Kenneth Berlin heads the firm’s Environmental practice. Mr. Berlin has been involved in a wide range of environmental issues since 1979, when he was section chief in the Environment and Natural Resources Division of the U.S. Department of Justice. He also was chairman of the board of the Environmental Law Institute from 2003-2005.
Mr. Berlin has extensive experience in and advising clients on climate change issues, such as providing compliance and disclosure advice and in drafting and negotiating greenhouse gas trading contracts, including representing Fannie Mae in developing an innovative program to capture and then sell greenhouse gas reduction credits resulting from energy-efficiency measures in residential homes. His report, Global Warming and the Future of Coal, The Path to Carbon Capture and Storage was published in May 2007 by the Center for American Progress.
Mr. Berlin spends considerable time negotiating environmental contract provisions and supervising environmental due diligence investigations for buyers and sellers, and he has represented more than 500 companies in business transactions. Additionally, he has worked on international transactions involving environmental requirements set by international lending institutions, environmental due diligence in Eastern and Western Europe and tropical forestry issues.
Mr. Berlin also has an extensive background in environmental litigation, including representing parties in environmental cleanup issues, criminal and civil penalty cases, appeals of administrative decisions, and in arguing cases in federal appeals court, including:
Mr. Berlin has significant experience in representing clients in connection with environmental issues at controversial facilities, dealing with environmental and community groups, and in preparing complex environmental impact assessments. He represented Oil Shale Exploration Company in the preparation of an Environmental Assessment prepared for an oil shale project in Utah and in the obtaining of permits for the project. He represented a Mexican company, Exportadora de Sal, S.A. de C.V., in connection with a very controversial saltworks project in Baja California during which he helped develop the scope of work for and reviewed the environmental assessments, and helped quarterback the team of more than 40 experts. In connection with that work, he represented the company in dozens of meetings with U.S. environmental groups and with U.S. and California officials interested in the project.
- representing AES in connection with an investigation by the New York attorney general’s office of greenhouse gas disclosure;
- representing CF Industries in connection with an investigation by the Department of Justice under the Resource, Conservation and Recovery Act;
- defending a major lawsuit brought by the United States alleging that W.R. Grace & Company’s spin-off of its packaging business of our client, Sealed Air Corporation, was a fraudulent conveyance intended to insulate these assets from Grace’s asbestos liability. The case primarily involved litigating the estimated cost of cleaning up dozens of sites across the country. The U.S. government alleged that Grace had understated its environmental liability by more than $450 million;
- representing United Airlines, Inc. in a complex cleanup and follow-up litigation with other airlines involving contamination at Kennedy Airport in New York in a claim against United Airlines by American Airlines, Inc. seeking up to $100 million in damages;
- representing the United States Enrichment Corporation in defending a Superfund claim brought by the United States against USEC for the cleanup of a depleted uranium treatment and disposal facility in South Carolina; and
- acting as national environmental counsel in the bankruptcies of Delphi Corporation; United Airlines; Owens Corning; IT Group, Inc.; US Airways Group, Inc. and Kmart Corporation, and represented National Steel Corporation and Sterling Chemicals, Inc. in resolving environmental issues in their bankruptcies. In these cases, he litigated or settled dozens of cases and developed innovative approaches to the disposition of property of the bankrupt party.
Mr. Berlin played a prominent role in the North American Free Trade Agreement (NAFTA) and General Agreement on Tariffs and Trade (GATT) negotiations, representing environmental groups and business entities in the drafting of the NAFTA Environmental Side Agreement and the GATT standards provisions. He has been involved in analyzing compliance issues raised by the NAFTA Environmental Side Agreement and financing issues raised by the North American Development Bank (NADBank) funding of environmental infrastructure projects.
Mr. Berlin has written extensively on greenhouse gas issues, international trade and environmental issues, clean coal technology issues, hazardous waste cleanup, the allocation of liability under environmental cleanup laws, taking issues, environmental provisions in real estate transactions and mergers and acquisitions agreements, endangered species and environmental issues in Eastern Europe.
Mr. Berlin was one of ten attorneys internationally recognized in the first band of worldwide climate change attorneys in Chambers Global: The World’s Leading Lawyers for Business 2008 and for environment (transactional) in Chambers USA: America’s Leading Lawyers for Business 2007. He also was selected for inclusion in The Best Lawyers in America 2008.
- “A Regulatory System for Greenhouse Gas, What It's Likely to Look Like and What Impact It Will Have on Business, Climate Change Regulation and Policy Law,” Seminars International, Washington, D.C., April 20, 2007
- “Transitioning to a Carbon Constrained Future - What It Means to Business,” PEW Center for Climate Change presentation, November 2006 Conferences
- “Transitioning to a Carbon Constrained Future: What It Means for Energy Projects,” Second Annual Legal Dimensions Of Climate Change Conference, American University’s Washington College of Law, November 8, 2006
- “American Business and Greenhouse Gases: What's Next ALI-ABA Course of Study, International Environmental Law,” May 2006 “Arresting Climate Change, International Environmental Law,” Annual Advanced ALI-ABA Course of Study, April 20-21, 2006
- “Environmental Issues in International Business Transactions – Keeping Out of the Abyss,” (presented at the American Law Institute Seminar) May 1995
- J.D., Columbia Law School, 1973
- B.A., University of Pennsylvania, 1969
- Chairman of the Environmental Law Institute (2003-2005)
- Member of the Board, Center for International Environmental Law
- Chairman of the American Bird Conservancy (2004-2007)
- Former Vice Chairperson, Environmental Quality Committee, Natural Resources Law Section, American Bar Association
- Chief, Wildlife and Marine Resources Section, Environment and Natural Resources Division, U.S. Department of Justice (1979-1981)
- K. Berlin, R. Sussman, "The Path to Cleaner Coal: Performance Standard More Effective Than Bonus Allowances,"Center for American Progress Action Fund, August 2007
- K. Berlin, R. Sussman,"Global Warming and the Future of Coal: The Path of Carbon Capture and Storage,"Center for American Progress, May 2007
- "Pinpointing and Preventing Imminent Extinctions,"Proceedings of the National Academy of Science, December 20, 2005
- Carr, Fein, Dinkins, Berlin, et al. “Defense of Federal Environmental Crimes, Criminal Liability of Corporate Officers, Directors and Employees Under U.S. Environmental Laws,” Environmental Criminal Liability, (BNA) 1995
- Bennett, Berlin, Kolesar, et. al. “Internal Investigations of Potential Criminal Misconduct Under Environmental Laws,” Environment Reporter, (BNA) 1995
- K. Berlin, J. Lang, “Trade and the Environment,” The Washington Quarterly, Vol. 16, No.4, pp. 33-51, July 1993
- New York
- District of Columbia