Shaping Policy at Every Stage
KMCL helps clients navigate the legislative and regulatory processes by which federal and state environmental requirements are developed.
In doing so, we maximize our clients’ ability to provide appropriate input at each legislative and regulatory stage, thereby maximizing desired outcomes. Our approach also ensures that an appropriate record is preserved should litigation thereafter be required.
We represent numerous clients on energy and environmental matters before the U.S. Congress and various federal regulatory agencies.
We maintain relationships with third-party technical consultants and have vast experience working effectively and efficiently with them on issues, such as detailed technical reviews of exposure assessments in those situations where such high-level technical input is necessary.
Please contact any KMCL attorney for more information on this area of KMCL’s practice.
Administrative Laws and Standards
We are experienced in a variety of administrative laws and standards, including:
- Administrative Procedures Act
- Freedom of Information Act
- Paperwork Reduction Act
- Information Quality Act
- Various policies and practices of the Office of Information & Regulatory Affairs, including Circular A-4 (“Regulatory Analysis”) and Executive Order 12866
- In the U.S. Supreme Court, a KMCL attorney successfully challenged EPA’s Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17004 (Apr. 2, 2010) (“Triggering Rule”) and Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514 (June 3, 2010) (“Tailoring Rule”), obligating companies to obtain Clean Air Act permits for their greenhouse gas emissions. See Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427 (2014). The Court found EPA’s interpretation of the Clean Air Act unreasonable and that the regulations at issue exceeded its regulatory authority. As a result, the regulations were vacated upon remand to the Court of Appeals for the D.C. Circuit. See Coal. for Responsible Regulation, Inc. v. Envtl. Prot. Agency, 606 F. App'x 6 (D.C. Cir. 2015).
- Several KMCL attorneys were successful in achieving the removal of a client’s property from the National Priorities List (NPL) because it had been unlawfully listed. KMCL began the effort by providing comments to the EPA objecting to the placement of the West Vermont National Drinking Water Contamination Site on the National Priorities List. After EPA listed the Site, KMCL challenged the listing by filing a petition in the Court of Appeals for the D.C. Circuit. The court vacated the listing, agreeing that EPA unlawfully failed to offer adequate scientific support for its decision and ignored the contrary evidence presented during the public comment period. See Genuine Parts Co. v. Envtl. Prot. Agency, 890 F.3d 304 (D.C. Cir. 2018).
- A KMCL attorney has been intimately involved in the regulatory process and subsequent litigation over EPA’s Waters of the United States (WOTUS) rulemaking, achieving numerous victories in the process, including (a) defeating the Agencies’ motion to transfer the matter to the Judicial Panel on Multidistrict Litigation, MDL No. 2663 (see In re: Clean Water Rule: Definition of “Waters of the United States,” MDL No. 2663 (J.P.M.L. Aug. 19, 2015)); (b) obtaining a nationwide preliminary injunction of the WOTUS rule in the Court of Appeals for the Sixth Circuit (see In re E.P.A., 803 F.3d 804 (6th Cir. 2015)); and (c) successfully challenging the D.C. Circuit’s jurisdictional decision in the U.S. Supreme Court (see Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018), requiring all challenges be brought in district court per the letter of the Clean Water Act). Following remand, the WOTUS regulation was again preliminarily enjoined by several district courts across the country as an unlawful extension of EPA’s regulatory authority.
- Several KMCL attorneys represented a major utility petitioner in EME Homer City Generation, L.P. v. Environmental Protection Agency, Case No. 11-1302 (D.C. Cir.), challenging EPA’s promulgation of the Cross-State Air Pollution Rule. The effort resulted in a rare stay of the rule pending resolution of the merits and ultimately a partial remand of the rule to the agency.
- A KMCL attorney assisted an agricultural client in submitting comments on EPA’s Emissions Standards for Boilers and Process Heaters and Commercial/Industrial Solid Waste Incinerators (“Boiler MACT Rule”) and then filing the first legal challenge of the rule in the Court of Appeals for the D.C. Circuit (see United States Sugar Corporation v. EPA, No. 11-1108 (D.C. Cir.)). The effort resulted in a partial vacatur of the rule and a partial remand to the agency.
- KMCL attorneys have represented numerous clients through the rulemaking process by submitting written comments, engaging in stakeholder meetings, and participating in public hearings. For example, KMCL attorneys have submitted comments on behalf of clients to more than a dozen Department of Transportation hazardous materials rulemaking dockets; represented a mining client in providing comments related to the withdrawal of lands for mining by the Bureau of Land Management for the protection of the Greater Sage Grouse (GRSG); submitted written comments on behalf of a utility to the Georgia Environmental Protection Division regarding the 2018 Reissuance of the GAR100002 Infrastructure Preliminary Draft Permit; and, on behalf of a chemical company, submitted written comments and presented expert testimony in public hearings to revise the Water Quality Standards for the Chicago Area Waterway System and the Lower Des Plaines River.
- KMCL attorneys have prepared amicus curiae (“friend of the court”) briefs to give clients a voice in litigation over relevant rules and regulations but without engaging as a full litigant. For example, on a behalf of a utility, KMCL attorneys filed an amicus curiae brief in the Court of Appeals for the D.C. Circuit challenging EPA’s Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015); a KMCL attorney represented a consortium of amici curiae, challenging the validity of Pennsylvania’s “tax wash” doctrine on constitutional and statutory grounds, see Herder Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016); and a KMCL attorney submitted an amicus brief to the U.S. Supreme Court supporting the Petition for Writ of Certiorari in the Boiler MACT Rule litigation.
- KMCL attorneys have had significant involvement in the drafting of many state-level environmental laws, regulations and processes, including the Georgia Voluntary Remediation Program (VRP) Act of 2009 and the Georgia Hazardous Site Response Act (HSRA) statutory and rule amendments of 2014.
- KMCL attorneys have also represented government entities against challenges to their environmental ordinances and regulations. For example, a KMCL attorney successfully defended flow control ordinances adopted by the City of Albany, Georgia and Dougherty County, Georgia from constitutional challenge. See Quality Compliance Servs. v. Dougherty County, 553 F. Supp. 2d 1374 (M.D. Ga. 2008).
- KMCL lawyers have particular experience defending chemicals and chemical products through a combination of legal, regulatory, policy and scientific advocacy. Because some of our partners are former chemical and environmental engineers, we have an enhanced ability to provide technical advocacy. We have specific experience on products raising indoor air risks, such as diesel exhaust and environmental tobacco smoke. We are experienced in dealing with organizations such as the International Agency for Research on Cancer, the National Toxicology Program, and the National Institute for Occupational Safety and Health. We maintain relationships with third-party technical consultants and have vast experience working effectively and efficiently with them on issues, such as detailed technical reviews of exposure assessments in those situations where such high-level technical input is necessary.
KMCL has been lauded as “simply the best group of environmental attorneys I have ever encountered. They are true experts in the field. They are also creative, well-respected and always client-centered in their approach.”