Environment & Energy Litigation | McCarter & English, LLP

Our clients often are confronted with seemingly intractable obstacles and conflicts. We help them navigate these challenges and, when necessary, strongly defend or pursue their interests in litigation to reach favorable outcomes.

Environmental Litigation

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Our environmental team is highly skilled and experienced at defending or pursuing litigation involving virtually every major federal and state environmental law and regulation. We are well-versed and prepared to respond to challenges that arise under the Environmental Protection Agency’s (EPA’s) and state Superfund programs and related litigation, including Natural Resource Damages (NRD) claims. We work on diverse matters involving major U.S. and state environmental programs, including advising on proposed legislative and regulatory initiatives.

Even companies with strong environmental compliance track records, especially those with legacy operations, can find themselves the focus of environmental cleanup actions and litigation. Many such companies rely on our environmental team for its broad experience defending enforcement actions or pursuing other responsible parties, including handling multiparty Superfund litigation, NRD claims, cost recovery cases, transaction-or contract-related environmental claims, responses to governmental enforcement proceedings, and insurance coverage litigation for policyholders. In coverage disputes, our insurance coverage lawyers have helped recover hundreds of millions of dollars for clients’ environmental losses. We serve as mediators in various environmental disputes and frequently represent clients in arbitrations, mediations, or other alternative dispute resolution proceedings, including allocation proceedings among multiple potentially responsible parties.

Energy Litigation

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Providing clients with access to affordable, reliable energy supply is at the forefront of our energy practice. Securing this objective may require litigation that often pushes against the interests of deeper-pocketed opponents. Our lawyers are known for their strategic and cost-effective representation at all levels of federal and state administrative litigation, rulemakings, and appeals involving matters affecting the electric and natural gas industries at both wholesale and retail levels.

Our federal administrative litigation and our rulemaking experience covers matters ranging from rates, terms, and conditions of power sales and transmission service to pipeline construction projects to reliability standards. Our lawyers have represented clients—from electric cooperatives and municipal gas or electric utilities, to state regulators, to large energy consumers—in virtually every major Federal Energy Regulatory Commission (FERC) policy determination over the past 30 years, including those concerning industry restructuring, rate design, regional energy market design, market-based rates, merger policy, open access transmission, and wholesale market rules.

At the state level, we have appeared for clients before state commissions, agencies, and courts on such matters as mergers and acquisitions, smart grid deployment, dynamic energy pricing, and retail rates, terms, and conditions of service.

We have represented clients’ interests before credit rating agencies, municipal councils, and regional transmission organizations.

Acting as the counsel to the court-appointed statutory receiver, obtained an Order approving a settlement agreement authorizing the sale of a 10-year-neglected, eight-acre parcel of land in Newark, New Jersey, free and clear of liens, claims and encumbrances, with all such liens attaching to the proceeds for later resolution and adjustment amongst the creditors. Assisted the statutory receiver in negotiating the settlement within 18 months of appointment to facilitate the site’s environmental closure and remediation.

Represented one client in connection with the Lower Fox River Superfund Site and in defense of NCR Corporation v. Whiting Paper Co. and United States v. NCR Corporation.

Represented a number of clients in connection with the Centredale Manor Restoration Project Superfund Site (Woonasquatucket River) and in defense of Emhart v. United States.

Represent a number of clients in connection to the Lower Passaic River Superfund Site. including defending clients in Occidental Chemical Corporation v. 21st Century Fox America, Inc., et al., in which Occidental Chemical Corporation is seeking cost recovery and contribution under CERCLA from more than 100 defendants.

Obtained partial summary judgment on liability, confirming a right to contribution under the New Jersey Sanitary Landfill Closure Act, and then won damages after a three-day trial for the former owner of land adjacent to the former Keegan Landfill in Kearny, New Jersey against the Town of Kearny. Affirmed on appeal, per curiam.

