Legal teams across the public and private sector have their hands full looking ahead to air quality and pollution issues that promise to make the rest of the year a busy one both in and out of the courtroom.
Though a good chunk of air and climate lawsuits targeting Trump administration rollbacks are on pause, lawyers say they’re closely monitoring air quality and climate moves from the Biden administration. And that means a lot of watching, waiting, and advising.
Citizen suits, permit fights and potential litigation over the stringency of forthcoming standards are on attorney radars, especially against a backdrop of increasing calls for environmental justice integration.
Here are a few lawyers—and their teams—to watch as air issues make their way through the courts and agency desks:
The Clean Air Task Force legal team has been in overdrive following Trump-era rollbacks that softened pollution regulations, and senior counsel Ann Weeks has been in the thick of much of that litigation.
But it isn’t just cases that keep Weeks busy. She and her team are involved in administration rulemaking work “from the ground up.” Frozen litigation over Trump rollbacks provided some breathing room to think on how best to advocate for—or defend—air and climate policy, she noted.
Among Weeks’ priorities: oil and gas methane rules, carbon limits for power plants, mercury standards, and National Ambient Air Quality Standards are all at the top of her watch-list.
She hopes that the momentum towards more stringent air and climate regulation means she can spend more of her time advocating for science-based standards, rather than pushing back against regulatory action in court.
“There’s a lot on our plates, and there’s a lot on the agency’s plate,” Weeks told Bloomberg Law. “So we’re looking forward to engaging on all of those [issues].”
Prior to her 25 years with the Clean Air Task Force, Weeks worked as an environmental attorney in both the nonprofit and private sectors following a decade in the environmental planning world.
Litigation is ramping up against medical equipment sterilization facilities accused of emitting toxic doses of ethylene oxide, a chemical linked to cancer in concentrated doses.
Antonio Romanucci, founding partner of Chicago-based law firm Romanucci & Blandin LLC, spearheads a thicket of consolidated lawsuits against a Sterigenics plant in Willowbrook, Ill. That litigation, handled by a group of different law firms, has exploded to nearly 770 cases since August 2020, Romanucci told Bloomberg Law.
“This obviously doesn’t include myriad other locations around the country where news has broken of facilities emitting this known carcinogen into the atmosphere,” Romanucci said in an email. “I would expect similar lawsuits to be filed across the country.”
The EPA’s inspector general released an investigation last month that exposed efforts by Trump administration air officials to delay disclosing ethylene oxide risks to communities near high-emitting facilities. Romanucci said the report reveals how “ineffective” government is when under industry influence.
“We are intent on discovering exactly who was leading this charge to conceal this information and when found, they will be held responsible,” he said.
Romanucci also served as co-counsel with lead counsel Ben Crump representing the family of George Floyd in the Minneapolis police misconduct civil litigation. Together they settled for $27 million in March 2021.
Environmental Defense Fund general counsel and U.S. Clean Air Program lead Vickie Patton has her name on a number of high-profile Clean Air Act fights, including litigation over power plant carbon, cost-benefit, and methane rules.
Patton previously served in the EPA’s Office of General Counsel where she contributed to the Clean Air Act’s historic amendment process in 1990, prior to joining environmental non-profit, EDF.
Her work is rooted in three goals: securing new air and climate law, mitigating damage from Trump administration policies, and equitable “shared economic opportunity,” she told Bloomberg Law in an email.
Whether her team will spend more time defending the administration’s regulatory actions or filing lawsuits against them will depend on whether new rules “rigorously carry out” the EPA’s pollution responsibilities.
Still, the sustained support for climate concerns coming from the White House is a notable change from past administrations, according to Patton.
“For the first time in American history, we have a president who was elected to lead in tackling climate pollution and in providing environmental justice,” she said.
McGuireWoods Air Team
The McGuireWoods LLP powerhouse trio of Clean Air Act lawyers have a full plate making sure industry clients know what to expect as Biden unveils more clean air and climate actions.
Makram Jaber, Allison Wood, and Aaron Flynn transitioned to McGuireWoods last year to build up its environmental practice in Washington, D.C. The three have extensive Clean Air Act litigation chops, including a hand in Massachusetts v. EPA, the landmark Supreme Court ruling that now serves as the foundation of federal climate regulations.
Fights over operating permits for large emission sources is “clearly some place where the environmental groups are finding it useful to make their objections known,” Jaber said in an interview. “And there’s going to be a lot of litigation about that, I suspect, depending on what the administration does.”
Jaber sees current lawsuits over Title V air permits as a “harbinger” of further litigation, especially as environmental justice concerns are factored more and more into permit decisions.
“There have been several cases in the last few years in particular, where environmental justice has been the basis for rejecting an air permit or rejecting a NEPA analysis,” Flynn said. “I think we’re gonna see lots more of that going forward.”
Wood and Flynn said they’re busy monitoring regulations in areas such as cross state air pollution and carbon limits.
“A lot of what I’ve been doing to date, since the President was elected, is advising clients on what are the Clean Air Act pathways that could be used to obtain that type of reduction,” Wood said, referencing to Biden’s latest commitment to a 50% reduction in U.S. carbon emissions.
And companies have had a lot of questions on what fills the void after Trump-era regulations are taken off the books. Namely, whether Obama-era standards or frozen litigation could get re-launched as Trump rules are scrapped.
Potential government requirements on environmental, social, and corporate governance reporting, or ESG, is another area of intense scrutiny for companies, the attorneys noted.
“If you’re a publicly traded company, at this point, you are not going to be able to ignore ESG,” Wood said.
In her new role as the EPA’s acting general counsel and principal deputy general counsel, Melissa Hoffer will temporarily play dual roles heading up the agency’s legal arm.
The office provides legal counsel during the rulemaking process and represents the EPA alongside the Justice Department in litigation. Jeff Prieto was nominated last week by Biden to the general counsel job, and Hoffer will continue to lead until Prieto is sworn in.
She started her new role one day after leaving her post as lead attorney of Massachusetts Attorney General Maura Healey’s (D) Energy and Environment Bureau, where she supervised cases on carbon pollution, mercury standards, and deceptive marketing against fossil fuel companies.
Hoffer said she and her colleagues have “hit the ground running” following President Joe Biden’s executive order on the environment, which called on agencies to reexamine many Trump-era rulemakings, including a gamut of air issues.
“We are a little past three months in and I can tell you it is going to be a marathon AND a sprint,” she said in an email to Bloomberg Law.
Environmental justice will be a central pillar in the general counsel’s work moving forward, Hoffer noted. The Office of the General Counsel is part of an EPA-wide audit studying barriers to government services felt by communities disproportionately burdened by pollution.
—With assistance from Ellen M. Gilmer.