCLA cost-recovery action brought by the U.S. EPA over the cleanup of the Concord Naval Weapons Station.  Ultimately, the case was settled by a consent decree entered by the court in which our client paid a nominal settlement (approximately $50,000).
• Defending a large defense contractor in a multimillion-dollar CERCLA response cost and natural resource damage claim in Oregon involving contaminated sediments along 13 miles of the Willamette River arising from a wide variety of industrial activity over a 100-year period.
• Representing plaintiff in a $250 million CERCLA action against the United States for contribution based on government involvement at a contractor-operated rocket research, development and production facility in California.
• Representing plaintiff in a $70 million dollar CERCLA contribution action against the United States based on government ownership and operation of a U.S. Navy shipyard in Seattle, Washington, from World War II through the 1960s.

The Environmental Litigation and Mass Tort Practice Group counsels U.S.-based and multinational corporations, trade associations, coalitions, municipalities and individual clients on environmental law issues throughout the United States.  The group provides a wide range of regulatory and compliance services, with experience in all aspects of environmental, energy and resources law, including compliance counseling, administrative proceedings, enforcement and legislative matters.  We work across all of the major U.S. environmental laws and regulatory schemes.

We have deep familiarity with handling complex issues, including those related to:

• Facilities permitting and operation
• Product regulation
• Solid and hazardous waste management
• Investigation and remediation of contaminated properties
• Governmental reporting obligations

The group represents clients on the regulatory side in agency rulemakings and legislation.  Our lawyers can help clients establish environmental compliance programs and prepare for government inspections.  We also work closely with land use lawyers in our Real Estate Practice Group where zoning, entitlement, conditional use and other land use permitting issues interact with environmental issues.

We represent the regulated community in connection with the development and subsequent promulgation of environmental regulations by various government agencies.  Our lawyers have drafted proposed regulations, prepared and submitted comments in connection with the proposed regulations and litigated adopted regulations.

On the legislative side, Gibson, Dunn & Crutcher’s lawyers represent client interests with respect to the evolution of environmental laws.  We have drafted proposed environmental legislation, prepared and offered testimony before legislative committees and related government hearings, and presented clients’ concerns directly to individual legislators.

Our substantive capabilities encompass all areas of environmental law, including these significant U.S. federal statutory/regulatory programs:

• The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) and its state analogues
• The Clean Air Act
• The Clean Water Act
• The Coastal Zone Management Act
• The Emergency Planning and Community Right-to-Know Act
• The Endangered Species Act
• The Federal Insecticide, Fungicide, and Rodenticide Act
• The National Environmental Policy Act
• The Oil Pollution Act of 1990
• The Resource Conservation and Recovery Act
• The Safe Drinking Water Act
• The Toxic Substances Control Act

While most of these laws are administered by the federal Environmental Protection Agency, most U.S. states also have their own environmental programs, which in some cases like California impose even more stringent requirements than the federal regulations.  Our lawyers have deep capabilities working with all these programs.

Gibson, Dunn & Crutcher’s Environmental Litigation and Mass Tort Practice Group routinely represents clients in significant litigation under the U.S. National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA).  We also counsel clients on land use issues associated with these laws.

Practice group lawyers handle all aspects of environmental impact review, including:

• Coordination between lead and cooperating agencies
• Selection and supervision of applicant’s consultant
• Use of U.S. federal agency third-party environmental contractor processes
• Preparation of applications
• Scoping of environmental issues
• Preparation of and commenting on draft and final environmental impact statements and assessments
• Conduct of public hearings
• Representation in NEPA or CEQA challenges

Experience: 

The Environmental Litigation and Mass Tort group has significant experience in litigating matters under NEPA and CEQA.

Recent representations include:

• Employed NEPA to successfully challenge proposed federal acquisition of extensive tracts of agricultural land in the Florida Everglades.
• Represented a public interest group in a challenge to the U.S. Forest Service’s permitting practices for dams and diversions projects impacting stream flow on national forest land.  Successfully obtained ruling that the Forest Service has responsibility to minimize harm to streams when issuing permits for water projects.
• Represented new owners of a Hollywood studio in challenge of an environmental impact report (EIR) for the La Brea Gateway redevelopment project.  Related litigation involved enforcement of an existing development agreement with the City of West Hollywood and defense of an eminent domain proceeding.  The litigation resulted in a favorable settlement for the client that enabled the redevelopment project to proceed while honoring the pre-existing development agreement.
• Represented international stereo speaker and television manufacturer in challenge of the City of Pomona’s approval of a mitigated negative declaration and related land use approvals for a 1,000-ton-per-day trash transfer facility.  The litigation resulted in the City’s withdrawal of all approvals.
• Represented real party in interest, an investment company, in both Los Angeles Superior Court and the Court of Appeal, in a successful CEQA action seeking to block the construction of a large warehouse and distribution facility.
• Represented real party in interest, a large freight company, in a successful CEQA lawsuit seeking to block entitlement and construction of a large downtown Los Angeles parcel distribution facility.
• Represented a Fortune 100 company in NEPA and CEQA actions against the U.S. Department of the Interior and California state and local agencies regarding the listing of the Stephens’ kangaroo rat.
• Represented a state agricultural organization in prosecuting NEPA and CEQA actions against federal and state agencies arising from the multibillion-dollar CALFED Bay-Delta Program’s impacts on agricultural resources.
• Representing real party in interest in a CEQA matter relating to the development of the Parkmerced neighborhood in San Francisco County Superior Court.
• Representing industry groups for oil and gas operators in a challenge by several nonprofit organizations concerning the CEQA review of approvals to drill new oil and gas wells that may involve the use of hydraulic fracturing.

The Environmental Litigation and Mass Tort Practice Group helps clients manage potential environmental considerations that arise in almost all corporate and real estate transactions.  The group’s lawyers are expert in identifying risks; negotiating and drafting purchase, lease, financing and other agreements to deal with such risks; and structuring transactions with regard to individual and corporate environmental liability.

As part of our role in providing this due diligence assistance, we enlist the help of environmental consultants to review and analyze any related technical materials.  Where necessary, we will task them with performing their own data collection and analysis.

Gibson, Dunn & Crutcher’s lawyers counsel clients on all environmental issues that arise from transactions, including lender liability, the innocent landowner defense and successor liability.  The practice group’s members are also experienced in:

• Drafting and negotiating critical environmental provisions of loan and purchase agreements
• Drafting environmental disclosure for public offerings
• Arranging for environmental insurance policies
• Resolving indemnification disputes between buyers and sellers

Laws in many U.S. states now impose preconditions on business transactions involving industrial properties, ranging from notice requirements for environmental contamination to full-scale remedial obligations.  The U.S. federal Superfund law (CERCLA) also requires real estate purchasers to conduct an environmental inspection of properties.  We regularly counsel and guide clients in navigating these preconditions toward a successful completion of their transactions.