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.
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.
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).
Speaker, Averaging Maximum Allowable Dose: Judging the Science, Proposition 65 Clearinghouse Conference, San Francisco, CA, September 15, 2014
Speaker, Is Cooperative Federalism Alive Under the Clean Air Act?, LSI Conference New Development in Air Quality Regulation in California, Los Angeles, CA, July 11-12, 2013
Speaker, What Role Does the AG Play in Private Enforcement Actions?, Proposition 65 Clearinghouse Conference, San Francisco, CA, April 8, 2013
Panelist, Regulatory Perspectives, Sustainability Symposium, Sustainable Remediation Forum ("SURF"), San Diego, CA, January 31, 2012
Speaker, Strategies for Managing A Company's Risk, 2011 Prop. 65 Clearinghouse Conference, San Francisco, CA, November 29, 2011
CPSIA and Prop. 65: Comparing Apples To Oranges, Proposition 65 Clearinghouse Conference, September 2010
Sustainability Policies, Cap and Trade and the Impacts to Business, the Southern California Chapter of the Association of Energy Engineers' 2010 Annual conference: Energy Sustainability: Pathways, Policies And Pitfalls, September 2010
Speaker, Managing Your Clean Air Act Title V Permits, Southern California Gas Co, 2001-2009
Product Liabilities You Never Anticipated: A California Prop. 65 Executive Briefing, New York, NY, May 1, 2009
Speaker, Environmental Management Systems & Compliance Management: From Albatross to Strategic Advantage?” American Council of Engineering Companies (ACEC), 2008 Fall Conference, Sustainability in the Built Environment, October 2008
Co-author, Chapter 4 Section 13: REACH's Impact in the Rest of the World, The European Union REACH Regulation for Chemicals: Law and Practice, Oxford University Press, 2013
Co-author, California’s cap and trade regulations: Will they survive long enough to make history?, Daily Journal, November 23, 2011
Co-author, California's cap and trade regulations: Maybe there's a future in cow flatulence after all, Daily Journal, November 15, 2011
Co-author, State's Greenhouse Gas Reduction Plan Dealt Setback, Daily Journal, April 5, 2011
Hodgepodge of Local Climate Laws Challenges Cos., Law 360, March 2009
Co-author, Emissions Trading Guidance Document For Trading In Oregon, Document for Oregon Economic Development Department and Department of Environmental Quality, 1994
Co-author, Coping with the South Coast Air Quality Management District's New `New Source Review' Rule, published in proceedings of the Air & Waste Management Association's 84th Annual Meeting, Vancouver, British Columbia, June 1991
Co-author, Facility Closures and Sales: Legal Requirements and Profit Opportunities, published for the International Congress on Hazardous Materials Management, June 1987
Author, Issues of Confidentiality and Disclosure in Environmental Auditing, prepared while on staff at U.S. EPA, Office of Planning, Policy & Evaluation, Regulatory Reform Staff, April 1984
Author, Emission Reduction Credits: Who Pays Just Compensation? A Takings Analyses, Student Paper, Northwestern School of Law of Lewis and Clark College, Spring 1982
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