Our partners have successfully defended some of the largest natural resource damages claims in the country, and our clients have secured landmark rulings rejecting aggressive efforts by contingency-fee private attorneys general to use NRD theories to secure billion dollar recoveries. Our work has involved litigated NRD claims arising from the Rio Grande in New Mexico to central South Carolina to the Amazon Basin in Ecuador. We also assist our clients in long-term planning in anticipation of potential NRD claims at CERCLA remediation sites.
Through our work on NRD matters, we have built longstanding relationships with leading experts in the fields of geology and hydrogeology, land and marine biology, toxicology, geochemistry, metallurgy, chemical fate and transport, and natural resource economics. We have successfully presented these experts’ testimony in court, and we have confronted the most aggressive NRD plaintiff experts in the country and secured exclusion of their expert testimony following extensive Daubert evidentiary hearings.
Our clients also have established important legal protections for NRD defendants through seminal rulings on CERCLA preemption, standing, the identification of protected resources, the proper measure of NRD damages, and restrictions against the payment of contingent-fee attorneys through NRD proceeds.
In addition to our work for individual clients, we have served for many years as faculty at legal education seminars on NRD issues, and Firm partner Donald Fowler has served as co-chair of an annual Law Seminars International NRD conference in Santa Fe, New Mexico. We also support defendants through publications on key defenses in NRD litigation.
DEFENDING THE BIGGEST CASES
Our clients repeatedly have relied upon us to defend them against the largest NRD claims in the country. Among our most significant representations, the Firm served as lead Daubert and appellate counsel in opposition to a $4 billion NRD claim brought by New Mexico’s attorney general for an alleged loss of drinking water in the Middle Rio Grande aquifer from a Superfund Site that was being successfully remediated under the supervision of the EPA and state regulators. The litigation culminated in more than fifty motions to clarify the state’s claims and set the stage for summary judgment and an extensive multi-week pretrial conference and evidentiary Daubert hearing. The district court issued a series of lengthy rulings dismissing all of the attorney general’s claims. See New Mexico v. Gen. Elec. Co., 322 F. Supp. 2d 1237 (D.N.M. 2004); New Mexico v. Gen. Elec. Co., 335 F. Supp.2d 1157 (D.N.M. 2003); New Mexico v. Gen. Elec. Co., 335 F. Supp.2d 1185 (D.N.M. 2004); New Mexico v. Gen. Elec. Co., 335 F. Supp.2d 1266 (D.N.M. 2004). Hollingsworth LLP attorneys then successfully defended the judgment on appeal. New Mexico v. Gen. Elec. Co., 467 F.3d 1233 (10th Cir. 2006). Our lawyers have served as lead counsel in defending a nine-figure NRD claim in the Virgin Islands, where we were able to build upon and clarify many of the principles established in the New Mexico litigation, including the limitation on permissible recovery by contingency-fee lawyers, as well as the distinction between claims that may be made by a sovereign under its parens patriae capacity as opposed to the statutory authority of the sovereign’s trustee for natural resources.
The Firm also successfully defended a $555 million parens patriae claim brought in federal district court in Washington, D.C. by three provincial governments in Ecuador for alleged natural resource and public health damages purportedly caused by aerial herbicide spraying of illicit coca crops in southern Colombia. The federal district court dismissed the government’s claims in their entirety for lack of standing and the dismissal was affirmed by the D.C. Circuit. See Arias v. DynCorp, 738 F. Supp. 2d 46 (D.D.C. 2010), aff’d, 752 F.3d 1011 (D.C. Cir. 2014).
Currently, the Firm is defending Sherwin-Williams in NRD litigation in New Jersey, arising from the same site at which we successfully defended a putative personal injury/property damages class action in 2018. In the class action, we secured a complete dismissal at the motion to dismiss stage without any discovery, and we built upon our success in the GE-New Mexico litigation in prevailing on preemption grounds. In the pending NRD case, the State of New Jersey is seeking primary and compensatory NRD for alleged discharges from historical manufacturing operations dating back more than 170 years. The trustees claim that wetlands, surface and ground waters, soils, sediments, biota, and air have been impacted by these alleged discharges and seek damages under various theories of liabilities under New Jersey statutory and common law.
In addition to defending NRD claims in court, we also help our clients prepare for potential NRD claims by working with regulatory counsel in connection with cooperative remediation operations and assembling teams of experts to assess potential past or ongoing impacts on natural resource services. We have done so at some of the largest, most complex federal Superfund and state sites in the country. In that process, we typically engage with trustees during the NRD Assessment process on behalf of our clients, providing input to the assessment studies, sometimes collaborating, and other times advising with respect to independent research efforts. While negotiated resolution is almost always the goal, preparation for litigation is a key driver of our approach.
We have also successfully resolved government CERCLA cost recovery actions that included NRD claims. For example, we were able to settle on favorable terms two cases brought by the State of South Carolina alleging CERCLA compensatory and NRD claims arising from chlorinated solvent contamination in groundwater. South Carolina Department of Health and Environmental Control v. Carolina Steel & Wire Corporation, et al., C.A. 3-00-1759 (D.S.C. 2000); South Carolina Department of Health and Environmental Control v. Western Atlas, Inc., C.A. 3-00-1760 (D.S.C. 2000).