Richard E. Schwartz has specialized in environmental law since 1973, primarily working with the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act (RCRA), and the Superfund Act. He focuses on environmental and toxic tort litigation and has extensive experience dealing with a wide range of scientific and technical issues in a litigation context.
He was selected by his peers to be included in The Best Lawyers In America as a "Best Lawyer" in the practice area of environmental law from 2007 to 2011. He was also selected as a "Best Lawyer" for natural resources law in 2009, 2010 and 2011. In addition, Richard was selected for inclusion in The International Who's Who of Environment Lawyers 2007, 2008, 2010 and 2011. He was named in the Chambers USA 2004 "The Client's Guide" as one of America's leading water quality litigators. In 2008 and 2010, Chambers USA ranked him among the best environmental lawyers in the District of Columbia, noting in 2008 that "Commentators identify him as 'a talented and articulate lawyer.'"
Some of his most important matters are listed below:
In 2011, he headed a Crowell & Moring team that coordinated the common briefing on behalf of a group that included industry parties, local governmental bodies, and the State of Florida in a challenge in federal district court to U.S. EPA water quality regulations. EPA’s regulations had established numeric criteria for nitrogen and phosphorous in most of Florida's streams, lakes, and springs. In 2012 Richard presented the oral argument for the group on common issues. The court vacated EPA’s stream criteria, which were the focus of Richard’s argument, and the central issue in the case. (Florida Wildlife Federation v. EPA, N.D. Fla. No. 4:08cv324 (February 18, 2012).
In 2011 Richard led a team of Crowell & Moring lawyers in a two-week evidentiary hearing before an administrative law judge of the State of Florida defending a Lockheed Martin ground water remediation plan against a challenge by a local citizen group. After the close of the hearing, the judge issued a detailed order recommending that the Florida Department of Environmental Protection adopt Lockheed Martin's position on every single issue (of dozens) raised by the opposing parties.
In 2010, Richard successfully argued before the U.S. Court of Appeals for the Fifth Circuit that the Clean Water Act does not authorize EPA to compel an animal feeding operation to obtain a permit because it "proposes" to discharge. The Court's opinion cited an explanation in Richard's oral argument as a key basis for its decision. The Fifth Circuit also agreed that the Clean Water Act does not empower EPA to impose penalties on any facility simply for not having a permit. The Fifth Circuit vacated the EPA regulations that provided otherwise. National Pork Producers Council v. EPA (No. 08-6193; decided March 15, 2011).
Rich was selected as the lead negotiator for a joint defense group of four of the nation's largest home builders in a comprehensive federal Clean Water Act enforcement action over storm water discharges from construction sites. The negotiations successfully avoided litigation and in 2008 culminated in a common national consent decree used by all four companies.
On January 31, 2005, EPA published in the Federal Register an "Animal Feeding Operations Consent Agreement and Final Order" that Richard negotiated with EPA on behalf of a livestock and poultry industry coalition. This unprecedented consent agreement, which took several years to negotiate, allows animal feeding operations in the hog, egg, and (if they meet certain requirements) poultry and dairy industries to obtain temporary protection from enforcement of the Clean Air Act and CERCLA and EPCRA in exchange for funding a monitoring study of their emissions. Representing intervenors, Richard helped successfully defend that agreement in the U.S. Court of Appeals for the District of Columbia Circuit. Association of Irritated Residents v. EPA (D.C. Cir., decided July 17, 2007).
In December 2004, Richard argued before the U.S. Court of Appeals for the Second Circuit that the Clean Water Act does not empower EPA to require an NPDES permit for a facility unless it is actually discharging. He appeared on behalf of industry petitioners challenging EPA regulations for concentrated animal feeding operations. In February 2005, the court adopted his analysis and invalidated EPA's "duty to apply" provisions on precisely this ground. Waterkeeper Alliance v. EPA, (2d Cir., decided 2/28/05). This analysis places important limits on EPA's permitting and enforcement authorities under the Clean Water Act.
