Appellate Litigation

Beveridge & Diamond, P.C. has been at the forefront of the development of environmental law in federal and state appellate courts since the advent of the field in the 1970s.  The Firm has represented corporations, trade groups and cities in scores of major cases shaping federal environmental laws and regulations, as well as federal and state constitutional and common law.  Beveridge & Diamond’s litigators – including many former federal and state appellate and trial court judicial law clerks -- have briefed and argued cases in the Supreme Court, every United States Circuit Court of Appeals, and state appellate courts across the country.  The Firm’s appellate practice succeeds because, like its trial practice, it combines the skills of experienced courtroom advocates with lawyers who thoroughly understand the regulatory and scientific landscape of environmental law.

Representative Matters
Representative Matters

Our record of success as appellate advocates includes the following representative matters:

  • We are representing clients challenging numerous Clean Air Act regulations including the major and area source boiler hazardous air pollutant regulations, and well as air regulations for reciprocating internal combustion engines and commercial and industrial solid waste incinerators. See, e.g. American Chemistry Council v. EPA, No. 11-1141 (D.C. Cir.) and consolidated cases.
  • We successfully represented the American Chemistry Council in a challenge to EPA’s greenhouse gas reporting regulations in the United States Court of Appeals for the District of Columbia Circuit. American Chemistry Council v. EPA, No. 09-1325 (D.C. Cir.) and consolidated cases.
  • We secured a major National Environmental Policy Act (“NEPA”) victory in late 2012, when the U.S. Court of Appeals for the Tenth Circuit unanimously upheld environmental studies supporting the Clean Water Act Section 404 permit issued to our client BNSF Railway for a proposed $250 million intermodal facility near Gardner, Kansas. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers , 702 F.3d 1156; 2012 U.S. App. LEXIS 24531 (10th Cir. 2012).  The Court rejected claims from environmental groups that the U.S. Army Corps of Engineers had violated NEPA by evaluating the project in an environmental assessment and the Clean Water Act by permitting project construction that would fill wetlands and other waters. 
  • In a complex constitutional issue of first impression, Beveridge & Diamond won a unanimous decision from a Ninth Circuit panel for California solid waste and recycling companies, allowing them to challenge in federal court a voter initiative that sought to limit the importation of solid waste into a county.  The Court of Appeals held that a pending lawsuit in state court that sought to enforce the voter initiative was not a state interest that warranted a federal court exercising Younger abstaining from hearing a challenge to the voter initiative. Potrero Hills Landfill v. Solano County , 657 F.3d. 876 (9th Cir. 2011). 
  • Beveridge & Diamond convinced the California Court of Appeal to affirm a preliminary injunction that blocks implementation of a county voter initiative that sought to halt biosolids recycling at a 4,700 acre farm in Kern County, California, owned by the City of Los Angeles. In a unanimous decision, the Fifth District Court of Appeal ruled that Defendant Kern County’s ban on land application of biosolids likely exceeded the County’s police powers because of the impacts of the ban on public utilities outside of Kern County that must manage biosolids through recycling.  City of Los Angeles et al. v. Kern County , 2013 Cal. App. Unpub. LEXIS 1115 (Feb. 13, 2013)
  • The Firm successfully defended BASF against a multi-year effort by Arkansas tomato farmers to void the registration of a key BASF herbicide used by rice farmers throughout the America’s rice growing region.  The case culminated in a unanimous ruling by the U.S. Court of Appeals for the District of Columbia Circuit that the plaintiffs were required to bring any challenge to the registration of the pesticide within six years of its initial registration, thus requiring dismissal of the lawsuit as untimely.  Hardin v. Jackson , 625 F.3d 739 (D.C. Cir. 2010). 
  • Representing clients in challenges to various regulatory schemes, including the major and area source boiler MACTs and Commercial and Industrial Solid Waste Incinerator (“CISWI”) rules, the Reciprocating Internal Combustion Engines (“RICE”) MACT.  We have also supported EPA’s efforts against various Sierra Club challenges, including filing an Intervenor brief in response to Sierra Club’s challenge to EPA’s ”completeness determination” under CAA § 112(c)(6).
  • Represented national trucking industry trade group in a D.C. Circuit challenge to EPA’s decision to authorize California to enforce its own emission standards on refrigeration transport unit (TRUs) engines under Section 209(e) of the federal Clean Air Act.  Am. Trucking Ass’ns v. EPA , 600 F.3d 624 (D.C. Cir. 2010).
  • On appeal to the Ninth Circuit challenging District Court holding that our client had no liability for mercury contamination relating to former mining operations, prevailed on three of four counts, and reached  highly favorable settlement of the one remanded count. McDonald v. Sun Oil Co. et al ,   548 F.3d 774, (9th Cir. 2008), cert. denied sub nom. Sunoco, Inc. v. McDonald , 129 S.Ct. 2825 (2009).
  • Representing the National Mining Association as intervenor-respondent in a Sierra Club challenge to EPA’s 2008 definition of solid waste.  Sierra Club v. EPA (D.C. Cir. 2009).
  • Submitted an amicus brief on behalf of appellant for Alliance of Automobile Manufacturers in Howmet Corporation v. EPA , et al.,  656 F. Supp. 2d 167 (D.C. Cir. 2009). 
