At Kelley Drye, we understand the political and practical challenges unique to public sector clients, and we work closely with our public clients to develop innovative solutions that address multifaceted concerns regarding regulatory compliance, operational issues, and crisis management assistance.
Kelley Drye has developed a deep understanding of the complex environment in which public sector clients operate, the details of their decision-making processes, and the myriad legal and policy factors that influence their litigation strategies. Representing public entities demands an understanding of the political and public relations issues public entities regularly face. We zealously guard our clients’ broader public interests in high-profile litigation, in appearances before other public bodies, and in doing business with the public. While our attorneys are aggressive litigators and shrewd negotiators, we are ever mindful of our clients’ public status and goals, which are often distinct from those of private entities.
We have been fortunate to help our public sector clients navigate difficult and incredibly complex environmental contamination cases of all kinds. In total, Kelley Drye’s public clients have recovered billions of dollars in remediation costs, property damages, natural resource damages, and lost tax revenues in a variety of complex environmental matters, and we have created the nation’s preeminent environmental practice group for states, attorneys general, and local governments. In doing so, we have been creative in our approach and tenacious in our efforts to get the best result for the public. In addition to traditional theories of liability in contamination cases, such as under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), and state law equivalents and common law claims, Kelley Drye also has pursued novel theories of liability including products liability.
Similarly, Kelley Drye’s environmental litigation group may have evaluated, prosecuted and/or resolved more environmental cost-recovery matters than any other law firm in the country. For almost 20 years, our lawyers served as co-national counsel for a tier-one railroad on hundreds of cost-recovery matters. Currently, the Firm is prosecuting cost-recovery and contribution claims under CERCLA and state equivalents for governmental entities, states, and energy-sector clients.
In short, we bring unique qualifications and experience to contamination of natural resources.
Environmental and Natural Resource Damages Matters
Kelley Drye lawyers are involved in many of the most complex Environmental Litigation and Natural Resource Damages matters in the country, often navigating a unique blend of state and federal environmental laws and regulations.
Kelley Drye is currently representing the State of New Mexico regarding the contamination of the Animas and San Juan Rivers resulting from the Gold King Mine disaster. Our lawyers previously served as Special Counsel to the Attorney General of New Jersey in litigation associated with the contamination of – and natural resource damages to – the Passaic River, one of the most significant and high-profile water pollution cases in the country. Kelley Drye’s lawyers also represented the State of Louisiana, the Jindal Administration, and the Louisiana Oil Spill Coordinator's Office (LOSCO) in assessing and responding to the unprecedented natural resource damages caused by the Deepwater Horizon Oil Spill in the Gulf of Mexico.
Representing governmental agencies, particularly in high stakes environmental matters, has provided our attorneys with a rare understanding of the diverse concerns and perspectives that influence complex environmental and natural resource damages litigation, and the rare perspective of trustee agencies.
Regulatory and Operational Issues
As part of our Public Sector and Government practice, Kelley Drye provides needed service and advice on the laws and regulations that apply to state, municipal and county operations, including permitting, contaminated site remediation, waste water and storm water management, environmental liability, and release reporting. We assist public sector clients in resolving regulatory and operational issues. Our regulatory representation spans a wide spectrum including advising clients on applicable law, guidance during spills or releases, and negotiations to resolve administrative and enforcement actions. Our attorneys have sustained experience in regulatory compliance, reporting and cleanup of contaminated sites, agency inspections and investigations, and similar issues. Our firm also evaluates permitting requirements and secures permits for air emissions, waste water discharges, and waste generation, storage and disposal.
Kelley Drye has perhaps the most sophisticated, experienced and successful public sector environmental practice in the country. For decades, our lawyers have successfully represented public entities—including states, local governments, and port authorities—in groundbreaking environmental and natural resource damages cases of all kinds.
The scope and breadth of our experience in representing states, public entities, and natural resource trustees in precedent-setting environmental and NRD matters set us apart and includes:
- Serving as Special Counsel to the Attorney General of New Jersey representing the New Jersey Department of Environmental Protection in a series of lawsuits related to per- and polyfluoroalkyl substances (PFAS) and other contamination at and from four separate industrial facilities owned and operated by DuPont and Chemours across New Jersey.
- Serving as lead counsel for the State of New Jersey in the Passaic River litigation, recovering over $355 million in damages, including $67.5 million in restoration projects, and up to $400 million more in remediation costs for the state. The Passaic River recovery is the largest settlement of its kind in the history of New Jersey.
