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Hunton Andrews Kurth LLP

Malcolm C. Weiss

Malcolm C. Weiss

Partner

Expertise

  • Chemicals, Products and Hazardous Materials
  • Air
  • Climate Change Law and Policy
  • Climate Change

WSG Practice Industries

Activity

WSG Leadership

ABA Group
Member

Hunton Andrews Kurth LLP
California, U.S.A.

Profile

Malcolm is well-versed in a wide range of complex environmental law issues. Clients appreciate his forward-looking, practical approach to solving problems.

Malcolm has developed a sophisticated practice covering a wide variety of environmental laws and statutes, and is always ready to assist clients, whether it be with air quality and product/chemical safety or environmental auditing and due diligence. He has gained a broad perspective of the numerous challenges facing companies operating in California, developing particularly in-depth knowledge of California’s air quality laws, Proposition 65 and the California Environmental Quality Act (CEQA), as well as valuable insights on climate change and contaminated properties issues specific to California’s legal market.

He also represents clients on issues such as facility permitting and closure, emissions trading, environmental insurance and consumer product safety matters.

Malcolm’s clients appreciate his business-savvy approach to helping them secure permitting to build or modify facilities, navigate rulemaking processes, understand and comply with complex regulatory programs, conduct emissions trades (including carbon), challenge agency enforcement actions and defend against citizen suits. His advice to clients helps them resolve disputes, understand environmental laws and plan confidently for the future.

His clients include large and small companies in the energy, oil, industrial minerals, manufacturing, aerospace, real estate, automotive, hospitality, and financial sectors and trade associations.

Malcolm began his career at the US Environmental Protection Agency’s headquarters in Washington, DC. He left EPA to co-found AER*X, the nation’s first emissions trading consulting and brokerage firm assisting clients to monetize environmental credits. Subsequently, Malcolm opened AER*X/RMT’s (an environmental and engineering consulting firm) first California office to more effectively and efficiently service client needs.

Relevant Experience

  • Regulatory Agencies: Represents a broad array of clients before local, regional, state and federal agencies in permitting projects/facilities, transactional due diligence, defending enforcement actions, compliance matters, seeking variances and rulemaking hearings. He has particularly solid, long-standing relationships with staff and management at South Coast Air Management District (SCAQMD) and California Air Resources Board (CARB).
  • Regulatory Challenges: Leading role in strategizing approaches substantively impacting rulemaking outcomes and, when needed, challenging regulations adopted by local and state agencies in court. Challenges have been based on substantive and procedural deficiencies in the adoption process and, in some cases, as the regulation is applied in particular circumstances.
  • Enforcement Defense: Joint and individual representation of multiple construction and industrial materials industry clients to defend local air agency enforcement allegations. The matters concluded with minor penalties, but also a requirement that the agency beneficially amend specified regulations.
  • Emissions Trading: Actively engaged in emissions trading issues, including generating, certifying and preserving emission reduction credits (ERCs), and negotiating and documenting transactions, including carbon credits.
  • California’s Proposition 65: Innovatively represents trade associations and their members, industrial facilities, large and small manufacturers, distributors and retailers in relation to copious claims brought by the California Attorney General local prosecutors, and private plaintiffs to defend against alleged consumer products, occupational and environmental exposures. Malcolm counsels clients on risk management, testing and systems to comply with Proposition 65.
  • Migratory Bird Treaty Act: Handled all aspects of a multi-agency (local, regional, state and federal) investigation pertaining to a large waterfowl and fish die-off resulting in no enforcement action against client.
  • Energy and Alternative Energy: Lead and supporting counsel on various energy projects involving siting, licensing, certification (California Energy Commission) and compliance. Projects include natural gas, LNG, bio-mass, pump water storage, landfill gas, coal, wind and geothermal facilities.
  • Due Diligence: Simultaneously managed five environmental/ engineering consulting firms conducting extensive environmental assessments of 250+ properties in multiple countries, resulting in $1.1 billion transaction.
  • Western States Petroleum Association: Part of the outside General Counsel team representing WSPA on a variety of air, fuels and water issues.
  • Emergency Response: Leads and continues to supervise a team of lawyers and client staff concerning District Attorney’s allegations to resolve alleged illegal disposal and transport of hazardous wastes from more than 180 retail stores across California.
  • Product Safety: Frequently advise clients on Consumer Product Safety Commission (CPSC) requirements, including Consumer Protection Safety Improvement Act (CPSIA), Federal Hazardous Substances Act and Flammable Fabrics Act and pesticides, pesticide products, and antimicrobial claims. This also involves assisting clients with product labeling.

