Gaining results through compliance, negotiation, governmental advocacy and litigation
JMBM Environmental Practice - Government, Land Use, Environment and Energy (GLUEE)
Environmental law presents one of the most rapidly expanding and challenging areas of the law, especially in California and the West. The field has an ever-increasing and changing proliferation of laws, regulations, cases, and issues. JMBM's environmental group counsels clients in identifying, evaluating, and efficiently resolving environmental issues, including air, water, hazardous materials, and soil-related work. The group includes members with vast experience in litigation, regulatory, and administrative matters.
The consequences of incomplete or ineffective environmental counsel can kill or significantly delay a project, or lead to litigation with substantial damages, fines or jail time as potential penalties. With so much at stake, you need environmental guidance that combines practical business understanding, dispute resolution skill, and detailed insight on the laws and regulations.
Our attorneys provide such talent, skill, and insight. We advise both private and public sector clients regarding their obligations, liabilities, rights, and opportunities as they relate to environmental matters. Our specific experience includes:
- Extensive experience in all phases of air quality matters
- Litigation and administrative experience in NEPA, CEQA and the EIS/EIR process
- Extensive experience in environmental cost recovery and all other forms of hazardous waste litigation, CERCLA, RCRA, toxic tort defense, and insurance coverage disputes
- Acquisition, leasing and disposition of environmentally impaired real estate
- Compliance, regulatory counseling, and litigation experience in soil, water quality, and air matters
- Climate change and sustainability counseling, including greenhouse gas (GHG) emissions and compliance with California's AB 32 Global Warming Solutions Act
- Air permitting and penalty matters
- Asbestos and other indoor air management and compliance matters
- Proposition 65 litigation and compliance matters
- Army Corps of Engineers, 404 permitting
- Wetlands and Endangered Species Act (ESA) litigation and compliance
- SEC-related environmental disclosures and documentation
- Administrative and regulatory counseling, including legislative matters
- Extensive experience in development of natural gas and alternative energy infrastructure projects
- Power plants siting and permitting
- Natural resources and other legal issues specific to aggregate mining
- Oil and gas project and property acquisition, permitting, operations and disposition
Environmental issues typically arise in daily facility operations; the sale, purchase, or financing of property and businesses; permitting new or modified facilities; business growth, expansions and relocations; public offerings or private placements; and applications for discretionary public approvals. We provide clients thoughtful and comprehensive counsel in litigating environmental claims, prevailing in difficult permit or enforcement proceedings, maintaining regulatory compliance, achieving sustainable operations, and resolving transactional environmental issues.
Dealing with California complexities, federal laws, and local ordinances
We offer comprehensive strategies for clearing the environmental hurdles confronting all proposed projects before, during and after development. California serves as a particularly difficult setting for most types of real estate and industrial development. As part of the development and entitlement process, we prepare and review documentation to ensure compliance with all applicable federal, state, and local laws, regulations, and ordinances. On a daily basis, we handle matters for numerous federal, state, local, and regional agencies including:
- California Environmental Protection Agency
- California Air Resources Board
- South Coast Air Quality Management District and other local air districts
- California Coastal Commission
- Department of Toxic Substances Control
- California Energy Commission
- California Department of Fish & Game
- California State Lands Commission
- California State Mining and Geology Board
- Public Utilities Commission
- Integrated Waste Management Board
- California Resources Agency
- California Office of Historic Preservation
- California State Water Resources Control Board
- California Regional Water Quality Control Boards
- Various air quality management districts including:
- South Coast Air Quality Management District
- Bay Area Air Quality Management District
- Feather River Air Quality Management District
- U.S. Department of the Interior
- U.S. Bureau of Land Management
- U.S. Fish & Wildlife Service
- U.S. Bureau of Indian Affairs
- U.S. Environmental Protection Agency
- U.S. Army Corps of Engineers
- Federal Energy Regulatory Commission
- U.S. Forest Service
Our multidisciplinary practice
The thicket of government laws, regulations and overlapping jurisdictions is often difficult to understand, seemingly contradictory and even contrary to logic, and sometimes entangles even the most sophisticated businesses. Complex environmental issues often require multidisciplinary environmental, energy, real estate and land use capabilities. Our government, land use, environment, and energy lawyers provide a full range of integrated and in-depth experience that only a sophisticated, full-service law firm can provide. To best serve the widespread needs of our clients, attorneys from the various practice areas of the Firm work together to provide the full range of services that are likely to be needed. Our Firm's integrated, team-based structure enables us to draw upon skilled legal practitioners in dozens of specialized practice areas that are critical to the success of our clients. This unique, multidisciplinary approach ensures focused, cost-effective representation.
For financial transactions or real estate owned by financial institutions, our attorneys provide a full understanding of development potential or can craft viable workout strategies. We can advise clients of the potential risks and rewards of proceeding, obtaining new entitlement or approvals, and resolving ownership disputes.
Resolving hazardous waste issues
Our attorneys have both prosecuted and defended a wide variety of lawsuits seeking to resolve statutory or common law liability related to soil, air, and water contamination by hazardous materials and wastes. Cleaning up a contaminated area may be costly and affected parties (or those potentially responsible) seek to spread those costs to others. Often, this also involves seeking insurance coverage under comprehensive general liability insurance or procuring pollution legal liability policies. Our attorneys have handled every aspect of these cases, including litigation against public and private entities.
