Environmental Review and Regulation
Areas of Focus:
NEPA and State Environmental Reviews
Our experience with the National Environmental Policy Act and many of its state analogues is unparalleled and our practice is nationally preeminent. A Sonnenschein partner was General Counsel of the President’s Council on Environmental Quality (CEQ) and the lead draftsperson of the federal government’s regulations implementing NEPA (40 CFR Parts #1500-1508). Another served as CEQ Associate Director for Natural Resources, while a third supervised the drafting and implementation of the Department of Energy’s NEPA procedures.
No NEPA document whose preparation was overseen by the firm's NEPA practitioners has ever been overturned in court.
We specialize in “bullet-proofing” environmental analyses by working closely with our clients’ in-house experts, consulting engineers and other specialists. No matter how complex or controversial a proposed project or action may be, we know how to plan, prepare, and defend environmental reviews so that our clients’ projects can go forward. When requested by our clients, we also critique NEPA documents prepared by others, and, where necessary, advocate before agencies or bring litigation to secure compliance.
Our NEPA expertise is evidenced by the fact that government agencies repeatedly call upon Sonnenschein for assistance with their own NEPA procedures and proceedings. As leaders in the field, our NEPA specialists frequently address professional gatherings, lead NEPA-related committees and associations, and publish in the area. We maintain extensive contacts with CEQ personnel, as well as with the NEPA specialists at EPA, the Department of the Interior, U.S. Fish and Wildlife Service, U.S. Forest Service, Department of Transportation (e.g., FHWA, PHMSA and FAA), the Federal Communication Commission and Department of Defense.
Sonnenschein lawyers have helped our clients with NEPA reviews of electric transmission lines and generation facilities, pipelines, hydropower projects, water supply developments, Indian gaming facilities, real estate developments, highways, bridges, light rail, telecommunication and broadcast towers, the revision of an entire agency’s NEPA procedures, and development of inter-agency procedures for simultaneous implementation of NEPA, Endangered Species, and Clean Water Act reviews of energy infrastructure projects. We are particularly active in new facility siting in the Western States, including compliance with the California Environmental Quality Act.
We have worked with clients to help agencies establish categorical exclusions for certain actions, significantly streamlining regulatory compliance requirements. Our work often involves helping clients develop and win agency support for mitigation measures adequate to support issuance of an environmental assessment and “Finding of No Significant Impact,” in lieu of an environmental impact statement. Our familiarity with environmental management systems places us in the forefront of efforts to improve agency NEPA procedures.
Sonnenschein’s NEPA practice is enhanced by our expertise in many related federal environmental laws, including the Endangered Species Act, Clean Water Act, Coastal Zone Management Act, National Historic Preservation Act, Nuclear Waste Act, Federal Land Policy and Management Act, National Forest Management Act, Antiquities Act, Migratory Bird Treaty Act, Magnuson-Stevens Fishery Conservation and Management Act, Federal Power Act, and Administrative Procedure Act.
Endangered and Threatened Species
Our attorneys are well versed in the complex network of federal and state laws enacted to protect America's animal and plant species from extinction. The federal Endangered Species Act (ESA) is the most powerful and best known of these laws. But some states and some Indian Tribes also have enacted their own rules. Along with the ESA are other federal laws, such as the Migratory Bird Treat Act, the Lacey Act, the Marine Mammal Protection Act, the Magnuson-Stevens Fishery Conservation and Management Act, the National Forest Management Act, and others that directly or indirectly regulate activities that may affect living resources.
Anyone involved in real estate, land development or construction is likely to be impacted in some manner by the Endangered Species Act (ESA). The ESA is one of the nation’s most powerful environmental laws and regulates both federal agencies and private individuals in an effort to conserve and restore species that have been listed by the federal government as either endangered or threatened. Projects involving the federal government must include a section 7 “consultation” with the Fish and Wildlife Service/National Marine Fisheries Service (FWS/NMFS), and both private individuals and government agencies must ensure their activities do not involve a “taking” under section 9. Given the significant potential penalties for violating these sections, it is important to ensure absolute compliance with this Act.
We assist clients in navigating the requirements of the ESA and developing solutions to conflicts arising under this Act. We strive to reach outcomes that are not only beneficial to our clients, but also satisfy all parties involved. We have experience counseling clients in a wide variety of ESA-related areas such as ensuring compliance with the Act during project development, creating solutions to either prevent the unauthorized take of a listed species or navigating the incidental take permit process, navigating the consultation process with the FWS/NMFS, and working with the agencies in the development of Biological Opinions.
Our lawyers understand the scientific and technical aspects of complying with the ESA as well as the political and administrative issues. For example, we have:
- Helped clients conduct the necessary studies, investigations and project modifications to avoid adverse impacts on an endangered bird species during the development of a manufacturing facility.
- Advised on the development of an Indian casino involving the required ESA consultation.
- Assisted clients in complying with the requirements included in their construction and NPDES permits.