In 2003, in Barrick Goldstrike Mines, Inc. v. Browner, he obtained an order from Judge Thomas Penfield Jackson invalidating EPA's "toxic release inventory" program requirement that mining companies report their movement of rocks (to expose ore) as "releases" of "hazardous substances." That requirement had made the mining industry appear to be the most polluting industry in America.
In 2001, he represented LAC Minerals at the hearing where the New Mexico Water Quality Commission granted the first variances to ground water remediation standards ever granted in the State of New Mexico.
His cases have also involved broader issues of administrative law. On behalf of the steel industry, he developed and argued the successful industry position in AFL-CIO v. OSHA, the 1992 decision of the U.S. Court of Appeals that vacated 428 OSHA standards. In 1999, he negotiated a unique "Compliance Audit Program" enforcement agreement with U.S. EPA for hog farms nationwide. In 2000, he persuaded the U.S. Court of Appeals for the District of Columbia Circuit to unanimously reverse the district court and allow judicial review of EPA preambles, guidance documents and a letter that EPA used to implement its "toxic release inventory" program. This decision, Barrick Goldstrike Mines, Inc. v. Browner, established a precedent that should help companies seeking judicial review of informal agency action.
Richard has defended companies in numerous "citizen suits" by environmental groups, including the following:
In 1997, he obtained the outright dismissal of a Clean Water Act citizen suit against a mining company. The case, Amigos Bravos v. Molycorp, Inc., was dismissed on the ground that exclusive jurisdiction lay in the U.S. Court of Appeals, barring the citizen suit. The dismissal was affirmed by the Tenth Circuit.
In 1995, he developed defenses to a citizen suit in New Mexico under the Clean Water Act and RCRA that resulted in the outright dismissal of four of the counts of the complaint on summary judgment. The fifth count was severely limited, and the companies settled the remainder of the case on favorable terms. The case, Friends of Santa Fe County v. Lac Minerals et al., created unusually favorable legal precedent for industry in a difficult area.
In 1992 he obtained an order from the U.S. Court of Appeals for the District of Columbia Circuit requiring EPA to remove a newly-listed dump site from the Superfund "National Priorities List."
Since 1980, Richard has routinely advised industrial clients on the federal and state hazardous waste laws. He has also advised clients regarding the Superfund Act, and defended them in Superfund litigation. In the Conservation Chemical Company Superfund case in Kansas City, he spoke for the approximately 160 third-party defendants in oral argument before the court on a number of occasions. He also represented that group in settlement negotiations and helped devise their internal liability allocation agreement.
For the leather tanning industry, Richard won its first Clean Water Act effluent limitations guidelines lawsuit in 1975; convinced EPA to abandon proposed Clean Water Act pretreatment standards in 1979; obtained delisting under RCRA of its solid wastes in 1980; and obtained a favorable settlement in its second effluent discharge limitations case in 1983.
He represented the steel industry in three lawsuits challenging EPA's effluent discharge limitations for that industry. A successful 1983 settlement of one of these suits was praised by the Washington Post as a "creative solution" to a difficult dispute.
In 1974, Richard represented the steel industry in the Environmental Protection Agency's (EPA's) first toxic pollutant hearings under the Clean Water Act. From 1974 to 1984, he argued industry's position on numerous occasions during the many stages of the ensuing litigation.
Richard has handled litigation throughout his legal career. Many of his cases (involving a variety of environmental laws) have been in the U.S. District Court for the District of Columbia, but Richard has also tried or argued cases in the Southern, Eastern, and Western Districts of New York; in federal district courts in Florida, Maine, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, and Texas; and in state courts in Florida, New York, New Jersey, and Tennessee. He has argued before the First, Second, Fourth, Fifth, Eleventh, and the District of Columbia Circuits. The Molycorp case (discussed above) was affirmed on the briefs in the Tenth Circuit.