The Hunton & Williams LLP practice under the Clean Air Act and other air quality laws is one of the most extensive in the nation. The firm's environmental team began its air quality regulatory practice shortly after enactment of the Clean Air Act of 1970. The practice expanded as we assisted clients during the legislative development and implementation of the 1977 and 1990 amendments to the Act.
For more than three decades, the firm's environmental lawyers have provided clients a full range of services under all of the Act's major programs, including representation in rulemakings and administrative proceedings, new and existing source permitting, appellate litigation, enforcement defense, and business transactions. In the United States, our air regulatory practice includes representation at the federal, state, and local levels. Our International and European Environmental Law Practice also addresses air regulatory issues arising outside the United States. Working with our Government Relations team, we advocate our clients' interests before the executive and legislative branches of government and regulatory agencies around the world.
The firm's clients on Clean Air Act and other air quality matters include most major industrial groups that are affected by air quality regulations, including electric utility companies (both as individuals and through trade associations), chemical manufacturers, pulp and paper companies, oil and gas companies, aluminum manufacturing, petroleum pipeline entities, coal companies, waste disposal concerns, road builders, liquefied gas storage and distribution companies, pharmaceutical companies, and various other manufacturers. We also represent groups of clients (including the Utility Air Regulatory Group) collectively in rulemakings and litigation under the Act on matters involving a wide range of public policy, regulatory, and administrative law issues.
Hunton & Williams' environmental lawyers participate in all types of administrative proceedings and rulemakings arising under clean air laws. Our national experience includes representation in numerous Clean Air Act rulemakings, including those addressing development, review, and implementation of National Ambient Air Quality Standards (NAAQS); control of new sources under the New Source Performance Standards (NSPS), New Source Review (NSR), and Prevention of Significant Deterioration (PSD) programs; visibility impairment and Regional Haze; control of Hazardous Air Pollutants (HAPs) through technology-based MACT standards; regulation of motor vehicles, motor vehicle fuels, and fuel additives; development and implementation of market-based emission allowance trading programs, such as the Acid Rain Program and Federal NOx Budget Trading Program; transportation conformity and general conformity determinations; requirements for state and federal Title V Operating Permit Programs; and issues related to Tribal implementation of Clean Air Act programs. In rulemakings, our lawyers work both to make the rules the most reasonable possible and to create a complete record in the event of judicial review.
In addition to national rulemakings, our air regulatory lawyers also have experience:
- participating on behalf of clients in EPA, state, and regional advisory committees and planning organizations on issues such as nonattainment, visibility impairment, and regional haze;
- assisting clients in commenting on agency guidance and policy on numerous air regulatory issues; and
- participating in state, and local rulemakings and administrative proceedings.
Our lawyers also represent clients on source- or company-specific issues related to development and implementation of rules, including:
- preparing applications for waivers and variances from state and federal emission or opacity standards;
- preparing petitions for approval of alternatives or exceptions to applicable requirements, including emission monitoring and reporting;
- challenging EPA risk assessments and health effect studies used to set dose-effect relationships and reference doses; and
- counseling clients on the multimedia impacts of air emissions including persistent bioacumulative toxics (PBTs) and eutrification of water bodies caused by nitrogen emissions.
Compliance Counseling and Auditing
Once rules are in place, Hunton & Williams' air lawyers help clients to understand and comply with applicable requirements. Building on experience gained through participation in rulemakings and defending enforcement actions, we also have experience:
- assisting clients in identifying and interpreting applicable permitting and regulatory requirements and counseling clients on what is necessary to comply;
- educating company officials regarding the standards for certifying compliance under various programs, such as Title V and the Acid Rain Program, and assisting in the development and implementation of internal programs to support those compliance certifications; and
- assisting in design and performance of environmental audits and compliance assessments.
New and Existing Source Permitting
Some companies mistakenly view permitting as primarily presenting technical issues. Hunton & Williams' air lawyers regularly represent clients on a variety of legal issues associated with new and existing source permitting to avoid unnecessary requirements and to advocate permits terms that are clear, accurate, and reasonable. Specifically, we have experience:
- developing and implementing strategies for avoiding applicability of major New Sources Review (NSR);
- counseling clients regarding preparation of PSD and NSR preconstruction permit applications, negotiating permit terms, preparing witnesses and material for public hearings, and litigating unfavorable permitting decisions;
- counseling clients regarding preparation of applications for Title V operating permits and permit revisions, and negotiating Title V and state permit conditions;
- assisting in development of Compliance Assurance Monitoring (CAM) plans for inclusion in Title V permits;
- assisting in development of "case-by-case" MACT requirements under § 112; and
- representing clients in appeals of air permits brought by citizen groups or other third parties.
Challenges in the federal courts to EPA actions under the Act are frequent and raise issues important to companies' compliance obligations as well as to the development of the law. Hunton & Williams' air lawyers represent clients in many of these judicial proceedings, sometimes challenging EPA, sometimes supporting EPA against challenges from environmental groups, state governments, or others.
Our lawyers have successfully represented clients in United States Court of Appeals challenges to both legislative and interpretive rules and have served as lead counsel in numerous multiparty challenges. Our list of representative cases is extensive, including many landmark cases involving Clean Air Act implementation and administrative law principles.
Although we have litigated many cases, not all of the appeals we file for our clients require judicial decisions. In many instances, our lawyers have been successful in negotiating settlements under which EPA has voluntarily revised regulations or policy or issued helpful interpretations or guidance.
Hunton & Williams' air lawyers defend clients in enforcement actions brought by federal, state, and local agencies as well as in citizen suits. Our Clean Air Act defense experience includes:
- representation of electric utility, pulp & paper, and chemical manufacturing industries in defense of major federal enforcement actions alleging violations of New Source Review (NSR) permitting requirements;
- successful defense in a significant penalty case against a chemical company, resulting in a holding that regulated entities must be given fair notice of changes in agency interpretation or application of environmental standards;
- development of strategies and defenses for use in defending and avoiding enforcement based on federal or state rules on "credible evidence" or on "compliance certifications" made by company officials; and
- numerous other representations in civil environmental enforcement and defense and defense of environmental crimes.
Air regulatory issues may also arise in the context of business transactions. Moreover, with the increased use of market-based systems for controlling pollution, air regulatory issues may even trigger such transactions. Hunton & Williams transactional air lawyers have:
- coordinated air quality aspects of due diligence investigations and advised investors, sellers, and buyers on air regulatory related risks;
- prosecuted and defended commercial indemnification claims between buyers and sellers of facilities based on costs associated with air quality compliance matters that arise or are discovered after sale;
- counseled clients regarding emission allowance transactions under market-based programs, like the Acid Rain Program and state and federal NOx Budget Trading Programs; and
- counseled and litigated on behalf of clients on Clean Air Act transportation conformity and general conformity issues related to land development projects.
Hunton & Williams has one of the largest groups of lawyers in a single law firm representing clients on air quality matters. The examples above illustrate the breadth and variety of our air regulatory practice in dealing with national, local, and facility-specific issues. Our ability to combine knowledge, experience, and perspective regarding all aspects of air quality regulation, ranging from local to international levels, provides us with a truly unique air regulatory practice.