- Guided clients through the consultation process with the FWS/NMFS during the development of a natural gas pipeline running from Canada to New York and another running the breadth of Texas, and an electric transmission line crossing the U.S.-Mexico border.
- Reviewed and obtained approvals for siting of energy sources with potential impacts on protected species, such as wind farms and hydropower facilities.
Public Lands
We have represented interstate pipeline developers, hydropower licensees, conservation organizations, water supply developers, international power line proponents, mining interests, federal and state agencies, Indian Tribes, communities, industrial trade associations, and many others on public land issues. Our environmental regulatory work has included obtaining special use permits, addressing endangered and other protected species requirements, changing land use designations, and resolving enforcement actions. Our Public Law & Policy Strategies Group works on Capitol Hill to help public land users on major issues.
Our clients turn to us because we understand and work successfully within the overall dynamic of public land issues. Not only do we understand the law, but we also are familiar with the history and have longstanding relationships with the individuals and institutions that shape public resource issues. Our skills and approach win results: Never has a court overturned an environmental review prepared under our supervision. We were selected to chair the first federal advisory committee charged with developing recommendations for the federal government on how to avoid or resolve environmental conflicts involving public lands. We have been at the center of writing and enacting dozens of federal laws affecting public lands. Development projects and conservation decisions that seemed out-of-reach have been brought to completion because we know how to handle our clients’ public land issues.
Transmission and Tower Siting
We have successfully represented clients involved in siting electric transmission towers on public and private lands throughout the country. We have expertise in the general matters of environmental review, species protection, and security, as well as the highly localized issues that arise under zoning and other land use laws. We have helped our clients obtain rights-of-way over federal lands, and federal permits needed to cross international boundaries.
Air Emissions
We have demonstrated ability for achieving client-directed objectives in a wide variety of Clean Air Act matters, including:
Regulatory Matters
In the development and challenge of numerous rulemakings on both the state and federal levels, we have:
- Helped develop and implement emission trading programs in the State of Illinois and the cities of Chicago and San Diego.
- Represented the Regional Commerce and Growth Association and the Missouri Chamber of Commerce as intervenors on a suit filed by the Sierra Club concerning the alleged failure of the State of Missouri to satisfy the ozone standard in the St. Louis non-attainment area by statutory deadline.
- Represented the Illinois State Chamber of Commerce in its successful challenge to EPA's rejection of a request by Illinois EPA to redesignate two counties in the Chicago area to attainment.
- Advised numerous clients concerning the impact on their operations of U.S. EPA’s call for various states to revise their State Implementation Plans (SIPs) to address the regional transport of NOx throughout the eastern United States.
- Assisted a national industry organization in its negotiation with the U.S. EPA concerning the development of the maximum achievable control technology standard (MACT) applicable to its members.
- Advised a national industry association in its negotiations with the U.S. EPA concerning selection of appropriate testing protocols for its members.
- Represented one of the largest trucking companies in California concerning the formation of statewide and local regulations concerning diesel exhaust.
Permitting
Our lawyers have significant experience nationwide assisting clients in the preparation of permit applications and the negotiation of operating and construction permits. We have:
- Assisted clients in the preparation and negotiation of New Source Review (“NSR”) and Prevention of Significant Deterioration (“PSD”) permits throughout the United States.
- Advised clients concerning application of the revised PSD rules to their permitting activities.
- Assisted the largest source of volatile organic compound (VOC) emissions in the Chicago nonattainment area in obtaining a construction permit for the first major source construction permit in the nonattainment area under the Clean Air Act Amendments of 1990.
- Assisted numerous clients in preparing Title V permit applications and negotiating Title V permits in Illinois, Indiana, Michigan, Missouri, Mississippi, Oregon, Pennsylvania, South Carolina, Texas and elsewhere.
- Assisted clients in numerous acquisitions by facilitating the transfer of hundreds of permits to the acquiring companies.
- Advised the California South Coast Air Quality Management District concerning the first permit modification action the District took against any facility - additional control requirements to address a recurring nuisance problem.
Compliance Counseling
Members of the Group have assisted numerous clients in implementing innovative, cost-effective compliance programs. We have:
- Participated in voluntary disclosures to EPA, under its audit policy for non-compliance situations, and obtained forgiveness from EPA of all economic and gravity-based penalties.
- Assisted numerous clients throughout the U.S. in meeting compliance obligations in a cost-effective manner, by obtaining variances and other types of site-specific relief.
- Counseled a client in connection with the development of an innovative agreement that would enable the business to operate more efficiently, while satisfying Clean Air Act emission limitations and permitting requirements.
- Counseled Native American clients regarding the air quality analyses necessary to demonstrate compliance with general and transportation conformity requirements, in furtherance of federal and their tribal goals of self-determination and self-sufficiency.
- Counseled numerous clients concerning air emission community notice obligations arising from California’s Proposition 65.
- Counseled several clients concerning health risk assessment requirements arising from California’s “toxic hot spots” legislations.
