Environmental Appeals


Environmental regulation at the federal and state levels extends to every aspect of business. Although Sidley always prioritizes a favorable outcome at the administrative or judicial level, the firm’s Environmental lawyers take an unparalleled approach toward obtaining the most successful results when it becomes necessary to challenge an agency rule or appeal a lower court ruling.

Our environmental appeals team brings value to our clients in the following ways:

  • In approaching environmental appeals of rulemakings, we harness the value of our team’s talented practitioners who possess experience in regulatory issues under every federal statutory scheme in the environmental area.
  • Our ability to draw on the resources of colleagues from Sidley’s leading Appellate practice ensures that the presentation before the court reviewing agency rules represents the deepest substantive experience and the best possible appellate strategy.
  • The firm is also home to experienced advocates who have appeared before the Supreme Court and all of the federal courts of appeals. Our approach to appeals of lower court rulings similarly reflects the deep experience Sidley lawyers have in appellate advocacy at the highest levels.
  • In recent years, our lawyers have taken the lead role in litigating challenges to many of the significant environmental regulations that have been heard in federal circuit courts of appeals, including the D.C. Circuit, the most frequent forum for litigating federal agency rules, as well as in the Supreme Court.
  • Our lawyers have also been integral to appeals of lower court rulings in many environmental matters, including all three of the climate-change tort cases, one of which yielded a key Supreme Court decision in our clients’ favor.

Representative matters

Recent environmental appeals handled by our lawyers in the federal circuit courts and U.S. Supreme Court include:

  • A favorable decision for Luminant Generation Company from the U.S. Court of Appeals for the D.C. Circuit (the Court) that The Washington Post described as “a major victory for utilities and business groups.”
  • A significant victory in the Court for Cummins Inc., which challenged an interim final rule issued by the U.S. Environmental Protection Agency (EPA) without notice and comment. In a strongly worded opinion, the Court struck down the interim final rule for lack of “good cause” under the Administrative Procedure Act.
  • A favorable ruling for the Portland Cement Association before the Court, which found that strict air emission standards promulgated for the industry were arbitrary and capricious, remanding the standards back to the EPA. The opinion was a rare decision in favor of an industry petitioner on so-called “National Emission Standards for Hazardous Air Pollutants.”
  • Several states, the City of New York and land trusts brought a suit against four utilities and the Tennessee Valley Authority. With Sidley as lead counsel, the defendants appealed to the U.S. Supreme Court, which issued an 8-0 decision authored by Justice Ruth Bader Ginsburg and reversed the Second Circuit. The leading Supreme Court blog called this litigation “the biggest-ever case on the issue of global warming.”
  • The successful representation of several utility companies, including Duke Energy Corporation and AEP, in opposing plaintiffs’ mandamus petition to the U.S. Supreme Court and had the case dismissed both in the district court where it was re-filed and in the Fifth Circuit in May 2013.

Our team

Sidley’s environmental appeals lawyers have the experience and the depth to handle the most complicated matters arising under environmental and natural resources laws. When it becomes necessary to challenge an agency rule or appeal a lower court ruling, we draw upon the many resources of the firm as a whole to develop an unequalled approach that delivers powerful results when and where our clients need them most.

Environmental regulation at the federal and state levels extends to every aspect of business. Although Sidley always prioritizes a favorable outcome at the administrative or judicial level, the firm’s Environmental lawyers take an unparalleled approach toward obtaining the most successful results when it becomes necessary to challenge an agency rule or appeal a lower court ruling.

Our environmental appeals team brings value to our clients in the following ways:

  • In approaching environmental appeals of rulemakings, we harness the value of our team’s talented practitioners who possess experience in regulatory issues under every federal statutory scheme in the environmental area.
  • Our ability to draw on the resources of colleagues from Sidley’s leading Appellate practice ensures that the presentation before the court reviewing agency rules represents the deepest substantive experience and the best possible appellate strategy.
  • The firm is also home to experienced advocates who have appeared before the Supreme Court and all of the federal courts of appeals. Our approach to appeals of lower court rulings similarly reflects the deep experience Sidley lawyers have in appellate advocacy at the highest levels.
  • In recent years, our lawyers have taken the lead role in litigating challenges to many of the significant environmental regulations that have been heard in federal circuit courts of appeals, including the D.C. Circuit, the most frequent forum for litigating federal agency rules, as well as in the Supreme Court.
  • Our lawyers have also been integral to appeals of lower court rulings in many environmental matters, including all three of the climate-change tort cases, one of which yielded a key Supreme Court decision in our clients’ favor.

