Samuel B. Boxerman
SAM BOXERMAN is a partner in the Environmental practice group who focuses on environmental civil litigation. Over the course of more than two decades, Sam has defended clients in environmental enforcement litigation brought by the United States, States and NGOs under the major federal environmental laws, including the Clean Air Act, Clean Water Act, CERCLA and RCRA, as well as in private party disputes concerning contaminated property. Sam also handles environmental regulatory litigation under the major environmental laws, including petitions for review of EPA rulemakings and litigation over wastewater discharge permits, and routinely counsels clients on environmental compliance issues. Sam also handles matters related to shale gas development and hydraulic fracturing, including assisting clients with comments on agency proposals, handling regulatory litigation, and writing amicus briefs.
Sam also has represented private and sovereign clients in investment treaty arbitrations before the International Center for the Settlement of Investment Disputes. He has been one of the leaders of the arbitration trial team for both government and private investor clients.
Representative cases pertaining to civil enforcement/rulemaking litigation, shale gas development, and international arbitrations include:
- United States v. Cinergy – Over seven years, represented utility in defense of $3 billion Clean Air Act enforcement litigation at six plants involving 20 coal-fired electric generating units. Conducted fact and expert discovery and briefed and argued multiple motions. Represented client at three trials, conducting fact and expert witness examinations. Remaining issues settled before a fourth trial.
- State ex rel. Morrison v. Beck Energy Corp. – Represented oil and gas trade association as amicus in support of a successful challenge to municipal laws that restricted the use of hydraulic fracturing. The Ohio Supreme Court held the local law conflicted with, and thus was preempted by, the state’s oil and gas law. In reaching this result, the Court adopted arguments that had been put forward in Sidley’s brief and the decision is likely to serve as important precedent in disputes raising similar issues in other states.
- Confidential client – Represented respondent government client in $500 million arbitration involving the investor’s alleged plan to develop a new gas-fired power plant. Conducted direct and cross examination of fact witnesses, including principal project developers. Tribunal ruled for client after two-week hearing based in significant part on testimony developed at the hearing.
Sam has been named to Best Lawyers every year since 2012 where he is described as “an outstanding attorney… [who] brings years of in-depth experience to all air quality related matters” and who provides “sound advice on regulatory matters.”
Sam joined Sidley in 1991 from the U.S. Department of Justice, where he was a trial attorney handling environmental litigation for the United States under CERCLA, RCRA, the Clean Air and Water Acts, and the Toxic Substances Control Act. While at DOJ, Sam also served as a Special Assistant U.S. Attorney prosecuting criminal matters in D.C. Superior Court. Upon graduating law school, Sam had served as a Law Clerk to the Hon. Bernard M. Decker, Senior U.S. District Judge, U.S. District Court for the Northern District of Illinois.
Selected representations include:
Civil Enforcement / Rulemaking Litigation
- Confidential Client – Representing client in connection with various matters arising out of the use of aggregate manufactured from coal ash, including challenging state and local laws restricting use, defending against citizen group’s allegations that use of the material is causing an endangerment under RCRA 7002, and challenging EPA’s Coal Combustion Residuals rule.
- Confidential Clients – Representing clients in connection with EPA investigation of claims alleging violations of New Source Review and other provisions of the Clean Air Act.
- United States v. Duke Energy – Represented client in connection with successful resolution of EPA and citizen group’s claims alleging violations of New Source Review provisions of the Clean Air Act.
- United States v. Continental Carbon Company – Represented client in connection with successful resolution of EPA and states’ claims alleging violations of New Source Review provisions of the Clean Air Act.
- In re Con-way Freight – Represented client and successfully reached administrative resolution of EPA investigation of compliance with RCRA waste management requirements in less than truckload shipping sector.
- Sacramento Regional County Sanitation District permit litigation – Represented Westlands Water District before Regional and State Water Board in hearings on the proposed Clean Water Act NPDES discharge permit and in resulting litigation over the final permit.