  • Winning a reversal on appeal of a criminal judgment against a chemical manufacturing client for alleged violations of the Benzene Waste Operations National Emissions Standards for Hazardous Air Pollutants.
  • We convinced a federal appeals court to uphold a district court ruling that our client was a foreign sovereign that was immune from suit in U.S. courts despite arguments that our client's operation of a hydro power system caused direct economic effects in the U.S. California v. NRG Energy, Inc. (9th Cir. 2004).
  • Prevailed  on appeal to the United States Court of Appeals for the Second Circuit challenging  U.S. District Court holding that our client had no liability for cleanup of the Utica Terminal Harbor under the Comprehensive Environmental Compensation & Liability Act and the New York Navigation law, based on among other things, a ruling that “passive” contaminant migration from a neighboring property onto the client’s property did not provide grounds for CERCLA liability, rejecting a contrary Ninth Circuit ruling on passive migration. Niagara Mohawk Power Corporation v. Jones Chemical, Inc ., et al.,  315 F.3d 171 (2 nd Cir. 2003)
  • In a ruling hailed in a lead editorial in The Wall Street Journal, the Firm convinced the D.C. Circuit to vacate U.S. EPA's effort to flout best available science in setting standards for assessing cancer health risk. Chlorine Chemistry Council v. EPA , 206 F.3d 1286 (D.C. Cir. 2000).
  • In a case involving one of the cornerstones of the RCRA hazardous waste program, the definition of solid waste, we successfully briefed and argued a challenge to U.S. EPA's expansion of its regulatory authority over mineral processing materials that were not "discarded" and thus not "solid waste." Association of Battery Recyclers v. EPA , 208 F.3d 1047 (D.C. Cir. 2000).
  • We successfully defended MACT emission limits for medical waste incinerators against attacks by environmental groups in Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999).
  • We won a ruling from the highest court in Massachusetts ordering carriers to reimburse policy holders for the costs of defending thousands of asbestos cases. Simplex Technologies v. Liberty Mutual , 706 N.E.2d 1135 (Mass. 1999).
  • We helped secure the U.S. Supreme Court's extension of the right to trial by jury to claims of unconstitutional takings under Section 1983 of the Civil Rights Act of 1866. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).
  • We convinced the D.C. Circuit to strike down the effort by the Corps of Engineers and U.S. EPA to vastly expand their authority over wetlands (via the Tulloch Rule) in National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998).
  • We defeated at trial and on appeal New York State's lawsuit alleging threats to public health from the alleged contamination of a Long Island aquifer by a herbicidal byproduct. State of New York v. v. Fermenta ASC Corp. , 656 N.Y.S.2d 342 (App. Div. 1997).
  • We defeated a challenge to an innovative multi-site hazardous waste delisting that our client had obtained under RCRA in Horsehead Resource Development Co. v. EPA , No. 95-1286 (D.C. Cir. 1997).
  • We participated in the challenge to the natural resources damages regulations issued by the Department of the Interior. Kennecott Utah Copper Corp. v. USDOI , 88 F.3d 1191 (D.C. Cir. 1996).
  • In a major Title V case after the 1990 amendments, the Firm defeated U.S. EPA's "potential to emit" rule under Title V of the Clean Air Act in Clean Air Implementation Project v. EPA, No. 92-1303 (D.C. Cir. 1995).
  • In Solite Corp. v. EPA , 952 F.2d (D.C. Cir. 1991) and Mobil Oil Corp. v. EPA , 35 F.3d 579 (D.C. Cir. 1994), we prevailed in challenges to U.S. EPA's "Bevill mixture rule" that U.S. EPA had imposed on the mining industry.
  • The Firm narrowed the parameters of owner/operator liability under CERCLA in Long Beach Unified School District v. Godwin Living Trust, 32 F.3d 1364 (9th Cir. 1994).
  • We helped shorten the statute of limitations for enforcement of civil fines under TSCA in 3M Co. v. Browner , 17 F.3d 1453 (D.C. Cir. 1994).
  • We won an important Ninth Circuit decision narrowing the scope of the ESA and protecting the ability to sell property containing protected habitats in Marin Audubon Society v. FDIC, 999 F.2d 543 (9th Cir. 1993).
  • We defeated U.S. EPA's attempt to impose in a NPDES permit water quality standards at the point of discharge rather than at the edge of the appropriate mixing zone. Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73 (1st Cir. 1993).
  • Beveridge & Diamond successfully defended the dismissal of a challenge to the exchange of a conservation easement for a patent to mine coal. Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir. 1992).
  • We blocked U.S. EPA's application of the hazardous waste toxicity characteristic test to mineral processing wastes in Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993).
  • We maintained the household waste exclusion under RCRA for municipal incinerator ash in Environmental Defense Fund v. Wheelabrator Technologies, Inc ., 931 F.2d 211 (2d Cir. 1991).
  • Beveridge & Diamond has briefed and argued numerous judicial challenges to the major RCRA rule makings, extending back to the Firm's extensive involvement in the successful challenge to the mixture and derived-from rules in the major RCRA decision of Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1990).
  • We were the first law firm to successfully challenge U.S. EPA's decision to list a waste as hazardous under RCRA in American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990).
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