Air Quality Practice Group, Bracewell & Giuliani Lawyers

Bracewell & Giuliani’s air quality team works with key business leaders, environmental regulators, and federal and state policymakers in virtually every aspect of air quality issues. We represent and counsel companies nationwide in key sectors of the economy such as oil and gas, refining, cement, construction, power generation and transmission, chemicals, manufacturing, mining and technology. Recognized by Chambers, a leading legal ranking service, for our "considerable expertise in air matters," our prominent air practice includes a number of senior attorneys with top-level environmental experience gained from senior government regulatory and enforcement positions and in private practice.

Our air team includes:

Jeffrey R. Holmstead, who leads the firm’s Environmental Strategies Group, was the longest-serving Assistant Administrator for air and radiation at the United States Environmental Protection Agency (EPA). One of the nation’s preeminent air-quality lawyers, he was a key architect of several major national environmental initiatives, including the Clean Air Interstate Rule, the Clean Air Diesel Rule, the mercury rule for power plants, reforms to the New Source Review (NSR) program and the Clear Skies Legislation of President George W. Bush. Chambers describes him as "one of the very best air lawyers in the USA and a major player in the regulatory and legislative world."
Lisa Jaeger, who served as Acting General Counsel and Deputy General Counsel of the EPA, oversaw all legal matters before the agency. She advised the EPA administrator on the full range of environmental issues, including air, water, waste, and pesticide and toxics issues.
Richard Alonso, the former Chief of the Stationary Enforcement Branch at EPA’s Office of Enforcement and Compliance Assurance where he managed and negotiated Clean Air Act enforcement cases involving issues of national significance representing billions of dollars in injunctive relief, including the New Source Review coal-fired power plant enforcement initiative.
Rebecca Rentz, the former Houston Air Quality Director and Counsel to the Executive Director of the Texas Commission on Environmental Quality where she had significant responsibilities to air toxics, ozone and other air quality issues affecting Texas and its Gulf Coast region.

Bracewell’s environmental practice and attorneys have been recognized by clients and organizations in the United States and abroad, including Chambers and Practical Law Company, for the high quality of their client work. Our lawyers are also go-to sources for commentary on complex air and climate change issues for media authorities such as the New York Times, Wall Street Journal, Financial Times, Washington Post, NPR and the trade press.

Air Quality and Clean Air Act Experience

In some cases, companies require high-level guidance and counseling to help them understand the impacts of and/or shape Clean Air Act policy shifts to meet their business strategy. In other cases, clients need targeted advice to assist in specific compliance or enforcement questions. As represented below, our team has experience confronting the full range of air quality issues that confront every sector of the economy.

Clean Air Act Compliance Counseling, Applicability Determinations and Strategy. Bracewell has a strong reputation with federal and state environmental regulatory agencies on Clean Air Act matters. We work with clients to address both the practical compliance questions as well as assist senior corporate leaders in shaping complex policy and developing strategic initiatives. We are well-versed in all Clean Air Act programs and helps clients navigate the complex applicability questions ranging from NSR issues to MACT applicability.

New Source Review Permitting and Project Development Strategy. Our attorneys are national experts in NSR permitting matters. Bracewell’s expertise regarding the complexities and EPA’s implementation of the NSR program is unparalleled. Because of our national practice, we can help clients avoid pitfalls due to EPA’s current permitting trends to favorably negotiate and obtain required CAA permits.

Climate Change. Bracewell is actively shaping the agenda on climate change — in Congress, in the Executive Branch, in the media, in the courtroom and in the boardroom. Our bench includes sought-after media commentators, leading regulatory strategists, seasoned white-collar defense specialists, and experienced corporate advisors. Bracewell & Giuliani's Climate Change practice is ranked nationally for its excellence by Chambers, one of the most highly regarded industry research publications in the world.

Enforcement Defense. Bracewell has deep experience with both defending and preventing air quality enforcement actions. We have developed favorable NSR enforcement settlements, and have handled litigation defense of NSR judicial actions by the Department of Justice. We have assisted various clients in defending NSR permits before EPA's Environmental Appeals Board. Most significantly, we work with clients during the permitting application process to establish a strong permitting record that withstands challenges by national environmental groups.

