Howard Kenison’s experience litigating environmental cases before state and federal courts and administrative agencies provides invaluable knowledge and insight for business clients dealing with the complex array of environmental laws that can impact commercial transactions.
His practice includes environmental due diligence in corporate acquisitions and real estate transactions, air quality litigation and permitting, NEPA litigation for utility, water and transportation projects, environmental audits for corporate risk prevention, wetlands permitting and defense of enforcement actions, hazardous and radioactive waste facility litigation, water quality permitting and enforcement actions, Superfund and natural resource damage litigation and environmental insurance litigation.
Howard is the former Colorado Deputy Attorney General in charge of Colorado's Superfund Litigation and he maintains key contacts with environmental agencies.
He is currently Vice Chair of the 10,000 member ABA Section of Environment Energy and Resources.
Environmental Liabilities and Due Diligence: Howard regularly advises clients involved in complex asset, stock purchase transactions, real estate development projects and other business transactions concerning the allocation of environmental risks and liabilities, including environmental representations and warranties, indemnities and due diligence efforts. His experience litigating environmental cases provides a practical aspect to his advice.
Representative cases: Howard has provided counsel to an electric generating utility concerning the potential environmental liabilities and the allocation of environmental risk arising from the acquisition, development and construction of a new generating facility.
Provide advice and counsel regarding potential environmental liability for real estate development project to be developed on a closed landfill a on former federal facility.
Advise client regarding environmental representations and warranties and disclosures in stock purchase transactions.Work with client to prepare request for proposals and expert studies to develop environmental baseline in purchase agreement.
Clean Air Act Litigation and Permitting: Howard represents utility clients in litigation involving air permits and counsel’s clients concerning permitting and compliance with state and federal clean air act laws.
Representative Cases: Howard represents a major electric utility concerning an air permit for a generating facility and was litigation counsel for this utility in lawsuits related to the air permit. In the past he defended utilities involved in a visibility impact case brought under the federal Clean Air Act.
NEPA Litigation: Howard provides strategic advice and counsel to clients involved in preparing and, if needed, litigation of Environmental Impact Statements for utility transmission, highway transportation and water projects, including litigation-sensitive advice regarding comments for the administrative record involving purpose and need, environmental impacts, noise, air quality, wetlands, air toxics, traffic demand and Section 4(f) parks and historic properties.
Representative Cases: He represents the Jefferson Parkway Public Highway Authority as special environmental and litigation counsel involving the completion of the transportation beltway around Metro Denver.He recently settled litigation involving a Colorado mutual ditch company that challenged the adequacy of an EIS.
In the past, Howard has represented the E-470 Public Highway Authority and the Northwest Parkway Public Highway Authority as Special Environmental Counsel.
Hazardous Waste Facility Litigation and Permitting: Howard successfully represented a county government before the Colorado Supreme Court regarding disposal of low-level radioactive wastes under the Rocky Mountain Low-Level Radioactive Waste Compact. He advised the client on all aspects of Colorado's Hazardous Waste Act and Colorado's radiation control provisions, including the state permitting process and applicable local land use laws.
Wetlands Permitting and Enforcement: Howard defends clients in federal wetland enforcement actions and represents developers and others seeking to obtain permits from the United States Army Corps of Engineers under Section 404 of the Clean Water Act.
Representative Cases: He has represented developers in EPA and Corps enforcement cases that involve disputes over the agencies’ Clean Water Act jurisdiction, negotiations of the terms and conditions of Consent Decrees and Administrative Compliance Orders as well as the amount of civil penalties. Howard has also provided legal strategy concerning the development of alternatives analysis in complex 404 permit applications.
Superfund Litigation: Howard has extensive experience in Superfund litigation including cost recovery cases and natural resource damage matters. He has worked as counsel for clients involved in PRP committees and has negotiated resolution of Superfund claims with environmental agencies.
Representative Cases: As Deputy Attorney General, Howard's principal responsibility was to provide strategic litigation planning for seven major Superfund lawsuits in Colorado federal courts; these cases included one of the largest contaminated sites in the nation - the Rocky Mountain Arsenal Superfund Site. He was directly involved in all aspects of cost recovery claims under CERCLA Section 107 as well as claims for natural resource damages.Howard also represented the City of Lakewood, Colorado as a PRP at the Lowry Landfill Superfund Site and has argued Superfund issues before the U.S. Court of Appeals. Howard recently settled EPA Superfund claims against a client at an historic mining site in South Dakota. He has represented a client in a case related to the de-listing of a landfill.
Water Quality Permitting and Enforcement: In addition to his wetlands practice, Howard provides advice and counsel to utility and other clients concerning NPDES permitting and represents clients where the government has initiated enforcement actions under state and federal water quality laws.
Environmental Audits for Corporate Risk Prevention: To assist clients in avoiding government enforcement actions, Howard routinely advises clients undertaking environmental compliance and environmental management system audits. His counsel involves advice concerning the application of federal and state environmental audit and privilege laws designed to protect clients from environmental liabilities and penalties.
Environmental Insurance Litigation: Howard served as environmental counsel for a large multi-state utility in a three-week jury trial seeking insurance recovery for releases of contaminates at three Superfund sites. The trial resulted in a $7.1 million verdict for his client.