Environmental regulation at the federal and state levels extends to every aspect of business. Although Sidley always prioritizes a favorable outcome at the administrative or judicial level, the firm’s Environmental lawyers take an unparalleled approach toward obtaining the most successful results when it becomes necessary to challenge an agency rule or appeal a lower court ruling.
Our environmental appeals team brings value to our clients in the following ways:
- In approaching environmental appeals of rulemakings, we harness the value of our team’s talented practitioners who possess experience in regulatory issues under every federal statutory scheme in the environmental area.
- Our ability to draw on the resources of colleagues from Sidley’s leading Appellate practice ensures that the presentation before the court reviewing agency rules represents the deepest substantive experience and the best possible appellate strategy.
- The firm is home to experienced advocates who have appeared before the Supreme Court, all of the federal courts of appeals and many state appellate courts. Our approach to appeals of lower court rulings similarly reflects the deep experience Sidley lawyers have in appellate advocacy at the highest levels.
- In recent years, our lawyers have taken the lead role in litigating challenges to many of the significant environmental regulations that have been heard in federal circuit courts of appeals, including the D.C. Circuit, the most frequent forum for litigating federal agency rules, as well as repeatedly in the Supreme Court.
- Our lawyers have also been integral to appeals of lower court rulings in many environmental matters, including all four of the decided climate change tort cases, one of which yielded a key Supreme Court decision in our clients’ favor.
Representative Matters
Recent environmental appeals handled by our lawyers in the federal circuit courts and the U.S. Supreme Court include:
- Successfully representing the defendants in a suit brought by several states, the City of New York and land trusts against four electric utilities and the Tennessee Valley Authority. With Sidley as lead counsel, the defendants appealed to the U.S. Supreme Court, which issued an 8-0 decision, authored by Justice Ruth Bader Ginsburg, and reversed the Second Circuit. The leading Supreme Court blog called this litigation “the biggest-ever case on the issue of global warming.”
- A favorable decision for Luminant Generation Company from the U.S. Court of Appeals for the D.C. Circuit remanding the Cross-State Air Pollution Rule. The Washington Post described the decision as “a major victory for utilities and business groups.”
- A significant victory in the same court for Cummins Inc., which challenged an interim final rule issued by the U.S. Environmental Protection Agency (EPA) without notice and comment. In a strongly worded opinion, the court struck down the interim final rule for lack of “good cause” under the Administrative Procedure Act.
- A favorable ruling for the Portland Cement Association before the D.C. Circuit Court, which found that strict air emission standards promulgated for the industry were arbitrary and capricious, remanding the standards back to the EPA. The opinion was a rare decision in favor of an industry petitioner on so-called “National Emission Standards for Hazardous Air Pollutants.”
- The successful representation of several utility companies, including Duke Energy Corporation and AEP, in opposing plaintiffs’ mandamus petition to the U.S. Supreme Court and the dismissal of a climate change tort nuisance case, both in the district court where it was re-filed and in the Fifth Circuit in May 2013, as well as a similar case in the Ninth Circuit.
- The successful representation of a national trade association in intervening in a suit to obtain dismissal of a broad climate change case based on the “public trust doctrines” in Washington, D.C., with affirmance by the D.C. Circuit.
- Representing a large manufacturing company before the Fifth Circuit in successfully reversing a lower court’s decision finding the company liable under CERCLA as an “arranger.”
- Representing an intervening pipeline company before the Tenth Circuit in upholding the U.S. Army Corps of Engineers’ authority to issue Nationwide Permits and verification letters for an oil pipeline.
- Representing a chemical manufacturer in successfully challenging EPA rulemaking under Title VI of the Clean Air Act. The D.C. Circuit held that the EPA improperly relied on economic considerations in authorizing the use of competing HCFC chemicals.
- Successfully defending the construction of a new coal-fired power plant from a Clean Air Act citizen suit in U.S. District Court and before the Eighth Circuit, including the denial of a motion for preliminary injunction.
- Submitting an influential amicus curiae brief on behalf of an industry trade association in a Sixth Circuit case overturning EPA’s long-standing “aggregation” permitting practices under the Clean Air Act.
- Successfully representing a midstream company before the Pennsylvania Commonwealth Court in reversing a novel decision by the Pennsylvania Environmental Hearing Board upholding the issuance of a single air permit for two separately owned and operated sources.
- Representing a coal-fired power plant before the First Circuit in successfully arguing that municipal ordinances prohibiting the beneficial use of coal-ash were preempted by state law, reversing the lower court’s award of summary judgment to the municipalities.
- Representing companies and trade associations with respect to rulemaking challenges around the country, including the EPA’s Clean Air Act Risk Management Plan Rule, TSCA Prioritization Rule, Ozone National Ambient Air Quality Standard, Regional Haze Federal Implementation Plan for Arkansas, and the Definition of Solid Waste Rule.
Our Team
Sidley’s environmental appeals lawyers have the experience and the depth to handle the most complicated matters arising under environmental and natural resources laws. When it becomes necessary to challenge an agency rule or appeal a lower court ruling, we draw upon the many resources of the firm as a whole to develop an unequalled approach that delivers powerful results when and where our clients need them most.