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Environmental Strategies

Environmental Dispute, Litigation and Appellate Practice

  • Overview
  • Attorneys & Professionals
  • Representative Experience

We believe that proper management of environmental regulatory requirements and risk prevention are the best defenses to potential legal liability.

We recognize that litigation is an unwelcome burden for companies and their employees, and before engaging in litigation, we will explore more cost-effective options, such as negotiation or alternative dispute resolution. When litigation or regulatory enforcement actions cannot be avoided, our Practice Group members are well-prepared to provide both criminal and civil litigation services for our clients.

Members of the Environmental Strategies Practice Group and Godfrey & Kahn’s Litigation Practice Group have represented companies and individuals in dozens of state and federal civil enforcement matters and civil litigation. In addition, we have worked in close coordination with members of Godfrey & Kahn’s White Collar Defense & Investigations Practice Group to provide criminal defense services for clients accused of criminal violations of environmental laws.

We have successfully defended clients against state and federal governmental enforcement actions, through both negotiated resolution and litigation. In defense of our clients on environmental enforcement matters, Godfrey & Kahn offers litigation attorneys who have served as both federal and state prosecutors and are uniquely qualified to offer insight into defense against government enforcement actions.

Godfrey & Kahn has long recognized the unique skills required of a successful appellate practice and have many attorneys across the firm with significant environmental experience. We’ve handled cases before state agencies and in the trial courts, as well as those in which we specifically were hired to handle the appeal.

Michael Apfeld

Apfeld, Michael B.

Shareholder
Milwaukee
414.287.9500414.287.9500
John Clancy

Clancy, John L.

Shareholder
Madison
414.287.9256414.287.9256
Diane Marchik

Marchik, Diane M.

Shareholder
Milwaukee
414.287.9220414.287.9220
Daniel Narvey

Narvey, Daniel C.W.

Associate
Milwaukee
414.287.9616414.287.9616
Joseph Nicks

Nicks, Joseph M.

Shareholder
Green Bay
920.436.7675920.436.7675
Sarah Schenck

Schenck, Sarah R.

Associate
Milwaukee
414.287.9694414.287.9694
Brian Spahn

Spahn, Brian C.

Shareholder
Milwaukee
414.287.9314414.287.9314
Edward (Ned) Witte

Witte, Edward (Ned) B.

Shareholder
Milwaukee
414.287.9518414.287.9518
Lynelle John

John, Lynelle R.

Paralegal
Milwaukee
414.287.9632414.287.9632

Representative Experience

Environmental Dispute

Ashwaubenon School District, Ashwaubenon, Wisconsin (ASD)
Godfrey & Kahn represents ASD in a proceeding to recover approximately $1 million in remediation costs associated with polychlorinated biphenyl (PCB) contamination present on the Ashwaubenon High School property. The high school site was previously operated first as a sand/gravel pit and then as a landfill by the municipality. During the early 1960’s, a local paper company disposed of paper sludge in the pit. Godfrey & Kahn (Ned Witte) identified and interviewed a former Department of Public Works employee who provided sworn first hand testimony regarding the paper company’s disposal practices. Witte also identified a nationally renowned PCB expert who prepared a report concluding that the particular type – or “fingerprint” – of PCBs present at the site can be forensically linked to the type of PCBs found in the disposing company’s paper sludge.

Crandon Mine
Godfrey & Kahn defended the interests of the Forest County Potawatomi Tribe in opposing the development of the proposed Crandon Mine, a massive underground copper and zinc mine, which would have impacted numerous wetlands and other sensitive environments. Godfrey & Kahn successfully represented the tribe in negotiating an innovative buyout of the mining company’s interest in surface and mineral rights associated with the proposed mine.

Expansion of the Waste Management Metro Landfill
Godfrey & Kahn acted as special environmental counsel for the City of Franklin, Wisconsin, in a dispute involving the proposed expansion of the Waste Management Metro Landfill.

Federal Superfund Law
Godfrey & Kahn has represented numerous parties in prosecuting as well as defending against contribution claims for cleanup of contaminated properties under the Federal Superfund Law.

Litigation

Bypass and Overflow Enforcement Action
Godfrey & Kahn acted as lead counsel representing 28 communities in an enforcement action instigated by the Wisconsin Attorney General in 2005. Wisconsin vs. MMSD, et al., was a land use dispute involving management of water inflow in the sewer distribution systems in each of these communities. Godfrey & Kahn worked alongside the municipal attorneys for the seven lead communities to negotiate a settlement for all 28 communities that resulted in zero fines and a settlement shield for all involved.

Class I Air Redesignation
Godfrey & Kahn represented the Forest County Potawatomi Community in its efforts to have its reservation redesignated to Class I status under the Clean Air Act. This Class I redesignation is the first such status awarded to a federally recognized tribe in the United States since 1992. Godfrey & Kahn has been involved in all of the complex legal aspects of Clean Air Act and related air permitting, and managed U.S. Environmental Protection Agency, Wisconsin and Michigan state government to government negotiations required for the implementation of this new Class I status. We assisted the tribe in successfully defeating a challenge by the state of Wisconsin that resulted in a negotiated agreement. We also successfully represented the tribe in opposing the Bush administration in its attempt to promulgate rules that would have severely weakened Class I status.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Cost Recovery
Godfrey & Kahn has represented numerous clients in defense of cost-recovery actions brought by the federal government or other potentially responsible parties under CERCLA.