- W. Va. Highlands Conservancy Inc. v. Fund 8 Domestic LLC – Successfully obtained dismissal of Clean Water Act citizen’s suit alleging owner was discharging without a permit.
- Moapa Band of Paiutes v. EPA, WildEarth Guardians v. EPA, and Nevada Power v. EPA, – Represented Nevada Power in three petitions for review of EPA actions approving Nevada’s Regional Haze State Implementation Plan. EPA granted reconsideration of one rule in response to Nevada Power’s petition, the court of appeals adopted Nevada Power’s arguments and dismissed the second petition based on standing, and the last petition has been dismissed.
- United States v. IBP – Advised meat processor client on EPA investigation, defended resulting litigation, and after extensive discovery and summary judgment motion practice negotiated settlement under Clean Water Act, Clean Air Act, CERCLA, and RCRA with the federal and state governments regarding plants in four states.
- United States v. General Electric – Part of team that helped client respond to EPA investigation of past disposal practices at former manufacturing site and negotiated CERCLA settlement with DOJ and EPA regarding the Housatonic River Superfund Site. Led negotiations over the governments’ past cost claims, resulting in agreement to cap future costs to paid under settlement. Representing client on the implementation of decree, including dispute resolution proceedings over EPA cost claims.
- United States v. AEP – Represented utility client in EPA Clean Air Act enforcement action against electric utility involving PSD, NSPS, and non-attainment NSR issues. Responsible for developing expert testimony on selected issues.
- Blumenthal v. BFI – Defended RCRA 7002 citizen suit/state law tort suit brought against client landfill owner by neighboring landowner claiming landfill caused ground water contamination to encroach on and under the adjacent property resulting in alleged economic loss. Successfully won dismissal of all RCRA claims and after discovery, negotiated land swap to settle dispute. Also defended client landfill owner against neighbor’s challenge to owner’s novel use of recycled materials to cover buried materials.
Shale Gas Development
- Cooperstown Holstein v. Town of Middlefield and Norse Energy v. Town of Dryden – Represented oil and gas and industry trade associations as amici in litigation challenging municipal ordinances seeking to ban oil and gas development using hydraulic fracturing in New York.
- State of New York vs. United States Army Corps of Engineers - Represented oil and gas industry trade associations that sought to intervene on the side of the federal government in three lawsuits brought by the State of New York and citizens groups seeking to prevent the Delaware River Basin Commission from finalizing rules that would allow operators to explore for and use water to develop natural gas reserves located within the Basin in the Marcellus Shale.
- Robinson Township v. Commonwealth of Pennsylvania – Represented an oil and gas industry trade association as amicus curiae in litigation regarding the constitutionality of Pennsylvania Act 13 governing shale gas development in Pennsylvania.
- Providing counsel to clients and assisting with comments on a range of agency actions related to shale gas development, including, among others, the ongoing EPA study of the potential for environmental impacts to water from the use of hydraulic fracturing, EPA’s draft guidance on the use of diesel fuels in hydraulic fracturing, BLM leases and rulemaking, the State of New York’s Supplemental Generic EIS and ongoing rulemaking regarding hydraulic fracturing.
- Confidential Client – Defended respondent government in $500 million arbitration involving the investor’s plan to develop a coal mine and construct a coal-fired power plant. Led factual investigation on contractual matters and developed expert testimony on technical issues and claimed damages. Conducted direct and cross examination of fact and expert witnesses before the arbitration tribunal. Prevailed in large part after two week proceeding.
- Confidential Client – Represented investor client in $300 million arbitration involving the operation of a water concession. Conducted direct and cross examination of technical expert witnesses addressing alleged water contamination. Tribunal ruled for client after 12-day hearing.
- Confidential Client – Represented respondent government client in multi-billion dollar arbitration involving the investor’s alleged plan to develop a new city. Conducted direct and cross examination of expert witnesses addressing alleged damages. Tribunal ruled for client after two week hearing.