Representative matters

Recent environmental appeals handled by our lawyers in the federal circuit courts and U.S. Supreme Court include:

  • A favorable decision for Luminant Generation Company from the U.S. Court of Appeals for the D.C. Circuit (the Court) that The Washington Post described as “a major victory for utilities and business groups.”
  • A significant victory in the Court for Cummins Inc., which challenged an interim final rule issued by the U.S. Environmental Protection Agency (EPA) without notice and comment. In a strongly worded opinion, the Court struck down the interim final rule for lack of “good cause” under the Administrative Procedure Act.
  • A favorable ruling for the Portland Cement Association before the Court, which found that strict air emission standards promulgated for the industry were arbitrary and capricious, remanding the standards back to the EPA. The opinion was a rare decision in favor of an industry petitioner on so-called “National Emission Standards for Hazardous Air Pollutants.”
  • Several states, the City of New York and land trusts brought a suit against four utilities and the Tennessee Valley Authority. With Sidley as lead counsel, the defendants appealed to the U.S. Supreme Court, which issued an 8-0 decision authored by Justice Ruth Bader Ginsburg and reversed the Second Circuit. The leading Supreme Court blog called this litigation “the biggest-ever case on the issue of global warming.”
  • The successful representation of several utility companies, including Duke Energy Corporation and AEP, in opposing plaintiffs’ mandamus petition to the U.S. Supreme Court and had the case dismissed both in the district court where it was re-filed and in the Fifth Circuit in May 2013.

Our team

Sidley’s environmental appeals lawyers have the experience and the depth to handle the most complicated matters arising under environmental and natural resources laws. When it becomes necessary to challenge an agency rule or appeal a lower court ruling, we draw upon the many resources of the firm as a whole to develop an unequalled approach that delivers powerful results when and where our clients need them most.

Experience
  • Summit Petroleum Corporation v. United States Environmental Protection Agency, et al. (6th Cir.). On behalf of the American Petroleum Institute (API), Sidley drafted an amicus brief in support of Summit Petroleum Corporation, a Michigan gas company. The brief significantly contributed to Summit’s victory in a high-profile environmental case recently decided by the U.S. Court of Appeals for the Sixth Circuit. Summit challenged an EPA source determination requiring the company to obtain a Title V operating permit under the Clean Air Act. Despite the high deference paid to an agency interpretation of its own regulations, the Court held that the EPA’s analysis of the “functional interrelationships” between the company’s gas processing plant and its gas wells, located several miles away, was prohibited when considering whether they were “adjacent” to one another, as required by EPA regulations. EPA’s “functional interrelationships” test was more than 30 years old but had never before been reviewed by any court. The Sixth Circuit’s opinion included a section detailing how its “decision finds support in many of the arguments raised in the brief of Amicus API.” EPA’s rehearing petition is pending.
  • Native Village of Kivalina, et al. v. ExxonMobil Corporation, et al. (N.D. Cal.). In a second case, claims were brought under federal common law in the Northern District of California by the Alaskan Village of Kivalina against a variety of energy companies alleging that their GHG emissions are causing or threatening harm. Sidley represented AEP and Duke in this case. The case was dismissed by the district court on standing and political question grounds. In September 2012, the Ninth Circuit ruled in the defendant’s favor, and it subsequently denied plaintiffs’ petition for rehearing; recently The Supreme Court denied certiorari.
  • Alec L. et al. v. Jackson et al. (D.D.C.). In another first impression common law case, an NGO filed suit on behalf of teenagers against six federal agencies claiming that the “public trust doctrine” requires that the federal government drastically reduce GHG emissions from U.S. businesses. Sidley is representing the National Association of Manufacturers (NAM) in this precedent-setting case as an intervener-defendant. Recently the district court granted our motion to dismiss the case, as well as the federal governments and the defendants. The plaintiff recently appealed to the D.C. Circuit where we represent NAM in the briefing.
  • WEC v. Asmundson (9th Cir.). Sidley had submitted an amicus brief on behalf of AFPM addressing standing issues that were not raised in the district court but that Sidley raised which explained why the NGO plaintiffs failed to demonstrate Article III standing and, in particular, due to the global nature of greenhouse gas emissions, a favorable decision would not redress the NGO’s claims in the case. The 9th Circuit issued a decision in favor of WEC in October of 2013, accepting AFPM’s arguments.
  • Serra Club v. Bostick (10th Cir.). A case involving the National Environmental Policy Act and the Clean Water Act, a panel of the U.S. Court of Appeals for the Tenth Circuit affirmed the denial of a preliminary injunction sought by the Sierra Club to halt construction of the Gulf Coast Pipeline by firm client TransCanada. The appellate court’s ruling was largely based on the lack of irreparable harm to the company that an injunction would have caused.
News & Insights