In addition to more common cost recovery expertise, our attorneys have vast experience in complex environmental disputes. For example, we have litigated significant matters involving the federal Clean Air and Clean Water Acts; the Resource Conservation and Recovery Act; the Energy Policy Act of 2005; state and federal mining laws; state and federal solid waste laws; state hazardous waste control violations; MTBE; Perchlorate; Chromium-6, indoor air, asbestos, and lead paint issues; and facility siting disputes.
Clients rely on us to defend them in numerous cost recovery actions brought by private landowners and by state agencies under RCRA, alleging contamination and related damages caused by leaking underground storage tanks. We also help negotiate CERCLA and RCRA consent agreements with federal and state environmental agencies, and defense in enforcement actions under RCRA.
If you own a property contaminated with hazardous materials, JMBM will give you reliable advice on hazardous substance exposures, help with Phase I site assessments, Phase II site assessments, Phase III remediation plans and corrective action documentation.
Permitting facilities and navigating the regulatory process
We provide an exceptional combination of regulatory, business and litigation experience applied to environmental permitting and compliance issues. On a daily basis, our attorneys assist our clients' efforts to obtain air, water, waste disposal, mining and land use permits or entitlements. The permitting work includes working with and developing waste discharge requirements, hazardous waste facility permits, solid waste permitting and regulatory issues, developing a groundwater management ordinance, obtaining air permits, challenging and implementing clean up and abatement orders, CEQA review and compliance, defense of a writ of mandate, pursuing state and federal funding for environmental assessment and remediation (including the California UST Fund), and securing emission reduction credits (ERCs).
We have handled the regulatory permitting for some of the largest infrastructure projects in southern California. Our experience includes primary responsibility for the environmental and regulatory matters of siting and developing a proposed liquefied natural gas receiving and vehicle fuel distribution terminal at the Port of Long Beach. We also secured the required permits and emission reduction credits, including air quality permits and CEC approvals, for several regional power generating facilities.
Performing environmental due diligence
Sellers, purchasers, investors and lenders call on us during company acquisitions and property transactions to determine environmental compliance with federal and state environmental laws and to identify potential compliance risks. Your transactional needs will be handled by an experienced team conducting environmental investigations, environmental audits and due diligence reviews. Whether the due diligence need relates to an industrial project or completing a complex corporate merger or acquisition, we provide practical advice on risk and cost allocation.
We also provide guidance on the disclosure required by Sarbanes-Oxley and other relevant statutes. Your proposed transaction will meet all appropriate regulatory requirements, with no surprises after the deal is closed.
Providing a special industry focus - construction and building materials
Few California law firms surpass JMBM’s representation of mining and natural resource companies in environmental matters. Our clients include rock, sand and gravel quarry operations, aggregate mining companies, and producers of cement and ready-mix concrete.
This regulatory-intense industry benefits from our advice on compliance with all relevant environmental laws, including the Endangered Species Act, AB 32 and other climate change legislation, and the Clean Air and Clean Water Acts. Working closely with the firm’s real estate and land use lawyers, our environmental team also helps clients negotiate approval with land use and environmental authorities for reclamation of mining properties, including the creation of California’s first joint powers authority for quarry reclamation.
Preparing for climate change compliance
AB32 and SB375, California's global warming legislation, creates significant challenges for monitoring and reporting GHG emissions across the state and establishes a rigorous compliance timeline. AB32 requires businesses to reduce GHG emissions to 1990 levels (equal to a 25 to 35% statewide decrease) by the year 2020. SB375 compels regional planning authorities to create GHG emission targets and develop regional housing and transportation plans based on those targets. JMBM continues to be at the forefront of this issue—shaping the collective response of those in charge of California's most significant business sectors, as stakeholders continue to evaluate and participate in the implementation of AB32 and SB375.
If the provisions of AB32 and SB375 affect your business, we will work with you to assess the impact of regulatory efforts and develop remedial strategies. We assist companies in the electric utility, mineral and cement products, petroleum and transportation sectors, among others, to:
- Identify operations that produce GHGs
- Measure and document reductions in GHG emissions
- Explore the use of alternative energy
- Develop risk assessment and public communication efforts
- Participate effectively in carbon cap-and-trade programs
- Achieve sustainable operations
Defending Proposition 65 actions
California’s Proposition 65 is one of the most stringent toxic control statutes in the country, and its provisions regulating exposure or release of 750 listed substances (including many common chemicals and additives) apply to all businesses with 10 or more employees. JMBM guides many business clients of all sizes through the Prop 65 minefield, helping them develop compliance strategies, negotiate settlements or defend against lawsuits.
We have significant expertise in handling actions brought under Prop 65’s “bounty hunter” provision, which allows private persons or organizations to bring suit against alleged violators on behalf of the general public. Our lawyers understand the burden of proof necessary to demonstrate that an actionable exposure has not taken place, even in the event that a listed substance is present.
