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In an era of increasing litigation surrounding environmental and climate change issues, even the best-run companies are wise to assess their compliance position and plan for a strong defense. In the emerging field of climate change law, the right answer to litigation is a trial team with a thorough understanding of the regulatory and policy underpinnings of the legal claims as well as the practical experience to manage the procedural and political aspects of the suit.

Our climate change litigation team understands the issues, the institutional sensitivities, and the strategies that together shape the outcome of litigation. Our core team of litigators includes former senior enforcement officials and legal officers, as well as white collar defense specialists with direct experience in the arena of environmental law. Importantly, during prior government service, our team members have been intimately involved in the development and enforcement of the air quality regulatory regime which is emerging as a leading vehicle for the development of federal climate change policy.

Our team brings its specialized experience to bear to help clients avoid, prosecute or defeat challenges relating to air emissions, climate change disclosure and liabilities, endangered species and nuisance litigation, citizen suits, emissions trading, state suits and crucial appellate litigation over permits and new regulatory initiatives. We also regularly advise companies on effective strategies for responding to or averting subpoenas and information requests, requests for information before Congress, and governmental investigations led by the Department of Justice, a U.S. Attorneys Office, the Securities and Exchange Commission, or a state District Attorney or Attorney General.

Our litigation work includes defense of citizen suits and insurance coverage disputes under the Endangered Species Act (ESA). Our approach in these actions combines trial lawyer advocacy with detailed regulatory knowledge and experience working with the two federal agencies that administer the ESA, the United States Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA). 

Building on decades of litigation experience, Bracewell's climate change litigation team brings together an incomparable team of lawyers that includes Lisa Jaeger, former acting General Counsel of EPA and Rich Alonso, former EPA chief of air enforcement for stationary sources. This team is buttressed by Jeff Holmstead, former Assistant Administrator of the Environmental Protection Agency, who oversaw the development of much of the air quality regulatory regime which is now a leading vehicle for the development of federal climate change policy; and Kevin Ewing and Jason Hutt, nationally recognized attorneys in climate change disclosure and upstream energy issues, respectively.

Selected Experience

Climate Change-Related Litigation

Advised one of five energy companies receiving a high-profile subpoena from the Attorney General of New York questioning the adequacy of disclosures to shareholders about potential risks and liabilities arising from climate change.

In a high-profile case involving unprecedented environmental and climate change challenges, Bracewell assisted an independent power producer in its effort to build public support, secure state legislative action and obtain permits for a large coal-fired plant on Navajo Nation lands in the Four Corners area of New Mexico. This project included counseling and advocacy on how climate change concerns would be dealt with under pending GHG regulation and legislation, National Environmental Policy Act (NEPA) analysis, public affairs management, interaction with the Bureau of Indian Affairs, Fish and Wildlife Service, National Oceanic and Atmospheric Administration, Council on Environmental Quality, and the Bureau of Land Management. The firm's work required complex legal and policy interaction with federal and state agencies, including with a Native American tribe, to solve unique siting issues on Indian lands. Bracewell also managed public and media relations on behalf of the client.

Represented a major energy provider in litigation against EPA for delaying issuance of a PSD permit for a new coal-fired power plant based on imposing new permitting requirements such as greenhouse gas (GHG) limits.

Counseled the developer of a low-carbon, cutting-edge biomass power plant in Texas in a permitting challenge, including negotiations with national environmental groups to resolve climate change-related permitting and adverse air quality issues.

Provided climate change-related representation and advice to a power producer in the permitting strategy for obtaining a New Source Review permit under the Clean Air Act (CAA) in the U.S. EPA Region 9. Our work ensured defensibility of the permitting record relating to potential GHG requirements and representation before the EPA's Environmental Appeals Board.

Advised an independent power producer on climate change and air quality issues related to the construction of three new coal-fired power plants in Texas, Arkansas and Georgia. The firm counseled the client on how it would be affected under existing and proposed climate change legislation and in climate change and permitting issues relating to air quality standards under the CAA.

Represented an independent power producer challenging an EPA regulation that prevents the company from exercising its qualified facility status in SO2 trading.

Appellate Advocacy

Prepared an amicus brief in the Massachusetts v. EPA climate-change case under the Clean Air Act in the United States Supreme Court.

Prepared an amicus brief in the Connecticut v. American Electric Power public nuisance lawsuit on appeal before the Second Circuit.

Represent specialty trade association in climate change litigation, through amicus briefs opposing liability for climate change imposed through judicial challenges.

Represent a transmission line developer in administrative appeals at the Interior Board of Land Appeals and the Interior Board of Indian Affairs regarding BIA's and BLM's Records of Decision to grant rights-of-way for the proposed line.  The appeal is brought by national environmental groups such as Sierra Club and the Center for Biological Diversity, and includes challenges related to climate change and endangered species.

Endangered Species Act and Citizen Suits

Represent one of the largest generators of electricity in the United States on a wide range of Clean Air Act and Endangered Species Act issues, including legal advice and advocacy before EPA to secure regulatory and policy reforms of major Clean Air Act regulatory actions, including reforms to the New Source Review program, addressing the recently vacated Clean Air Interstate Rule, new regulations and policy direction of EPA on regulation of greenhouse gas emissions.

Managed environmental issues, including the potential impact on wetlands and migratory birds, wind strength sampling, and mitigation and replacement of endangered species habitats, related to a number of wind farm projects, both onshore and offshore. This includes advice to the first energy developer to acquire offshore wind power leases from the Texas General Land Office.

Represent a transmission line developer in administrative appeals at the Interior Board of Land Appeals and the Interior Board of Indian Affairs regarding Bureau of Indian Affairs' and Bureau of Land Management's Records of Decision to grant rights-of-way for the proposed line.  The appeal was brought by national environmental groups such as Sierra Club and Center for Biological Diversity, and included challenges related to climate change, endangered species, cumulative impacts analyses and NEPA staleness.

Routinely advise wind power clients on potential NEPA and Endangered Species Act issues related to siting and development of wind power projects.

Represented a non-profit environmental institute in a lawsuit to protect the endangered shortnose sturgeon, which was being threatened by the Wilson Bridge project and nonpermitted discharges by local water systems in the Washington, D.C. area.

Handled a cert petition challenging EPA's effort to regulate intrastate non-commercial species as outside the scope of federal power under the Commerce Clause.

Provided advice relating to Section 7 of the Endangered Species Act consultation process in relation to the construction and permitting of a coal-fired power plant and how climate change impacts the species in question.

Developed strategy, provided representation before the EPA and drafted comments on GHG and hazardous air pollutants regulation on behalf of a major industrial products trade association. This representation included regulatory and legislative work on how cement will be regulated as the EPA seeks to address climate change under the existing CAA authority.