Byron Kirkpatrick

Partner

Atlanta
Business Phone: 404.885.3387
Business Fax: 404.962.6602

byron.kirkpatrick@troutmansanders.com

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Byron Kirkpatrick regularly advises industrial clients, developers, and local municipalities on state and federal environmental policy, permitting, and compliance and enforcement matters.

Byron assists clients with assessing, and preparing public comments on, proposed environmental rules, as well as compliance planning and assurance strategies, and he has successfully challenged final EPA rules in the U.S. Court of Appeals for the D.C. Circuit. Byron provides counsel and defense to industrial and municipal clients facing state, federal and citizen enforcement actions, under the federal Clean Water Act. And he advises industrial clients on siting and permitting strategies for new infrastructure projects and developments and on environmental risk assessment and risk management for client projects and transactions.

Byron has a broad range of experience, particularly with respect to the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, and Superfund.

Representative Matters

Siting and Permitting Experience

  • Advise several industrial and electric utility clients on the applicability of the Clean Water Act’s waste treatment system exemption with respect to various and unique wastewater treatment and ash management facilities at numerous industrial sites, as well as on state-specific issues related to this exemption.
  • Advise several energy and finance clients on siting and permitting issues and risk assessment/management for wind, solar, biomass, and traditional electric generating facilities and associated transmission projects, including issues under the National Environmental Policy Act (and State equivalents, e.g., the California Environmental Quality Act), the Clean Water Act, the Endangered Species Act, and the Migratory Bird Treaty Act.
  • Advised client on Clean Water Act, National Environmental Policy Act, Endangered Species Act, and National Historic Preservation Act challenges associated with the expansion of a major infrastructure project.
  • Counseled electric utility client on National Environmental Policy Act and Endangered Species Act issues associated with offshore wind energy projects.
  • Represented one of the nation’s largest banks in the financing of several utility-scale solar facilities, including a 55MW facility in (approximately $250MM in value) in New Mexico, two 20MW facilities in California, and a 50MW portfolio in North Carolina.
  • Advised client in obtaining a Clean Water Act permit from the Corps of Engineers and a State Buffer Variance from Georgia EPD, in the face of organized citizen opposition, for a 155-acre industrial by-product storage facility.
  • Represented developer in obtaining an after-the-fact Corps of Engineers’ permit for two unpermitted lakes, totaling 25 acres.
  • Advised transportation client on federal and state water quality and wetland permitting for large infrastructure projects in several eastern states.
  • Represented client in obtaining permit under the Migratory Bird Treaty Act that was critical to client’s construction schedule for multi-billion dollar project.

Litigation and Enforcement Experience

  • Represented large municipal client in federal and state enforcement action seeking to impose over $3 billion in injunctive relief to address sanitary sewer overflows.
  • Represented residential developer and homebuilder in a joint federal and state enforcement action concerning unpermitted stormwater detention structures. Successfully negotiated an after-the-fact permit from the Corps of Engineers, with no federal penalty and a significantly reduced state penalty.
  • Represented developer and homebuilder in Clean Water Act citizen suit in federal court. The representation included advising client with respect to dam removal and stream restoration under a negotiated settlement.
  • Represent industry association in appeal of EPA greenhouse gas regulations in the U.S. Court of Appeals for the District of Columbia Circuit.
  • Represented industry association in a rulemaking and litigation regarding Georgia’s inclusion in a major interstate air quality rulemaking. The representation included presenting successful arguments to the U.S. Court of Appeals for the D.C. Circuit that the state petitioner lacked standing for its appeal.

Regulatory and Auditing Experience

  • Counsel clients on new wetlands, stormwater, water quality, and air quality regulations and assists individual clients and industry associations with preparing and filing comments in regulatory rulemakings.
  • Advised major electric utility hydroelectric division regarding riparian and other property rights issues with respect to lakefront land owners.
  • Represent several clients on tideland ownership issues associated with coastal restoration and Clean Water Act mitigation projects.
  • Advised client on property ownership rights in a high quality underground water supply.
  • Advise financial institution on Clean Water Act, Erosion and Sedimentation Act, nuisance and trespass liability with respect to foreclosure on stalled residential development.

Reported Decisions

  • North Carolina v. EPA , 587 F.3d 422 (DC Cir Nov. 24, 2009).

Presentations and Speaking Engagements

  • Moderator, "Redefining 'Waters of the U.S.': What Are the Implications?", 14th Annual Georgia Water Law and Regulation, February 27, 2015. 
  • Speaker, “Mitigation Banking through Public-Private Partnerships to Protect Wetlands, Sensitive Stream Beds and Listed Species,” 9th Annual Georgia Environmental Conference, August 22, 2014.
  • Moderator, “Annual Review of Clean Water Act Case Law with Georgia Implications,” 9th Annual Georgia Environmental Conference, August 21, 2014.
  • Speaker, “Clouded Judgments?: Life After the Supreme Court’s Recent Air Decisions,” ICLE Environmental Law Summer Seminar, August 2, 2014.
  • Speaker, "Water Issues Confronting Local Governments," The Seminar Group 13th Annual Georgia Water Law and Regulation , March 19, 2014.
  • Speaker, “Key Compliance Issues under Georgia’s Industrial Stormwater Permit,” The Seminar Group Stormwater Law & Regulation in Georgia, September 6, 2012.

Publications

  • The Cross State Rule and EPA’s Rush to Regulate,” Trends Newsletter, ABA Section of Environment, Energy and Resources, Jan/Feb 2012.
  • Peter Glaser, Mack McGuffey and Byron Kirkpatrick, Regulating GHGs Under The Clean Air Act, Law360, Portfolio Media, Inc., (www.Law360.com) (March 2009).
  • Byron W. Kirkpatrick, Presidential Prerogative Under the Endangered Species Act, ABA Nat. Res. & Env't (Summer 2008).
  • Peter S. Glaser, Douglas A. Henderson, Mack McGuffey, and Byron W. Kirkpatrick, Global Warming Solutions: Regulatory Challenges and Common Law Liabilities Associated With The Geologic Sequestration of Carbon Dioxide, 6 Geo. J. L. & Pub. Pol'y 429 (2008).
  • Gregory W. Blount and Byron W. Kirkpatrick, Concentrated Animal Feeding Operations After the Waterkeeper Decision, Environmental Law Newsletter (Fall 2007).

Professional and Community Involvement

  • State Bar of Georgia (Member, Environmental Law Section)
  • American Bar Association (Member, Section of Environment, Energy, and Resources)

Rankings and Recognition

  • Selected as a Rising Star in Environmental by Law & Politics and Atlanta Magazine (2011-2016).

Professional Experience

  • Partner, Troutman Sanders LLP, 2015-present
  • Associate, Troutman Sanders LLP, 2006-2014
  • Judicial Intern to Honorable Chief Justice Paul Reiber, Supreme Court of Vermont, 2006

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Education

  • Vermont Law School, J.D., cum laude, 2006
  • Centre College, B.S., 1998

Bar Admissions

  • Georgia

Court Admissions

  • U.S. Court of Appeals for the District of Columbia
  • U.S. Court of Appeals for the Eleventh Circuit
  • U.S. District Court for the Northern District of Georgia
  • U.S. District Court for the Middle District of Georgia
  • Supreme Court of Georgia
  • Georgia Court of Appeals
  • Superior Court of Fulton County