Environmental cases and projects
- For Vulcan Materials Company, Western Division: California Court of Appeal rules in favor of JMBM client in CEQA challenge For Vulcan Materials Company, Western Division: On February 19, 2013, the Second Appellate District of the California Court of Appeal ruled in favor of JMBM client Vulcan Materials Company in a CEQA challenge brought against the City of Azusa by the City of Duarte. Duarte sought to prevent Vulcan’s plans to change the location of [...]
- For Troesh Materials LLC: Second Appellate District Court ruled in favor of JMBM client In a decision published on February 8, 2013, the Second Appellate District Court ruled in favor of JMBM client Troesh Materials, LLC in a challenge brought pursuant to the California Environmental Quality Act (CEQA) against the County of Santa Barbara’s approval of Troesh’s Diamond Rock Sand and Gravel Mine and Processing Facility (the “Diamond Rock [...]
- GLUEE Development Projects, Land Use Litigation, and CEQA Experience Below are several resources outlining JMBM’s Government, Land Use, Environment and Energy Department’s Development Projects, Land Use Litigation, and Experience with the California Environmental Quality Act (CEQA).
- JMBM Wins First Density Bonus Case Against the City of Los Angeles Under SB 1818 On December 8, 2008, JMBM attorneys successfully challenged an attempt by the City of Los Angeles to unlawfully impose conditions of approval on a proposed infill apartment project that was entitled to a height limit increase under SB 1818, the state density bonus law. Louise Apts. LLC v. City of Los Angeles is the first [...]
- For Eagle Materials subsidiary Mathews Readymix LLC: JMBM represented construction materials company in stormwater discharge litigation California Sportfishing Protection Alliance v. Mathews Readymix, LLC, Case No. 2:06-CV-0505-MCE-GGH, involved litigation challenging stormwater discharges. JMBM represents Eagle Materials Inc. and its wholly-owned subsidiaries, Western Aggregates LLC, Mathews Readymix LLC, and Nevada Cement Company on a wide range of environmental matters. JMBM represents Eagle on various permitting issues relating to the Yuba Goldfields in [...]
- For CEMEX, Inc.: JMBM successfully litigated award of attorneys' fees for bad faith environmental litigation In City of Santa Clarita v. U.S. Department of Interior (2004), USDC, Case No. CV-04-1572; U.S. Court of Appeals, Case Nos. 06-55225 and 06-55960 (2006) JMBM successfully represented CEMEX in obtaining an award of attorneys’ fees against an environmental plaintiff for bad faith NEPA litigation, and the fee award was upheld on appeal by the [...]
- For Target Corp.: JMBM represented the company in a significant Brownfields redevelopment project JMBM represented Target Corp. in a significant Brownfields redevelopment project, including the transformation of a former nuclear fuel rod manufacturing site into a retail center.
- For Aera Energy, JMBM effectively represented the client against claims related to the alleged theft of a large quantity of RECLAIM Trading Credits by an agent. The agent is under criminal indictment.
- For a scrap metal recycler: JMBM successfully defended the enterprise concerning water quality, stormwater and waste water discharge issues For a national scrap metal recycling enterprise, JMBM successfully defended the client in an administrative hearing before the Regional Water Quality Control Board and subsequent appeal before the State Water Resources Control Board concerning water quality, stormwater, and waste discharge issues.
- For Target Corp.: JMBM negotiated EPA Region 9's first CERCLA Bona Fide Prospective Purchaser Agreement in connection with proposed development of a store in Davis, CA.
- For Trancas Property Owners Association: JMBM achieved a favorable resolution in a Coastal Act case In California Coastal Commission and State Lands Commission v. Trancas Property Owners Assn, et al., Los Angeles County Superior Court Case No. SC086150, JMBM’s Kenneth Ehrlich served as lead counsel and achieved a favorable resolution for the defendants in a highly publicized litigation brought against a Malibu-area homeowners association and association officers in connection with [...]
- For a property owner in Orange County: JMBM prosecuted CERCLA, RCRA and common law claims For a property owner in Orange County: JMBM prosecuted CERCLA, RCRA and common law claims against former owners and operators of two landfill sites.
- For a public property owner in Huntington Beach, CA: JMBM prosecuted CERCLA, RCRA and common law claims For a public property owner in Huntington Beach, California, JMBM prosecuted CERCLA, RCRA and common law claims against the lessee of a former gun range facility.
- For Vulcan Chemical Co.: JMBM successfully resolved a multi-party CERCLA cost recovery case For Vulcan Chemical Co., in a multi-party CERCLA cost recovery case regarding an aluminum smelter in Southern California’s Inland Empire, JMBM successfully resolved the case after a successful CERCLA summary motion involving an aluminum smelter in the Inland Empire. The summary motion was followed by favorable resolution of cost recovery litigation.
- For the California Hotel & Lodging Association and California Apartment Association (separately): JMBM successfully designed and implemented global Proposition 65 claims settlements JMBM was able to successfully create and institute a global Proposition 65 settlement of claims against 248 lodging establishments on behalf of California Hotel & Lodging Association members. JMBM has implemented similar programs for dozens of apartment management companies affiliated with the California Apartment Association.