Title V Permitting. Our attorneys help clients respond to petitions from environmental groups and objections from EPA on Title V permits, which are key components to the operation and compliance status of the facilities. We assist clients in preparing responses to petitions for EPA's consideration and assist in defending Title V permits in the judicial arena.

EPA Regulatory Development. Our team assists many clients and trade associations in navigating EPA's regulatory process from the initial regulatory development stages to participation in the appeal of EPA actions. Our insights into EPA's regulatory process is unprecedented given the experience of our team of air attorneys and former participation in the regulatory process while working at EPA. Bracewell consistently develops focused and effective comments and follow-up with EPA staff on rulemakings to maximize impact of the comments. If EPA's actions are adverse to our clients, we are well-experienced in the Agency's judicial review actions and have a robust Clean Air Act docket before the DC Circuit Court of Appeals and other circuit courts.

Air Emissions Nuisance Matters. We represent clients in matters relating to ambient levels and the accidental release of air pollutants, including developing and implementing rapid-remediation plans and working with local, state and federal authorities to take corrective action while minimizing the potential for litigation.

SIP Litigation and Policy. We represent clients in all areas relating to air-quality State Implementation Plans (SIPs), including working with state and federal regulators to both shape and ensure compliance with the federal Clean Air Act. Where EPA's disapproval or approval of a SIP is improper, we represent clients seeking to overturn EPA actions.

SSM Emissions. We represent a range of manufacturing, energy, petroleum, and chemical industry clients in the prevention and response to time-limited, discrete startup, shutdown and malfunction-related (SSM) emissions, help ensure compliance with reporting and remediation requirements, and defend enforcement actions and other claims arising from SSM events.

Environmental Compliance Audits. Our attorneys work with top technical experts to create and implement comprehensive, practical air compliance audit programs in the U.S. and abroad. When audits identify potential issues or conflicts, we work with key in-house staff and regulatory authorities to resolve problems quickly and effectively.

Acquisitions and Divestitures with Complex Air Considerations. We advise clients on mergers, acquisitions and divestitures that involve complex air-quality issues, including retention of allowances after asset sales and matters relating to co-located sources.

Strategic Communications. Bracewell’s strong relationships with major media outlets enable us to help clients avoid or navigate public controversy, communicate effectively in the public sphere, and present an effective environmental governance message that generates broad support with the public and in the legislative and regulatory arenas.

Emissions Allowances Trading. Bracewell attorneys have taken the lead in the development of effective emissions-trading programs within a broad range of federal and state schemes, including EPA’s Acid Rain program and Clean Air Interstate Rule, in which non-utility sources may participate, the Texas Mass Emissions Cap & Trade program, and the Texas Senate Bill 7 emissions trading program, among others.

Selected Experience

Our representation of industrial clients in air quality matters is wide-ranging in both substance and geography. In every region of the United States, we handle issues ranging from rulemaking commentary and enforcement defense to NSR violations and hazardous air pollutant emissions.

Enforcement Defense

Defended a favorable settlement to the largest civil enforcement action ever commenced under Title VI of the Clean Air Act. The case involved a nationwide enforcement action under the Clean Air Act's ozone-depleting substances requirements and involved twenty-two industrial facilities in eighteen states.
Represent a polystyrene foam manufacturer in New Source Review settlement negotiations with EPA and DOJ to resolve alleged violations of NSR.
Representation of a glass manufacturer in settlement discussions stemming from alleged NSR violations and related air permitting matters.
Provided enforcement defense and assistance to a major oil company in response to an EPA investigation alleging New Source Review compliance issues under the CAA at a California refinery.
Assist major global cement, concrete and aggregates producer in the design, implementation and performance of periodic environmental compliance audits covering the company's nationwide manufacturing and aggregates operations.
Represented North America's largest independent petroleum refiner and marketer before EPA and environmental groups in the defense of a previously issued Title V permit.
Defense of an aggregates and concrete manufacturer in civil enforcement actions under the Clean Air Act by the New Mexico Environment Department.
Provided strategic advice to a major electric utility regarding potential settlement with EPA regarding company-wide, multi-jurisdictional enforcement cases brought under NSR.
Represent, in negotiations with EPA and DOJ, a Fortune 150 leading independent refiner and marketer of petroleum products, in defending an EPA corporate-wide enforcement action alleging violations of the NSR provisions of the Clean Air Act and an alleged violation of EPA fuel standards. This representation includes providing NSR and mobile source program litigation risk analysis and counter arguments to EPA alleged violations.
Obtained favorable settlement for industrial gases company in national enforcement initiative concerning CFC rule compliance.

