Malcolm is well versed in a wide range of complex environmental law issues. Clients ranging from retailers to manufacturers appreciate his forward-looking approach to solving problems.

Malcolm has developed a sophisticated practice covering a wide variety of environmental laws and statues, and is always ready to assist clients, whether it be with air quality and product/chemical safety or environmental auditing and due diligence. He has gained a broad perspective of the numerous challenges facing companies operating in California, developing particularly in-depth knowledge of California’s Proposition 65 and the California Environmental Quality Act (CEQA), as well as valuable insights on climate change and contaminated properties issues specific to California’s legal market.

He also represents clients on emerging issues such as California’s AB 32, facility permitting and closure, emissions trading, environmental insurance and consumer product safety (including CPSIA) matters.

Malcolm’s clients appreciate his business-savvy approach to helping them secure permitting to build or modify facilities, navigate rulemaking processes, understand and comply with complex regulatory programs, conduct emissions (including carbon) trades, challenge agency enforcement actions and defend against citizen suits. His advice to clients helps them resolve disputes, understand environmental laws and plan confidently for the future.

Large and small companies in the industrial minerals, energy, oil, manufacturing, aerospace, real estate, automotive, hospitality, and financial sectors and trade associations are among his clients.

Malcolm began his career at the US Environmental Protection Agency’s headquarters in Washington, DC. He left EPA to co-found AER*X, the nation’s first emissions trading consulting and brokerage firm assisting clients to monetize environmental credits. Subsequently, Malcolm opened AER*X/RMT’s (an environmental and engineering consulting firm) first California office to more effectively and efficiently service client needs. 

Relevant Experience

  • Regulatory Agencies: Malcolm represents a broad array of clients before local, regional, state and federal agencies in permitting projects/facilities, transactional due diligence, defending enforcement actions, compliance matters, seeking variances and at rulemaking hearings.
  • Regulatory Challenges: Malcolm has taken the lead role in strategizing approaches substantively impacting rulemaking outcomes and, when needed, challenging regulations adopted by local and state agencies in court. Challenges have been based on substantive and procedural deficiencies in the adoption process and in some cases as the regulation is applied in particular circumstances.
  • Enforcement Defense: Joint and individual representation of multiple construction and industrial materials industry clients to defend local air agency enforcement allegations. Matters concluded with minor penalties, but also a requirement that the agency beneficially amend specified regulations.
  • Emissions Trading: Actively engaged in emissions trading issues, including generating, certifying and preserving emission reduction credits (ERCs), and negotiating and documenting transactions, including carbon credits.
  • California’s Proposition 65: Innovatively represents trade associations and their members, industrial facilities, large and small manufacturers, distributors and retailers relating to copious claims brought by the California Attorney General local prosecutors, and private plaintiffs to defend against alleged consumer products, occupational and environmental exposures. Malcolm counsels clients on risk management, testing and systems to comply with Proposition 65.
  • Emergency Response: Handled all aspects of a multi-agency (local, regional, state and federal) investigation pertaining to a large waterfowl and fish die-off resulting in no enforcement action against client.
  • Energy and Alternative Energy: Lead and supporting counsel on various energy projects involving siting, licensing, certification (California Energy Commission) and compliance. Projects include natural gas, LNG, bio-mass, pump water storage, landfill gas, coal, wind and geothermal facilities.
  • Due Diligence: Simultaneously managed five environmental/ engineering consulting firms conducting extensive environmental assessments of 250+ properties in multiple countries. Necessary to close a $1,100,000,000 transaction.
  • Emergency Response: Leads and continues to handle a team of lawyers and client staff concerning District Attorney’s allegations to resolve alleged illegal disposal and transport of hazardous wastes from more than 180 retail stores across California.
  • Product Safety: Frequently advise clients on CPSC requirements including CPSIA, Federal Hazardous Substances Act and Flammable Fabrics Act and pesticides, pesticide products, and antimicrobial claims. Assists clients with product labeling.

Sample Litigation

  • Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (Cal. App. 4th Circuit) (2006).
  • Consumer Def. Group v. Rental Housing. Indus. Members (Cal. App. 4th Circuit) (2006).
  • PSC Geothermal Services Co. v. Superior Court, 31 Cal.Rptr.2d 213 (1994) (concerning District Attorney’s search and seizure of environmental consultant files).
  • The Steel Co. v. Citizen For A Better Environment, Amicus Curiae Brief, 523 U.S. 83, (1998).

Memberships

  • Founding Member, Environmental Auditing Roundtable
  • Member and Past Vice-Chair, Section on Environment, Energy and Resources, American Bar Association, 1997-1998
  • Chair, Environmental Law Section, 1998-1999; Chair, Air Quality Sub-Section, 1994-1995, Los Angeles County Bar Association
  • Board Member, Prop. 65 Clearinghouse Advisory Board

Awards & Recognition

  • 2017 Chambers USA Environment Law Firm of the Year
  • Selected as a Super Lawyer for Environmental Law, California Lawyer magazine, 2013-2015. A description of the selection methodology can be found on Super Lawyers’ webpage.
  • AV® Preeminent™ Peer Review Rated, Martindale-Hubbell. A description of the selection methodology can be found on Martindale-Hubbell’s webpage.

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