Appellate Litigation

Our record of success as appellate advocates includes the following reported decisions:

• We convinced a federal appeals court to uphold a district court ruling that our client was a foreign sovereign that was immune from suit in U.S. courts despite arguments that our client's operation of a hydro power system caused direct economic effects in the U.S. California v. NRG Energy, Inc. (9th Cir. 2004).

• In a ruling hailed in a lead editorial in The Wall Street Journal, the Firm convinced the D.C. Circuit to vacate U.S. EPA's effort to flout best available science in setting standards for assessing cancer health risk. Chlorine Chemistry Council v. EPA, 206 F.3d 1286 (D.C. Cir. 2000).

• In a case involving one of the cornerstones of the RCRA hazardous waste program, the definition of solid waste, we successfully briefed and argued a challenge to U.S. EPA's expansion of its regulatory authority over mineral processing materials that were not "discarded" and thus not "solid waste." Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000).

• We successfully defended MACT emission limits for medical waste incinerators against attacks by environmental groups in Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999).

• We won a ruling from the highest court in Massachusetts ordering carriers to reimburse policy holders for the costs of defending thousands of asbestos cases. Simplex Technologies v. Liberty Mutual, 706 N.E.2d 1135 (Mass. 1999).

• We helped secure the U.S. Supreme Court's extension of the right to trial by jury to claims of unconstitutional takings under Section 1983 of the Civil Rights Act of 1866. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).

• We convinced the D.C. Circuit to strike down the effort by the Corps of Engineers and U.S. EPA to vastly expand their authority over wetlands (via the Tulloch Rule) in National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998).

• We defeated at trial and on appeal New York State's lawsuit alleging threats to public health from the alleged contamination of a Long Island aquifer by a herbicidal byproduct. State of New York v. v. Fermenta ASC Corp., 656 N.Y.S.2d 342 (App. Div. 1997).

• We defeated a challenge to an innovative multi-site hazardous waste delisting that our client had obtained under RCRA in Horsehead Resource Development Co. v. EPA, No. 95-1286 (D.C. Cir. 1997).

• We participated in the challenge to the natural resources damages regulations issued by the Department of the Interior. Kennecott Utah Copper Corp. v. USDOI, 88 F.3d 1191 (D.C. Cir. 1996).

• In a major Title V case after the 1990 amendments, the Firm defeated U.S. EPA's "potential to emit" rule under Title V of the Clean Air Act in Clean Air Implementation Project v. EPA, No. 92-1303 (D.C. Cir. 1995).

• In Solite Corp. v. EPA, 952 F.2d (D.C. Cir. 1991) and Mobil Oil Corp. v. EPA, 35 F.3d 579 (D.C. Cir. 1994), we prevailed in challenges to U.S. EPA's "Bevill mixture rule" that U.S. EPA had imposed on the mining industry.

• The Firm narrowed the parameters of owner/operator liability under CERCLA in Long Beach Unified School District v. Godwin Living Trust, 32 F.3d 1364 (9th Cir. 1994).

• We helped shorten the statute of limitations for enforcement of civil fines under TSCA in 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994).

• We won an important Ninth Circuit decision narrowing the scope of the ESA and protecting the ability to sell property containing protected habitats in Marin Audubon Society v. FDIC, 999 F.2d 543 (9th Cir. 1993).

• We defeated U.S. EPA's attempt to impose in a NPDES permit water quality standards at the point of discharge rather than at the edge of the appropriate mixing zone. Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73 (1st Cir. 1993).

• Beveridge & Diamond successfully defended the dismissal of a challenge to the exchange of a conservation easement for a patent to mine coal. Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir. 1992).

• We blocked U.S. EPA's application of the hazardous waste toxicity characteristic test to mineral processing wastes in Edison Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993).

• We maintained the household waste exclusion under RCRA for municipal incinerator ash in Environmental Defense Fund v. Wheelabrator Technologies, Inc., 931 F.2d 211 (2d Cir. 1991).

• Beveridge & Diamond has briefed and argued numerous judicial challenges to the major RCRA rule makings, extending back to the Firm's extensive involvement in the successful challenge to the mixture and derived-from rules in the major RCRA decision of Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1990).

• We were the first law firm to successfully challenge U.S. EPA's decision to list a waste as hazardous under RCRA in American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990).