Environmental Litigation

Litigating NEPA and Other Environmental Review Laws: We have extensive experience litigating claims arising from federal and state agency environmental reviews, including:

• The firm successfully represented Eagle County in Colorado at the D.C. Circuit Court of Appeals in challenging the Surface Transportation Board’s approval of a new 88-mile railway under NEPA, NHPA and the Endangered Species Act, resulting in vacatur of the Board’s authorization and environmental review of the railway.
• Our team successfully represented the City of Albuquerque in defending federal approval of a bus rapid transit project on Route 66 against NEPA and NHPA claims, including defeating requests for emergency injunctions at both the district court and Tenth Circuit Court of Appeals. Coalition to Make Art Smart v. Federal Transit Administration (D.N.M. July 29, 2016), aff’d 843 F.3d 886 (10th Cir. 2016).
• We represented the City of Los Angeles at the Ninth Circuit Court of Appeals in successfully challenging the Federal Aviation Administration’s failure to conduct an environmental review before changing flight procedures over the City, and we also prevailed in obtaining a writ of mandamus to force the agency’s compliance with the Ninth Circuit’s decision.
• Members of the Kaplan Kirsch team have successfully challenged Army Corps of Engineers projects on Virginia’s James River for failure to comply with NEPA and Section 110(f) of the NHPA – the first (and still only) successful claim under Section 110(f) in the 40-year history of the statute. National Parks Conservation Association v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019).
• Firm attorneys successfully defended a 315-megawatt wind project located on federal land against a series of challenges under NEPA, the California Environmental Quality Act (CEQA), and the NHPA, among other statutes. Quechan v. United States Department of the Interior, 927 F. Supp. 2d 921 (S.D. Cal 2013), aff’d 673 F. App’x 709 (9th Cir. 2016).
• Our team prevailed in Redding Rancheria v. City of Redding, CEQA litigation venued in California state court arising from a $600 million resort development.

Litigating Natural Resources and Water Supply Disputes:  We counsel clients in high stakes natural resources litigation, including contentious disputes over western water resources:

• We represented the joint powers agency charged with overseeing the operations and infrastructure of the Friant Division of the Central Valley Project in multiple federal and state cases involving NEPA, the Endangered Species Act, federal Reclamation law, CEQA, and federal contract claims arising from long-term joint operation of the Central Valley Project and the California State Water Project.
• Kaplan Kirsch represented one of California’s largest water storage districts in a multi-party dispute arising from subsidence damage to a 152-mile aqueduct serving agricultural operations valued at $10 billion per year.
• The firm represented a project developer for a temporary work of art on BLM land in Colorado, including defending the environmental review process for state and federal permits in parallel state and federal proceedings under FLPMA and NEPA. Rags Over the Arkansas River, Inc. v. BLM, (D. Colo. 2015); Rags Over the Arkansas River, Inc. v. Colo. Parks & Wildlife Bd., 360 P.3d 186 (Colo. App. 2015).
• Our team has extensive experience litigating CWA issues, including in litigation regarding the United States Army Corps of Engineers permitting decisions for water projects. Georgia River Network v. U.S. Army Corps of Engineers, 517 Fed. Appx. 699 (11th Cir. 2013).

Addressing Emerging Contaminants and other Hazardous Wastes:  We litigate claims and disputes arising under federal and state hazardous and solid waste laws, as well as cost recovery suits. We counsel clients on how to strategically defend themselves in matters involving emerging contaminants such as PFAS, perchlorate, hexavalent chromium, 1,2,3-TCP and 1,4-dioxane. Firm attorneys have deep and varied experience in these areas, which includes representing:

• The California Attorney General’s Office on behalf of the California Department of Toxic Substances Control in connection with four lawsuits under RCRA and CERCLA regarding hazardous waste disposal facilities, with hundreds of millions of dollars at stake.
• The County of San Bernardino and a number of other parties in major CERCLA cost recovery litigation concerning emerging and other contaminants, including a settlement that secured precedent-setting contribution protections for clients over the objections of non-settling parties.
• Multiple state agencies in state court litigation concerning the Leviathan Mine Superfund site; after prevailing on key motions, we negotiated a favorable settlement shortly after the start of the jury trial.

Protecting Clean Air and a Sustainable Climate: Firm attorneys represented municipal clients and public interest organizations in addressing unhealthy air quality, environmental justice and climate change issues, including:

• An environmental public interest organization seeking to defend Pennsylvania’s participation in the Regional Greenhouse Gas Initiative, a regional cap-and-invest program that will reduce greenhouse gas emissions and increase investments in Pennsylvania’s clean energy future.
• A national public interest group to address air pollution from a foundry in a San Francisco Bay Area environmental justice community and to secure improvements in the local air district’s rules on community engagement, transparency and enforcement.
• Several public interest organizations in a series of lawsuits defeating challenges to Colorado regulations designed to reduce emissions from oil and gas operations.
• A coalition of national and local public interest organizations defeating a challenge to the Colorado regulation designed to increase the number of required sales of zero-emission vehicles by automobile manufacturers.
• A coalition of environmental organizations in successfully defending Colorado’s Regional Haze State Implementation Plan in state court. Colorado Mining Association v. Urbina, 318 P.3d 562 (Colo. App. 2013).

Engaging in Impactful Environmental Litigation: We frequently participate in high-profile environmental litigation on behalf of a diverse range of clients, including submitting amicus briefs to provide the courts with our clients’ perspectives on cutting-edge issues such as:

• Presidential authority to designate a marine national monument. Massachusetts Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019).
• Jurisdiction over state law claims for damages related to fossil fuel sales. Boulder County v. Suncor, 965 F.3d 792 (10th Cir. 2020).
• The authority of the U.S. Environmental Protection Agency to issue regulations limiting the use of scientific data in environmental rulemaking. Environmental Defense Fund v. EPA, Nos. 21-cv-03 (D. Mont. 2021).
• The requirement to analyze downstream greenhouse gas impacts for the largest offshore oil lease sale in U.S. history. Friends of the Earth v. Haaland, 22-5036, 22-5037 (D.C. Cir. 2023).