We have significant experience in representing our port industry clients in environmental and land use For almost 25 years, Kelley Drye’s port industry team has provided creative counsel to help solve port clients’ complex legal and business challenges. Our significant experience representing port industry clients as outside counsel, as well as serving as “in-house” general counsel for more than 20 years, has given us tremendous insight into the issues impacting ports.
For two decades, our lawyers have been active members in the American Association of Port Authorities, the Gulf Ports Association, and state port associations, such as the Texas Ports Association and the Ports Association of Louisiana, so that we can better understand the business of ports. We regularly present on matters impacting ports in fields including environmental, dredging and navigation, energy, insurance, trade and litigation. We have been representing ports in almost every conceivable transaction and dozens of litigation matters, ranging from condemnation and incredibly complex environmental matters down to simple breach of contract or personal injury matters. Through it all, we have endeavored to learn the business of our port clients so that we can better serve them.
Environmental and Land Use Matters
Contaminated Sediments and Natural Resource Damages
At Kelley Drye, we represent port industry clients in environmental matters across the country. Through extensive work with ports, maritime terminal operators, and other transportation-sector clients, on some of the country’s largest harbors, bays, and river systems, we have developed a unique capacity to handle complex contamination and natural resource damages (NRD) matters. These claims may encompass injuries to bays, rivers, and other surface waters; wetlands, sediments, and soil; groundwater; wildlife, fish, birds, and other biota associated with hazardous substances and environmental degradation, as well as the economic consequences of such injuries. Thus, injuries to natural resources can have a substantial impact upon ports, the channels of commerce, and the public, and claims for such damages can be truly significant.
Through handling multiple, significant contaminated sediment and NRD claims across the country, our attorneys have gained the insight, knowledge, and experience necessary to provide our clients with exceptional service and counsel at these very complex sites. We routinely work with many of the country’s preeminent experts in a variety of disciplines involved in contaminated sediment and NRD assessment and damages matters. Moreover, our representation of state trustees, port authorities, and the regulated community allows us an uncommon perspective on how such matters can be successfully prosecuted and resolved.
Port-Related Environmental Litigation
Kelley Drye’s environmental litigation team has experience representing clients in prosecuting and defending a wide variety of environmental actions, including cost recovery actions, contribution actions, CERCLA, RCRA, CWA and OPA litigation, tort and property damage litigation, natural resource damages assessment and litigation, and many other matters relating to contaminated and impaired real property. We also regularly deal with sediment and dredge material issues affecting ports and maritime terminal operators.
In addition, corporate responsibility for historical environmental issues is often a key issue in environmental litigation. In conjunction with our corporate and environmental, social, and governance (ESG) practice groups, we have extensive experience in tracing corporate ownership and liabilities to the responsible party (and their insurers) and pursuing or defending against such claims. Similarly, expert witnesses are an essential component of any environmental case, and port environmental cases are no different. Through decades of practice and educational backgrounds in government, earth sciences, economics, ecology, and the social sciences, our attorneys are able to work at a very high level of cooperation and understanding with expert environmental, technical, and economic witnesses.
Port Environmental Regulatory and Land Use
Regulatory proceedings are often precursors to or components of environmental litigation. Our attorneys have the practical and technical experience necessary to achieve our port industry clients’ goals within the regulatory process, whether those goals are reducing or recovering the cost of remediation, meeting regulatory and reporting requirements, including counseling on ESG issues, responding to spills or agency investigations, or proving responsibility for a release. We work with our clients, as well as other responsible parties and governmental agencies, to achieve practical solutions to environmental problems within the regulatory process or to best position our clients in the event of future litigation.
In addition to representing port industry clients in environmental regulatory and litigation matters, our attorneys also assist clients in efforts to limit or avoid exposure to environmental problems. Because our attorneys regularly litigate environmental matters, we see firsthand the issues that could be avoided or mitigated with proper environmental risk management and due diligence. We work with our clients to develop and implement contractual and regulatory safeguards to environmental issues, including environmental indemnities and warranties, cleanup and remediation agreements and environmental insurance, as well as identifying opportunities to participate in programs offering tax incentives, such as state voluntary cleanup programs and federal Brownfields initiatives.
Port-Related General Counsel Work
For two decades, our attorneys have counseled our port industry clients in day-to-day operations, serving as functional “in-house” counsel for one of our port clients on a flat-fee arrangement. Through this arrangement, we have charged a monthly flat-fee and have handled any and all routine business and transactional matters. If a litigation matter arises, or another matter that involves extraordinary effort, we will open that as a separate matter. But, as a result of this relationship, we have incredible insight and experience in port-related transactional matters and operations. Likewise, we have represented port industry clients in a broad range of commercial and construction disputes, maritime collision matters, tariff interpretations and enforcement matters, issues affecting dredging and dredge material management, lease and easement negotiations and litigation, and emergency response and security measures. These matters require specialized knowledge of port operations, maritime law and waterfront terminal regulations that our attorneys possess.
Port-Related Policy Work
Our team represents port industry clients and waterways in obtaining authorizations and appropriations for work within federal waterways under the jurisdiction of the Army Corps of Engineers. Our advocacy work starts at the District level, extends through the Division level and includes conversations with Corps Headquarters and the Assistant Secretary of the Army for Civil Works. We have also worked with the Office of Management and Budget in order to obtain authority or support for funding port industry projects. Our Washington team also routinely works with the Congressional authorizers and appropriators for both the Army Corps of Engineers and the Coast Guard.