Cases
Experience: Constitutional Cases: Adar
Constructors v. Pena Inc., 515 U.S. 200 (1995). Seminal U.S. Supreme Court case determining the constitutional st
ard of review required under the Fifth Amendment equal protection clause for federal government contracting programs.
Colo. Mining Ass'n et al. v. Huber, 240 P.3d 453 (Colo. Ct. App. 2010)
rev'd Huber v. Colo. Mining Ass'n, 624 P.3d 884 (Colo. 2010). Mining Association
individual taxpayers challenge asserted the Department of Revenue's increase in the coal severance tax rate for extracted coal without voter approval amounted to a tax rate increase, in violation of the Colorado constitution.
Natural Resources Cases: Citizens for Clean Air & Water In Pueblo & Southern Colorado v. Pueblo County Planning Commission, Case No. 01CA1603 (Colo. 2002). Represented a major industrial facility client who intervened in a special interest group challenge against Pueblo County's issuance of a county l
use permit. District Court
Court of Appeals upheld County's issuance of the permit.
Colo. Mining Ass'n v. Board of County Comm'rs of Summit County, 199 P.3d 718, (Colo. 2009). Lead counsel in challenge by Colorado Mining Association to invalidate County ordinance banning the use of modern mining practices on the basis the ordinance was preempted by the Colorado Mined L
Reclamation Act. Decision by Colorado Supreme Court established key natural resource preemption law in Colorado.
Dacotah Chapter of Sierra Club
Dakota Resource Council v. Secretary of the Interior Ken Salazar, Case No. 1:12-CV-065 (D.N.D. May 30, 2012)
Dakota Resource Council v. North Dakota Public Service Commission, Case No. 1:12-CV-064 (D.N.D. May 30, 2012). Lead counsel for the North Dakota Public Service Commission in defeating two actions brought against it by special interest groups seeking to strip the State of its regulatory authority under the Federal Surface Mining Control
Reclamation Act.
Wild Earth Guardians v. Office of Surface Mining, USDC District of Colorado ( 1:13-CV-00518-RBJ). Negotiated a settlement of a remedy on behalf of a mining company intervener in an action by a special interest group seeking to invalidate mine plan modifications issued to it by the U.S. Office of Surface Mining.
Western Organization of Resource Councils v. Jewell, USDC District of Columbia (1:14-CV-01993-RBW, 2015). Represented State of North Dakota in lawsuit brought by a special interest organization seeking to invalidate
enjoin federal coal leasing program. Court granted intervention
motion to dismiss the case.
USOR PRP Group v. City of Pasadena, USDC Southern District of Texas (4:14- CV-02441, 2015). Represented a municipality in a major CERCLA/Superfund case.
State of Wyoming v. Jewell, USDC District of WY (15-CV-0043-SWS). Represented the State of North Dakota in a federal court challenge to BLM's hydraulic fracking regulations
obtained a judicial stay of BLM Rule.
Water Quality: North Dakota et. al. v. EPA et. al., USDC District of ND (3:15-CV-59-RRE). Lead counsel for State of North Dakota in leading coalition of twelve states in obtaining a preliminary injunction against EPA's
U.S. Army Corps of Engineers' Waters of the United States rule.
Air Quality: Cunningham
Sohocki v. Colorado Air Quality Control Commission (Colo. App. 1999) Case No. 98 CA1861. Counsel for coalition of electric utilities
intervened
defeated an action by special interest group challenging favorable rule making clarifications adopted by the Colorado Air Quality Control Commission.
Am. Corn Growers Ass'n v. EPA, 291 F.3d 1 (D.C. Cir. 2002). Lead counsel in action by national associations before the U.S. Court of Appeals challenging EPA's original Regional Haze Rules regulations that were found to be unlawful
were rem
ed to the agency.
Citizens for Clean Air & Water In Pueblo
Southern Colorado v. Colo. Department of Public Health & Environment, Case No. 02CA0669 (Colo. 2003). Represented major industrial facility client in intervening in action by citizens group challenging issuance of PSD permit issued to client. District Court
Court of Appeals upheld PSD permit.
Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission, 275 P.3d 646 (Colo. 2012). Lead counsel in action before Colorado Supreme Court preserving action seeking judicial review of Colorado Public Utility Commission's adoption of electric generation m
ate.
North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2012). Lead counsel for State of North Dakota's challenge of EPA's refusal to consider voluntarily installed existing pollution control technology at coal-powered electric generating plants in its regional haze BART analysis disapproving the State's SIP
implementing an FIP. Case also involved defense of State air quality plans against collateral challenge by special interest organizations.
Nat'l Envtl. Dev. Association's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012)
cert. denied
ASARCO LLC v. EPA, 2013 U.S. LEXIS 975 (U.S. 2013). Represented coalition of states challenging EPA ambient st
ard for sulfur dioxide alleging the EPA's proposed modeling monitoring implementation approach violated federal notice
comment rulemaking requirements.
United States v. Minnkota Power Cooperative, Inc., 831 F. Supp. 2d 1109 (D.N.D. 2012). Lead counsel for State of North Dakota in defeating an EPA challenge seeking to overturn North Dakota's Best Available Control Technology determination for a large coal-fueled electric utility. The Court dismissed EPA's challenge
upheld the State's determination.
Policy Development
Rulemaking: Multiple Colorado, Wyoming, Montana, New Mexico,
North Dakota air quality-related rulemaking proceedings representing regulated entities, associations, or state or legal government parties.
Permitting
Compliance: Full suite of permits
governmental approvals for siting
construction of greenfield $250 million Portl
cement manufacturing facility in southern Colorado.
PSD permitting
compliance counseling
negotiations in Colorado, South Dakota, North Dakota, Wyoming,
New Mexico for coal
natural gas-fueled power generation facilities
coal
hard rock mines,
major manufacturing facilities.
Due diligence
in numerous acquisition transactions, including review, risk analysis
management of environmental issues involving rail transfer, mines, manufacturing,
power generation facilities valued over several billion dollars.
The above representations were h
led by Mr. Seby prior to his joining Greenberg Traurig, LLP.