- Confidential Client – Representing investor client in multi-billion dollar arbitration arising out of the government respondent’s interference with the client’s sale of a financial institution. Conducted direct and cross examination of fact witnesses before the arbitration tribunal during a two week hearing.
Sam is one of the founding authors of The Sidley Shale and Hydraulic Fracturing Report which provides updates on the fast moving legal developments related to this emerging energy resource. Sam also regularly contributes to The Legal Pulse, a project of the Washington Legal Foundation that features commentary on legal and regulatory developments that impact the free enterprise system. Recent publications include:
- “Vigorous Dissent from Fifth Circuit’s Denial of Rehearing Should Help ESA Frog-Habitat Case Leap to Supreme Court,” The Legal Pulse (March 13, 2017)
- “Challenge to ‘two-for-one’ executive order raises questions about how the order will affect regulations,” Westlaw Journal Environmental (February 13, 2017)
- “No CERCLA “Arranger Liability” for Falling Air Emissions, Ninth Circuit Holds,” Washington Legal Foundation (August 10, 2016)
- “North Dakota First Petitioner to Challenge EPA’s Methane Rule,” The Legal Pulse, (July 25, 2016)
- “Supreme Court Observations: U. S. Army Corps of Engineers v. Hawkes, Co.,” The Legal Pulse, (June 7, 2016)
- “Federal Lawsuit Challenges Water-Resource Commission’s Authority over Natural Gas Exploration in Pennsylvania,” The Legal Pulse, (June 1, 2016)
- “Fracking: Latest Environmental Regulation Developments,” International Law Office: Environment & Climate Change - USA, (May 23, 2016)
- “Bureau of Land Management Proposes Rule on Oil/Gas Production on Federal Land,” The Legal Pulse, (January 25, 2016)
- “Fracking: SAB Panel Considers EPA Draft Report on Effects on Drinking Water,” International Law Office, (January 11, 2016)
- “District Court Enjoins Department of Interior Rule on Hydraulic Fracturing on Federal and Indian Lands,” The Legal Pulse, (October 5, 2015)
- “Citing State-Based Voluntary Conservation Efforts, Federal Court Strikes Down ESA Listing for Lesser Prairie Chicken,” The Legal Pulse, (September 14, 2015)
- “Supreme Court Observations: Michigan v. EPA,” The Legal Pulse, (June 30, 2015)
- “Ohio Court Embraces Use of Federal Solid Waste Disposal Law to Regulate Air Emissions,” The Legal Pulse, (April 10, 2015)
- “Mora County and Denton: Constitutional Challenges to Hydraulic Fracturing Bans,” Pratt's Energy Law Report, (March 2015)
- “Ohio Supreme Court Holds Municipal ‘Fracking’ Regulations Cannot Conflict with State Rules,” The Legal Pulse, (February 23, 2015)
- “Local ‘Fracking’ Bans Face Constitutional Taking Challenges,” The Legal Pulse, (November 24, 2014)
- “Federal Appeals Courts Reject Clean Water Act 'Permit Shield' Defense,” The Legal Pulse, (September 9, 2014)
- “Seventh Circuit Ruling Exposes Federal Regulators to Public Nuisance Claims,” The Legal Pulse, (August 7, 2014)
- “New York Court of Appeals Upholds Local Ordinances Restricting Hydraulic Fracturing,” The Legal Pulse, (June 30, 2014)
- “Supreme Court Observations: CTS Corp. v. Waldburger,” The Legal Pulse, (June 11, 2014)
- “EPA Seeks Input on Regulating Hydraulic Fracturing Fluids under Toxic Substances Control Act,” The Legal Pulse, (May 15, 2014)
- “EPA and the Army Corps’ “Waters of the U.S.” Proposal: Will it Initiate Regulatory Overflow?,” The Legal Pulse, (April 8, 2014)
- “Department of Energy Task Force Issues Report on FracFocus,” The Legal Pulse, (March 12, 2014)
