Practice Areas

Environmental Law

Environmental issues have a central place in the public consciousness, the media and state, local and national politics. Real and perceived environmental threats from such diverse sources as landfills, factories, real estate developments, farms, energy generators and consumer products have produced laws and regulations at all levels of government and a proliferation of litigation over environmental liabilities. Moreover, since most environmental statutes now contain criminal sanctions, persons can be subject to criminal prosecution not only for contributing to pollution, but for failing to report pollution. Accordingly, our firm’s practice of environmental law encompasses an understanding of multiple sub-specialties, as well as skills in sophisticated litigation techniques, technical aspects of environmental sciences, corporate legal issues and criminal law and procedure. Consequently, attorneys with a keen, unbiased eye are required. Hobson Bernardino + Davis has those attorneys.

Our firm’s environmental practice is as broad and as deep as almost any environmental practice at any law firm in the United States. We represent corporations, developers and energy companies in cutting-edge environmental litigation and in solving complex regulatory and transactional issues. The firm regularly counsels clients on the environmental aspects of commercial and real estate transactions, provides regulatory advice and litigates matters under CERCLA and other environmental statutes. The attorneys of Hobson Bernardino + Davis practice, speak and write extensively on environmental issues. Among the types of environmental transactions engaged in by our attorneys are the following: negotiating and drafting tolling agreements, remediation agreements, licensing agreements, leases, lease amendments, indemnity agreements and access agreements; participating in development and financing/re-financing issues; responding to requests for information from governmental agencies and private parties; reviewing and analyzing claims from third parties affected by energy development or distribution; analyzing insurance issues and tender claims where applicable, and; interfacing with local, state and federal regulatory agencies. For ARCO alone, the firm’s attorneys have handled over one hundred transactions impacted by environmental concerns, ranging from purchase and sale of property to loan agreements. None of these transactional matters ever resulted in litigation, nor was ARCO ever fined or subject to any private or regulatory penalty.

The firm’s attorneys have a wealth of experience in federal and state enforcement cases (both civil and criminal), permitting and other administrative proceedings. For example, the firm’s attorneys have acted as lead defense counsel in a considerable amount of nationwide product liability litigation concerning allegedly hazardous materials. Environmental litigation has long been a hallmark of the firm’s attorneys and a prominent aspect of the firm’s environmental practice. Examples of recent environmental cases litigated by our attorneys include: ARCO adv. Douglass, Santa Barbara County Superior Court, defense verdict following 54 day jury trial on environmental torts; ARCO adv. Mitchell Land & Improvement Company, Riverside County Superior Court, nonsuit in favor of ARCO on disposal dispute; Koch Industries adv. Harms, Nueces County District Court, Texas, successful defense of environmental class action lawsuit resulting in de minimis settlement by Koch Industries; Koch Industries adv. OCI Superfund Site, United States District Court, W. D. Michigan, successful defense of “superfund” lawsuit resulting in de minimis settlement, and; In re OCI, United States District Court, Central District of California, successful defense of “superfund” lawsuit resulting in dismissal.

In sum, over the past twenty years, the firm’s attorneys have represented clients in all aspects of environmental law. The following is a brief synopsis of our attorneys’ environmental law experience:

1. Cost recovery litigation on behalf of both plaintiffs and defendants;
2. Hazardous waste cleanup compliance and counseling under CERCLA, RCRA, HSAA, Porter-Cologne and Polanco Redevelopment Act;
3. Litigation and counseling under the Federal Clean Water Act, Endangered Species Act, National Environmental Policy Act, Federal Power Act and California Environmental Quality Act;
4. Preparing, defending and challenging Environmental Impact Reports (EIR) and Environmental Impact Statements (EIS);
5. Underground storage tank litigation;
6. Litigation under the Federal Tort Claims Act and Fifth Amendment takings law;
7. Defense of Proposition 65 claims;
8. Defense of Business & Professions Code Section 17200 claims;
9. Insurance coverage of environmental cleanups;
10. Project permitting and transfer issues;
11. Assisting clients in preparing their Hazardous Materials Business Plan, Risk Management and Prevention Program, and other materials, in addition to developing an overall environmental compliance schedule;
12. Landfill projects, oily soil projects and similar projects under the supervision of Cal-EPA’s Department of Toxic Substances Control;
13. Advising clients on environmental requirements in storage tank removal and hazardous waste transportation;
14. Drafting and negotiating agreements for various matters such as removal, hazardous waste disposal and property access;
15. Assisting numerous companies, small, medium and large, with compliance requirements of Proposition 65;
16. Developing and conducting environmental audit programs;
17. Toxic tort litigation;
18. Developing procedures for emergency response to oils spills and participating in the emergency spill response;
19. Representing clients before the California Regional Water Quality Control Boards;
20. Representing underground storage tank owners before county and local agencies;
21. Counseling banking clients concerning contaminated property held as security and foreclosure, and counseling clients negotiating with banks and other lenders regarding environmental matters and due diligence;
22. Conducting environmental due diligence and drafting disclosure statements for SEC documents;
23. Conducting environmental due diligence for purposes of obtaining private financing;
24. Drafting and negotiating indemnity agreements;
25. Drafting and negotiating access agreements;
26. Drafting and negotiating remediation agreements;
27. Drafting and negotiating tolling agreements;
28. Drafting and negotiating “comfort” letters for use by borrowers and lenders;
29. Advising purchasers, sellers and lenders regarding the allocation and management of environmental risks in real property transactions;
30. Advising clients regarding sale of property with groundwater contamination;
31. Advising clients regarding sales of property with groundwater contamination migrating to or from neighboring property;
32. Advising clients regarding acquisition and sale of shopping centers with environmental issues relating to underground gasoline storage tanks;
33. Advising clients, including issuers, equity participants, and underwriters, in connection with corporate financing transactions and environmental diligence and disclosure pursuant to SEC requirements across a variety of industries, including petroleum, chemical, manufacturing, and electronics;
34. Representing clients in criminal proceedings before state and federal courts;
35. Counseling clients targeted by Grand Jury Investigation in various parts of the United States concerning alleged environmental violations;
36. Counseling clients and representing them in administrative proceedings with local fire and county health departments concerning the monitoring, upgrade and corrective action for underground storage tanks;
37. Defending against criminal actions alleging violations of air pollution control laws, illegal disposal of hazardous waste, and violation of occupational safety and health standards;
38. Pipeline litigation, including defense of class action litigation by fisherman, homeowners, and others arising out of pipeline spills;
39. Obtaining approval of numerous refinery and other oil industry projects from local and state environmental agencies;
40. Prosecuting and defending numerous private cost recovery actions by current and former property owners and tenants asserting claims for damage, and soil and groundwater contamination resulting from discharges of oil, petroleum products, and chemicals;
41. Prosecuting and defending lawsuits arising from leaking underground storage tanks;
42. Prosecuting claims against the California Underground Storage Tank Fund (the firm has previously recovered funds for our clients);
43. Representing potentially responsible parties at Superfund sites nationwide;
44. Prosecuting first-party and third-party claims against carriers under CGL policies for coverage for environmental losses (the firm does not represent any insurance company, and there has never been a conflict regarding such actions);
45. Defending against allegations arising from a major oil spill (the firm routinely represents a major oil company in an actions brought by the United States and the State of California); and
46. Advising clients in connection with environmental legislation, including the drafting of legislative positions.

The firm’s overriding philosophy is to provide our clients with cost-effective representation to navigate the sometimes complex system of state and federal regulations, to adequately assess the risks of a given situation, to minimize legal exposure for past practices and to maximize clients’ recovery against others who are responsible. Name partner, Rafael Bernardino, has unique experience representing several Fortune 500 companies in environmental law matters and has often defended and prosecuted CERCLA and RCRA lawsuits on behalf of small, medium and large businesses. This area of the firm’s practice involves representation of clients in negotiations, litigation and settlements on clean-up enforcement orders issued by state and federal environmental authorities and in cost recovery actions.