- Representing the State of Louisiana and the Louisiana Oil Spill Coordinator's Office in the BP/Deepwater Horizon Oil Spill, including leading Jindal Administration efforts to identify and quantify billions of dollars in economic and natural resource damages to the State of Louisiana, all of which were ultimately recovered as part of a $20 billion global settlement, the largest environmental and natural resource damages recovery in history.
- Representing the Port of Houston Authority in asserting environmental cost recovery and natural resource damages claims against the former owners and operators of a pesticides plant that dumped DDT and various other pesticides and chemicals into the Houston Ship Channel for decades. Following three years of incredibly complex litigation, the defendants settled with the Port by paying for all of its costs and damages and dredging and disposing of all of the DDT-impacted sediments at issue, in all valued at over $100 million.
- Serving as Special Counsel to the Attorney General of Guam in bringing an action against the United States to require that the U.S. pay its fair share of remediation costs arising from decades of military operations on Guam. On May 24, 2021, Justice Clarence Thomas delivered a unanimous decision for the Supreme Court of the United States in the case of Territory of Guam v The United States, brought on behalf of Guam by Kelley Drye & Warren LLP. The Court found in favor of Guam, reversing a D.C. Circuit Court of Appeals decision and remanding the case to the district court for further proceedings.
- Serving as counsel to the Attorney General of the District of Columbia related to the investigation, remediation, and restoration of the Anacostia River following decades of contamination from military installations and industrial users.
- Serving as Special Counsel to the State of New Mexico and New Mexico Environment Department in seeking remediation, costs, and economic damages arising from the Gold King Mine blowout and decades of mining waste contamination of the Animas and San Juan Rivers, including an original action in the United States Supreme Court. This case is set for trial in February 2022.
- Representing the Commonwealth of Puerto Rico in seeking remediation costs and natural resource damages arising from island-wide methyl tertiary-butyl ether (MTBE) groundwater contamination in both multi-district litigation and trial sites in the District of Puerto Rico, recovering tens of millions of dollars to date.
- Representing the Port of Texas City in Oil Pollution Act and common law claims against various oil companies and refineries that had operated pipelines to the Port's docks for almost a century. As a result of negligent (or no) pipeline maintenance, the lines had leaked a wide variety of petroleum products under the surface of the Port's property, ultimately leaching vast quantities into Galveston Bay. Through a series of six confidential settlement agreements with all defendants, we recovered for the Port an eight-figure recovery, sufficient to pay all of the Port's costs and damages, all funds necessary for a complete remedy, including a new retaining wall and dock facility, to serve as a physical barrier to further hydrocarbon migration and protect the Bay, and to fund an environmental trust for any future issues.
- Representing the State of Ohio and Ohio Attorney General Dave Yost in litigation against DuPont and Chemours for decades-long discharges of perfluorooctanoic acid (PFOA) from the Washington Works plant in Parkersburg, West Virginia into Ohio, and seeking to recover all past and future costs to investigate, remediate, and restore lands and waters of Ohio contaminated by PFOA, as well as damages and equitable relief.
- Representing the State of North Carolina in bringing claims against DuPont and Chemours for PFAS contamination from their Fayetteville, North Carolina plant across a broad swath of the Cape Fear River and coastal North Carolina.
- Representing multiple states and sovereigns-currently including the State of New Jersey, the State of New Hampshire, the Commonwealth of the Northern Mariana Islands (CNMI), and the Government of Guam-in asserting claims against the product and component manufacturers of aqueous film-forming foam (AFFF) that contained PFAS. PFAS has contaminated vast quantities of drinking water and natural resources as a result of the use of AFFF.
- Representing the State of New Jersey in an action against the United States to compel its compliance with the Safe Drinking Water Act and comply with drinking water standards established by New Jersey for PFAS contamination in and around federal facilities in New Jersey.
- Representing dozens of water districts and local governments, including large water providers and systems such as Orange County and Miami-Dade, in asserting claims against the product and component manufacturers of AFFF and PFAS.
- Serving on the Plaintiffs Executive Committee and chairing the State Sovereign Committee in In Re: Aqueous Film-Forming Foams (AFFF) Products Liability Litigation, MDL No. 2:18-mn-2873-RMG, pending in the United States District Court for the District of South Carolina.
- Representing the San Diego Unified Port District in litigation against Monsanto seeking costs, injunctive relief and damages for navigational impacts and injuries to the natural resources of the San Diego Bay arising from bay-wide PCB contamination.
- Representing the State of Montana in asserting natural resource damages and remediation claims against W.R. Grace & Co. for asbestos contamination from the Libby Mine in Libby, Montana as the final claim in the W.R. Grace & Co. bankruptcy proceedings.