Cook, et al. v. Rockwell Int’l Corp.
Godfrey & Kahn serves as co-counsel for defendants in a class-action lawsuit pleading claims for property damage and medical monitoring brought by a class of Colorado residents, who alleged exposure to plutonium released from a nuclear facility. The case was tried to a jury in 2005-06. The case is on appeal. (D. Colo., Case No. 90-K-181)

Greenwood Fuels, et al. v. Baycor Fiber Products, et al.
Godfrey & Kahn served as outside litigation counsel to an alternative fuels manufacturer in Green Bay, Wisconsin. Greenwood Fuels were alleging breach of contract and other claims against the manufacturer of equipment for processing and fabrication of wood fuel pellets. The case resulted in a settlement favorable to our client.

In the Matter of U.S. Department of Energy High Level Waste Repository
Godfrey & Kahn is counsel to an Indian tribe in a proceeding before the Nuclear Regulatory Commission to consider the DOE’s application to license the Yucca Mountain high-level waste geologic repository. We petitioned and successfully obtained intervener status for client. An interlocutory appeal of a dispositive issue is currently pending before the Nuclear Regulatory Commission.

Lake Koshkonong Water Levels
Godfrey & Kahn served as co-counsel in a complex dispute with the Wisconsin Department of Natural Resources involving water levels in Lake Koshkonong. We represented two business associations with recreational interest in the dispute. This representation involved:

  • Representing the parties in a two week contested case hearing involving more than 15 expert witnesses denying the request for a 7.2 inch water level increase.
  • A successful appeal to the Wisconsin Supreme Court that that reversed the decision and remanded it back to the agency for another decision consistent with the Supreme Court’s decision
  • Representing the parties in negotiations with DNR that involved a compromise proposal in 2016 the will satisfy the parties.

Opposition to the Muskego/Emerald Park Landfill
Godfrey & Kahn represented the City of Muskego, Wisconsin, in a contested case hearing opposing one of the largest proposed expansions of a municipal solid waste facility in Wisconsin history. At the conclusion of the 18-day hearing, the matter was resolved by a negotiated agreement that awarded the City of Muskego the largest fee per ton payment for municipal waste negotiated to date in Wisconsin.

State Common-Law Trespass and Nuisance
Godfrey & Kahn has defended clients in state common-law trespass and nuisance lawsuits. Brought by property owners against manufacturers, the suits seek injunctive relief to reduce or halt emissions of hazardous or particulate materials in effluent air and water or for monetary damages for alleged property damage.

Surprise Regulatory Inspections
Godfrey & Kahn has advised clients in responding to surprise inspections of alleged environmental violations by law enforcement. We’ve intervened and negotiated with state and EPA agents at the client facilities as well as coordinated presentation of mitigating factors regarding the alleged violation.

June, et al. v. Union Carbide Corp., et al.
Godfrey & Kahn obtained summary judgment as co-counsel for defendants in a mass-action lawsuit brought by Colorado residents alleging personal injuries and need for medical monitoring arising from alleged releases of hazardous substances from a uranium mill. The ruling granting summary judgment was affirmed on appeal. (D. Colo., Case No. 04-MK-123, March 27, 2007)

Water Quality Related Effluent Limits
Godfrey & Kahn represents four publically owned treatment facilities in challenges to the terms and condition contained in their respective WPDES permits. In particular, these permit matters involve challenges to the stringent water quality related effluent limits for phosphorus along with challenged to the timelines for compliance which accompany these permits.

Wisconsin vs. MMSD, et al.
This was a land use dispute involving management of water inflow in the sewer distribution systems in each of 28 communities. Godfrey & Kahn worked alongside the municipal attorneys for the seven lead communities to negotiate a settlement for all of those communities that resulted in zero fines and a settlement shield for all involved.

Appellate Practice

Alliant Energy Corp. v. Bie
Godfrey & Kahn represented a Wisconsin public utility as amicus, in support of the Public Service Commission of Wisconsin (PSCW), in Alliant’s constitutional challenge to Wisconsin’s Utilities Holding Company Act (WUHCA). Together with the PSCW, Godfrey & Kahn’s efforts were instrumental in the Seventh Circuit Court of Appeals decision upholding as constitutional the most important elements of the WUHCA which remains in effect today.

Oneida Seven Generations Corporation et al. v. City of Green Bay
Godfrey & Kahn has represented a developer of a waste to energy facility in significant dispute with a municipal government relating to zoning and conditional use permit for the facility. This dispute went to the State Supreme Court and resulted in a decision in favor of our client. Oneida Seven Generations Corporation et al. v. City of Green Bay, 2015 WI 50 (May 29, 2015).

Public Service Commission Appellate Work
Godfrey & Kahn has represented its clients in numerous petitions for review (as both petitioner and intervener) of Public Service Commission of Wisconsin Orders.

Rock-Koshkonong Lake District v. State Department of Natural Resources
Godfrey & Kahn represented litigants in a water dispute against the DNR involving lake levels on Lake Koshkonong. This dispute went to the State Supreme Court and resulted in a decision in favor of our clients reversing the DNR water level decision. Rock-Koshkonong Lake District v. State Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800.

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