Environmental Law Compliance: Permits, Liability, and Risk Mitigation

The Clean Air Act requires every major stationary source to obtain a Title V operating permit specifying maximum allowable emissions, while the Clean Water Act requires industrial facilities to obtain an NPDES permit that sets technology-based effluent limitations, and a facility that exceeds its permitted limitations faces civil penalties of up to twenty-five thousand dollars per day. The environmental compliance and litigation and environmental law practice areas provide the permit acquisition, renewal, and compliance management needed.

The Resource Conservation and Recovery Act establishes a cradle-to-grave system under which the generator retains legal responsibility from generation through final treatment or disposal, and a generator cannot transfer legal liability by contracting with a licensed waste hauler. RCRA requires generators to maintain records and retain signed manifests, and the environmental liability and environmental compliance and litigation practice areas provide the RCRA compliance program design and penalty defense needed.

The National Environmental Policy Act requires federal agencies to prepare an environmental impact statement for any major federal action significantly affecting the quality of the human environment, and the EIS must identify and evaluate the environmental impacts and all reasonable alternatives before the agency makes a final decision. Courts have held that an EIS that fails to analyze a significant environmental impact is legally deficient, and the environmental law and environmental and climate change practice areas provide the NEPA documentation review and litigation defense needed.

A purchaser who acquires real property or a business without conducting environmental due diligence that satisfies the All Appropriate Inquiries standard under CERCLA may inherit the seller's environmental liabilities, including the cost of remediating historical contamination the purchaser did not cause. The corporate compliance and risk management and environmental liability practice areas provide the due diligence framework, contract negotiation, and liability allocation strategy needed.

CERCLA imposes strict, joint, and several liability on four classes of potentially responsible parties including current owners and operators, past owners and operators at the time of disposal, generators who arranged for disposal, and transporters who selected the disposal site, and a company identified as a PRP is liable for the full remediation cost regardless of the fraction of contamination it caused. The environmental compliance and litigation and environmental liability practice areas provide the CERCLA defense and remediation cost allocation strategy needed.

A company under criminal investigation can demonstrate that its violation was an isolated departure from an otherwise robust compliance program by presenting evidence of the environmental management system it had in place, the regular internal audits it conducted, and the corrective action it took. The United States Sentencing Guidelines permit a multi-point reduction for an organization that had an effective compliance program and cooperated with the government, and the ESG compliance and environmental compliance and litigation practice areas provide the compliance program design and criminal sentencing advocacy needed.

The SEC's climate disclosure rules, California's Climate Corporate Data Accountability Act, and parallel disclosure frameworks are creating legally enforceable obligations to measure, report, and verify greenhouse gas emissions, and a company that makes materially inaccurate climate disclosures faces securities fraud exposure and shareholder derivative litigation. The carbon emissions compliance and ESG compliance practice areas provide the disclosure framework design, greenwashing risk audit, and securities law defense needed.

The EU Corporate Sustainability Due Diligence Directive and comparable frameworks require companies with significant EU market presence to identify, prevent, and mitigate adverse environmental impacts throughout their global value chains, and a company that exports to the EU without supplier due diligence processes faces import restrictions, administrative penalties, and civil liability claims. Building an environmental law compliance system requires robust internal monitoring, contractual supplier obligations, and third-party audit programs, and the environmental and climate change and environmental law practice areas provide the supply chain due diligence framework and regulatory defense needed.