Emission Trading
We have been involved in emission trading issues since the mid-1970’s. We have:
- Substantial experience in most of the markets developed to reduce emissions by using the concept of air emission credits. This experience is included in the trading program for the Eastern U.S. on NOx issues, and creation and implementation of the VOC trading program for Northeastern Illinois. We also have experience in developing emission reduction credits for purposes of siting and permitting new facilities, including taking a charitable deduction for the value of retired emission credits.
- Assisted a client in certifying over 3,000 tons of emission reductions generated at its facility as “emission reduction credits” and donating 500 tons of those credits to the State of Illinois for air quality improvement and to the City of Chicago for economic development.
- Assisted a client in selling several hundred tons of emission reduction credits to another company in the Chicago non-attainment area.
- Assisted numerous clients in preparing emission information and negotiating emission baselines for the Illinois Emission Reduction Market System, a “cap and trade” emission trading program applicable to major sources in the Chicago non-attainment area.
- Assisted various utilities and other industrial groups in advancing emission trading and drafted model SO2 and NOx emission trading contracts.
Mobile Source and Fuel Regulation
We also have experience with regulation of internal combustion engines and compliant fuels. Our lawyers have assisted clients in:
- Permitting for engine test cells operations throughout the U.S.
- Timely discovery and disclosure of potential non-compliance with diesel fuel regulations.
Stratospheric Ozone Protection Regulation
Title VI of the Clean Air Act, and the Montreal Protocol create several requirements on a variety of businesses and other entities. We have advised clients concerning:
- The phase-out of ozone-depleting substances, the process for obtaining essential use allocations for continued use of Phase I controlled substances and the recordkeeping and reporting requirements applicable to users of ozone-depleting substances.
- Import and export requirements applicable to ozone-depleting substances.
- The scope of the authorization for medical devices using ozone-depleting substances.
Air Enforcement Experience
We have experience in a wide range of air pollution enforcement matters. We have:
- Defended a Clean Air Act case by staying the federal enforcement case and then litigating before a state board which became the ultimate and complete defense to the federal action. United States v. Riverside Laboratories, 678 F. Supp. 1352 (N.D. Ill. 1988). We ultimately settled the dispute through a site-specific rule with U.S. EPA.
- Successfully obtained a variance for a client in California’s South Coast Air Quality District by convincing the District that the client was not subject to a particular regulation for which the District had issued a notice of violation asserting numerous years of non-compliance.
- Defended a variety of administrative enforcement actions before state and federal administrative bodies, including the applicability of regulations to a client’s operations, retroactive application of New Source Review, and the presence of more than one “source” at a single operating plant.
- Represented the South Coast Air Quality Management District in the largest air enforcement action in its history, which resulted in a settlement of over $81 million paid by British Petroleum.
- Represented a major aerospace company in connection with various personal injury and community notice lawsuits relating to purported off-site emissions from its aircraft production facility.
- Represented various companies in actions brought by the California Attorney General, or a private plaintiff on behalf of the People, in civil actions pursuant to California’s Proposition 65.
Water and Wetland Matters
Our water-related experience follows the evolution of U.S. water pollution laws from the 1970s to the present. This expertise includes all manner of wastewater discharge experience, including NDPES permitting, as well as permitting from the Army Corps of Engineers relating to construction and wetland issues. And we are also involved with the recent focus upon floodplain and infrastructure siting issues affected by new regulatory requirements.
Examples include:
- Negotiating a favorable U.S. EPA interpretation of a pre-treatment categorical standard that allowed the client to eliminate standard pollution control technology that would have generated a hazardous solid waste.
- Obtaining a state appellate court decision vacating a fine where the dischargers had begun compliance efforts before the enforcement action was commenced.
- Coordinating the legal strategy to obtain POTW removal credits for both metals and volatile organic compounds that saved indirect dischargers significant pre-treatment expenses by avoiding the need to install pre-treatment technology.
- Developing winning defense strategies for a client facing significant storm water violation and a NPDES non-compliance-related administrative penalty.
- Obtaining variances and site-specific relief from applicable water quality standards for dischargers who were faced with technologically unfeasible and/or economically unreasonable wastewater pollution control requirements.
Our understanding of the federal and state Clean Water Act regulatory programs is based on years of participation in both state and federal Clean Water Act rule-making proceedings and task forces, including NPDES permit procedures, antidegradation, water quality standards, whole effluent toxicity and TMDL methodology. We bring state regulatory experience, such as counseling on state water enforcement matters and rule-making initiatives, to bear in developing negotiating strategies for regulatory matters.
We also counsel clients on issues arising under the NPDES storm water permitting program, including applicability questions, preparation and implementation of storm water management plans and interpretation or modification of storm water permit provisions.
We also have supervised and directed nationwide reviews for compliance with wastewater permitting requirements that involved hundreds of locations.
Through our years of experience on Clean Water Act matters, we have developed an extensive network of relationships with technical consultants who are qualified to provide needed technical advice to help build an effective legal strategy for our clients. We assist clients in bringing together effective technical and legal teams to achieve their compliance objectives.