Rulemakings

Developed strategy, provided representation before the EPA, and drafted comments on behalf of a major industrial association on the industry's MACT (Maximum Achievable Control Technology).
Represent boiler owners and operators in challenge to Clean Air Act rules setting standards for hazardous air pollutant emissions from boilers.
Provided advice and prepared extensive legal filings as part of the regulatory notice and comment process on behalf of major compression and midstream energy companies on air emissions regulatory developments before the EPA including comments on the development of MACT standards for reciprocating internal combustion engines (RICE), a key issue for the natural gas production and transportation industries.
Advised a multinational energy services company on air emissions regulatory developments relating to the midstream energy industry, including existing and proposed NSPS and NESHAP standards under the Clean Air Act.
Represent an independent power producer in a challenge to a new nationally applicable air emission trading rule implemented by the EPA under the CAA. Under the rule, certain small power producers would be required for the first time to participate in the trading program, even though Congress in legislation had expressly exempted the producers from the trading program.

Compliance Counseling and Permitting

Representation and advice for a major energy company in the permitting strategy for obtaining an NSR permit under the Clean Air Act in EPA Region 9. This work on the permitting of a proposed natural gas power plant in California ensures defensibility of the permitting record and representation before the EPA's Environmental Appeals Board. Cutting-edge legal issues include environmental justice and the permitting of fine particulate matter within an area with adverse air quality.
Represent a large international energy corporation on legal advice regarding corporate-wide Clean Air Act permitting issues at facilities throughout the United States, including leading peer reviews of CAA permit applications needed to begin construction of major refinery expansion projects. We represent the company before the EPA Environmental Appeals Board and successfully addressed remand to allow the construction of a $4 billion expansion of a refinery in Illinois to process crude from tar sands. We are also defending an EPA enforcement action alleging violations of NSR.
Managed a multi-faceted response to NSR by forming a coalition of energy, natural resources and transportation interests in the face of EPA's sector-wide NSR initiative, in which utilities faced enforcement on a huge financial scale. Through this coalition, we managed public and press relations and formulated and implemented regulatory and litigation strategies to mitigate the effects on industry and the availability of reliable, affordable and clean power.
Represent two independent power producers in permitting issues relating to PM 2.5 fine particulates.
Represent a power producer utility cap and trade program under the CAA. This case presents complex CAA issues relating to states' ability to influence national cap-and-trade pollution control programs. The case also presents jurisdictional and federalism concerns between the U.S. and state governments and their impacts on the company's electric generating assets.
Represent a large utility on a wide range of Clean Air Act and Endangered Species Act issues, including legal advice and advocacy before EPA to secure regulatory and policy reforms of major CAA regulatory actions. These include reforms to the NSR program, addressing the recently vacated Clean Air Interstate Rule, and new regulations and policy direction of EPA on regulation of greenhouse gas emissions.
Successfully advanced a novel cause of action in federal district court against EPA to force issuance of an NSR permit for a coal-fired power plant. We represented the client before the EPA's Environmental Appeals Board, defending the permit from challenges by the State of New Mexico and national environmental groups such as Sierra Club, NRDC and Earthjustice.
Advice and representation of a developer of a cutting-edge biomass power plant in Texas in a permitting challenge, including negotiations with national environmental groups to resolve adverse permitting issues.
Assisted a number of separate owners of coal-fired power plants in responses to and defenses of EPA enforcement actions relating to New Source Review regulations under the Clean Air Act.

Judicial Review

Represent a major industrial association on its judicial challenge to EPA's Maximum Achievable Control Technology (MACT) standards.
Advise a large industrial association on performance specifications relating to particulate matter continuous emission monitors.
Assist an industrial chemical producer in a challenge to the EPA's attempts to regulate CO2.
Represent a major electric utility before the U.S. Court of Appeals for the 4th Circuit challenging EPA's approval of Virginia's electric utility cap and trade program under the Clean Air Act. This case presents complex CAA issues relating to states' ability to influence national cap and trade pollution control programs. The case also presents novel jurisdictional and federalism concerns between the U.S. and state governments and their impacts on the company's electric generating assets.