- “EPA Releases Final Guidance for the Use of Diesel Fuels in Hydraulic Fracturing,” The Legal Pulse, (February 26, 2014)
- “Will Pennsylvania High Court’s Ruling Expose State’s Hydraulic Fracturing Rules to “Public Trust” Challenges?” The Legal Pulse, (February 12, 2014)
- “Hydraulic fracturing regulation in the US: 2013 update,” Practice Law Company, (January 2014)
- “Don’t Believe The Hype: Federal Agencies Are “All Over” Hydraulic Fracturing,” Legal Backgrounder, (November 15, 2013)
- “Looking Ahead to 2013–2014 in Environment and Energy in Congress and at EPA,” Associated General Contractors of America, AGC Environmental Forum, (June 12, 2013)
- “Hot Topics in Environmental/Real Property Law: Land Use, Fracking and Climate Change,” ABA Young Leadership Division Spring Conference, (May 17, 2013)
- “Freezing Fracking: The Legal Implications of Bans and Moratoria on Hydraulic Fracturing,” ABA Section of Environment, Energy, and Resources’ 42nd Annual Spring Conference, (March 21–23, 2013)
- “Hydraulic Fracturing Law in the US,” Practical Law Company, (October 2012)
- Sam has been a Professional Lecturer in Law at the George Washington University School of Law for more than ten years.
- Pratt’s Energy Law Report, Board of Editors
- Capital Camps and Retreat Center, Member of Board of Directors, Past Board Chair
- University of Illinois, Illinois in Washington Program, Chair of Advisory Board
In 2009, Sam received the Outstanding Achievement Award for Fair Housing from the Washington Lawyers’ Committee.
- “Executive Orders: What They Mean for Environmental Regulation,” Sidley webinar (March 7, 2017)
- “What Will the New Administration Mean for the Energy Industry and Public Power?” American Public Power Association’s 2017 CEO Roundtable (February 13, 2017)
- “CCRs and the CCR Rule – Legislation and Litigation,” Electric Utility Environmental Conference (February 9, 2017)
- “AES Puerto Rico Litigation,” American Coal Ash Association 2017 Winter Meeting (January 25, 2017)
- “Coal Ash – A Regulatory and Litigation Update.” Panelist, 2015 Energy, Utility & Environment Conference Panel (February 16–18, 2015)
- “Hydraulic Fracturing – Regulations and Risks for Realtors.” Speaker, which was part of the two-hour session entitled “Maneuvering the Slippery Slopes of Environmental Pitfalls: Risk Management & License Law.” Realtors Conference & Expo (November 7–10, 2014)
- Hydraulic Fracturing: Regulations and Risks.” 2014 National Land Conference, REALTORS® Land Institute (March 12–14, 2014)
- “U.S. Shale Gas Exploration and Development – A Regulatory Framework.” Presenter, U.S.-China Shale Gas Training Program Workshop Number 2: Environment, Health and Safety (July 24–25, 2013)
- “Hydraulic Fracturing and Local Regulations: Leveraging State Preemption, Addressing Fracking Risks and Navigating Zoning Challenges.” Presenter, Strafford webinar/teleconference (July 11, 2013)
- “Looking Ahead to 2013–2014 in Environment and Energy in Congress and at EPA.” Associated General Contractors of America, AGC Environmental Forum, (June 12, 2013)
- “Hot Topics in Environmental/Real Property Law: Land Use, Fracking and Climate Change.” ABA Young Leadership Division Spring Conference, (May 17, 2013)
- “Freezing Fracking: The Legal Implications of Bans and Moratoria on Hydraulic Fracturing.” ABA Section of Environment, Energy, and Resources’ 42nd Annual Spring Conference, (March 21–23, 2013)
- “Hydraulic Fracturing Law in the US.” Practical Law Company, (October 2012)