Acting as the court-appointed statutory receiver, obtained an Order approving a settlement agreement authorizing the sale of a 10-year-neglected, eight-acre parcel of land in Newark, New Jersey, free and clear of liens, claims and encumbrances, with all such liens attaching to the proceeds for later resolution and adjustment amongst the creditors. Negotiated the settlement within 18 months of appointment to facilitate the site’s environmental closure and remediation.

Represented an oil company in securing a favorable settlement of alleged environmental liabilities with the current owner of a former copper smelting operation site to facilitate redevelopment of the site. We continue to represent the client in alleged Superfund liability issues involving off-site deposition of hazardous substances allegedly originating from the site.

Negotiated a favorable settlement for a medical device company and its parent companies concerning alleged liability and allocation issues at a Superfund site in New Jersey. We continue to negotiate matters related to a developer’s proposed productive reuse of the site within the parameters of a remedial design consent decree.

Represents three chemical companies in responding to an unprecedented New Jersey directive for a statewide cleanup of newly emerging contaminants (PFAS). Also, defending these companies against claims for natural resource damages (NRD) and NRD assessments brought by five states (New Jersey, for PFAS and other alleged contaminants, and New Hampshire, Vermont, Ohio, and Michigan), and claims for damages by various water utilities in New Jersey, New York, and California. Also representing these clients in defense of a putative class action in federal court in Ohio, and defending them against multiple claims for alleged personal injury and medical monitoring in federal court in New Jersey.

Negotiated the acquisition by the Navajo Tribal Utility Authority (NTUA) of approximately 268 miles of an interstate natural gas pipeline—and related compressor stations—to serve several Navajo Nation communities that would have lost service from the prior pipeline owner abandoning the line. On federal approval, the line will be transferred to NTUA with the prior owner providing funds for NTUA to integrate the line into its distribution system. We also helped NTUA obtain federal authorization to acquire and operate the interstate pipeline facilities.

Represented two Southwestern cities and a tribal authority in a Natural Gas Act interstate natural gas pipeline rate proceeding at the Federal Energy Regulatory Commission (FERC), winning a new discounted rate for the clients after litigation with their natural gas provider.

Obtained for the APGA a favorable ruling from the U.S. Department of Energy (DOE) interpreting the use of non-condensing technology on residential natural gas furnaces as a performance-related feature that cannot be eliminated by adopting an energy conservation standard under the Energy Policy and Conservation Act. The DOE correspondingly withdrew a proposed efficiency standard that would have required many residential consumers to replace non-condensing technology natural gas furnaces with costlier higher efficiency condensing technology gas furnaces or electric heat pumps.

Represent a large international industrial engineering and manufacturing company in a response action involving the Portland Harbor Superfund Site in Oregon. Our role has included negotiating the remedial design of a portion of the environmental remedy and separate settlement negotiations with federal, state, and tribal natural resource damages trustees concerning potential responsibility for a share of the clean up costs of the site.

Led a multidisciplinary team in resolving multimillion-dollar environmental, bankruptcy and insurance coverage claims against a commercial masonry company concerning a five-mile stretch of the Duwamish River that flows into Elliott Bay in Seattle, Washington.

Serves as lead counsel for a leading medical device manufacturer in all aspects of the Berry’s Creek Study Area Superfund site in New Jersey, including the site remedial investigation, potential remedy screening, allocation process, and potential natural resource damages assessment process. We participate in the Potentially Responsible Parties Group’s leadership and management and are involved with policy planning and strategy for the group and for our client.

Litigated cost allocation issues related to an investment in underground transmission facilities, saving the cooperative more than $5 million over time; representing client in the appeal before the U.S. Court of Appeals for the District of Columbia Circuit.

Obtained a favorable order from FERC rejecting an investor-owned utility’s attempt to directly assign our client more than $4.6 million in transmission upgrade costs, and obtained important precedent affirming FERC’s open access transmission policies.

Led a team of lawyers that defeated a class certification action seeking medical monitoring of over 50,000 people allegedly exposed to contaminated drinking water.

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