Environmental Group

Environmental issues affect most public entities and many bond financings. Orrick's Environmental Group has a comprehensive environmental law practice, with particular experience in virtually all federal and California environmental laws. The Group regularly works in conjunction with Orrick's number one ranked Public Finance Department on environmental, energy and water resources problems that occur in connection with tax-exempt financing. The Group also works directly with a number of public entities in various states on these issues apart from any particular financing.

Examples of areas where public entities may require the assistance of environmental counsel are:

• California Environmental Quality Act (CEQA) matters - counseling and compliance work, including selection and supervision of consultants, preparation of responses to comments on environmental documents, conduct of public hearings, etc. We have extensive experience in counseling on CEQA requirements related to financings as well as in defending public agencies and private parties in CEQA lawsuits, both at the trial and appellate level.
• Solid Waste - there is a complex set of regulations governing the construction, operation and closure of landfills accepting municipal solid waste. In addition, local governments are required to undertake a comprehensive planning effort to reduce the amount of waste sent to such landfills and to correspondingly increase the amount of materials that are reused and recycled. Some localities may also have a "dump" site within their boundaries that requires closure and which may involve cost-recovery from other parties or pursuit of insurance coverage.
• Superfund matters (State and Federal) - public entities are increasingly finding themselves designated as responsible parties at Superfund sites and there is an emerging trend for private parties to seek substantial costs from those public entities. In situations where public entities are forced to respond, counsel is also needed to seek contribution from other parties who sent wastes to the site in question.
• Water rights - water and irrigation districts may become involved in proceedings to adjudicate the quality and conditions of their riparian and/or appropriative water rights. These proceedings may take place either in the Superior Court or before the State Water Resources Control Board. In addition, many districts are facing challenges from environmental and citizen groups contending that so-called instream uses, i.e., fish and wildlife enhancement, take priority over their water rights.
• Water quality - there are state and federal regulations governing the quality or water stored in reservoirs for distribution to domestic users as well as extensive regulation of discharges of non-hazardous effluent to public bodies of water. Any public entity that operates a publicly-owned treatment works (POTW) may from time to time be involved in an enforcement action or may challenge requirements that are attached to their discharge permits.
• Transactional matters - the purchase, sale, condemnation, financing or other transaction involving industrial property or other properties likely to be contaminated generally should be preceded by some level of environmental due diligence. The process involves hiring and supervising environmental consultants, interpreting their results of their investigation and structuring the transaction to allocate any identified risks.
• Redevelopment agencies - section 33459 et seq. of the Health and Safety Code grants redevelopment agencies authority to remedy or remove releases of hazardous substances from properties within their designated project areas. Responsible parties are made liable to the redevelopment agency for the cost incurred in such actions and reasonable attorneys fees are also recoverable.
• Mello-Roos districts - districts also have authority under the Mello-Roos Act to issue bonds for hazardous waste cleanups and to seek cost recovery, including the cost of the financing, from responsible parties.
• Stormwater discharges - pursuant to authority of the Clean Water Act, parties operating facilities which may create hazardous stormwater discharges are required to monitor and control such discharges. Public entities are not exempt from these regulations and may be required to monitor maintenance yards, bus storage facilities, etc.
• Underground storage tanks (USTs) - cleanup of facilities with leaky USTs; preparation of claims on the state UST cleanup fund; handling of claims for insurance coverage; and counselling regarding removal of USTs or retrofitting of existing systems.
• Environmental insurance coverage - comprehensive general liability policies (CGL), particularly those issued before the 1970s, are a valuable source of funds for environmental cleanups. Insurers typically contest coverage under their policies, on a complex variety of legal and factual grounds, and coverage litigation is often necessary.
• Criminal liability - many environmental statutes now contain provisions creating administrative, civil and criminal liabilities for violations. Various district attorneys prefer to enforce the statutes in the criminal context and will name individuals, e.g., officers, directors, supervisors, managers, etc., where the facts warrant naming those individuals.
• Military base closures - most closed military bases contain numerous heavily contaminated sites, and environmental restoration efforts and planning for potential liabilities are critical to the overall success of base redevelopment. Cleanup methods and levels will influence land-use choices, and interested parties need counsel to effectively participate in the process.