Sample Litigation

  • Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (Cal. App. 4th Circuit) (2006).
  • Consumer Def. Group v. Rental Housing. Indus. Members (Cal. App. 4th Circuit) (2006).
  • PSC Geothermal Services Co. v. Superior Court, 31 Cal.Rptr.2d 213 (1994) (concerning District Attorney’s search and seizure of environmental consultant files).
  • The Steel Co. v. Citizen For A Better Environment, Amicus Curiae Brief, 523 U.S. 83, (1998).

Bar Admissions

  • California

Education

BA, University of California, Santa Barbara, Environmental Studies and Political Science, 1979
Areas of Practice

Air | Chemicals, Products and Hazardous Materials | Climate Change | Climate Change Law and Policy | Cosmetics | Energy | Energy and Environmental Litigation | Energy Litigation | Environmental | Environmental Compliance, Litigation and Defense | Extractive Industries: Mining & Mineral Processing, Oil & Gas | International Renewable Energy and Clean Power | Land Use | Mining, Petroleum and Related Chemicals | Renewable Energy | Renewable Energy and Clean Power | Retail | Waste

Professional Career

Significant Accomplishments

  • Regulatory Agencies: Malcolm represents a broad array of clients before local, regional, state and federal agencies in permitting projects/facilities, defending enforcement actions, compliance matters, seeking variances and at rulemaking hearings.
  • Regulatory Challenges: Malcolm has taken the lead role in strategizing approaches substantively impacting rulemaking outcomes and, when needed, challenging regulations adopted by local and state agencies in court. Challenges have been based on substantive and procedural deficiencies in the adoption process and in some cases as the regulation is applied in particular circumstances.
  • California's Proposition 65: Innovatively represents trade associations and their members, industrial facilities, large and small manufacturers, distributors and retailers relating to copious claims brought by the California Attorney General local prosecutors, and private plaintiffs to defend against alleged consumer products, occupational and environmental exposures. Malcolm counsels clients on risk management, testing and systems to comply with Proposition 65.
  • Energy and Alternative Energy: Lead and supporting counsel on various energy projects involving siting, licensing, certification (California Energy Commission) and compliance. Projects include natural gas, bio-mass, pump water storage, landfill gas, coal, wind and geothermal. 
  • Product Safety: Frequently advise clients on CPSC requirements including CPSIA, Federal Hazardous Substances Act and Flammable Fabrics Act and pesticides, pesticide products, and antimicrobial claims. Assists clients with product labeling. 
  • Emissions Trading: Actively engaged in emissions trading issues, including generating, certifying and preserving emission reduction credits (ERCs), negotiating and documenting transactions, including carbon credits. 
  • Handled all aspects of a multi-agency (local, regional, state and federal) investigation pertaining to a large waterfowl and fish die-off resulting in no enforcement action against client. 
  • Joint and individual representation of multiple construction and industrial materials industry clients to defend local air agency enforcement allegations. Matters concluded with minor penalties, but also a requirement that the agency beneficially amend specified regulations. 
  • Simultaneously managed five environmental/engineering consulting firms conducting extensive environmental; assessments of approximately 250 properties in multiple countries. Necessary to close a $1,100,000,000 transaction. 
  • Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (Cal. App. 4th Circuit) (2006). 
  • Consumer Def. Group v. Rental Housing. Indus. Members (Cal. App. 4th Circuit) (2006). 
  • PSC Geothermal Services Co. v. Superior Court, 31 Cal.Rptr.2d 213 (1994) (concerning District Attorney's search and seizure of environmental consultant files). 
  • The Steel Co. v. Citizen For A Better Environment, Amicus Curiae Brief, 523 U.S. 83, (1998).


Professional Associations

  • Founding Member, Environmental Auditing Roundtable
  • Member and Past Vice-Chair, Section on Environment, Energy and Resources, American Bar Association, 1997-1998
  • Chair, Environmental Law Section, 1998-1999; Chair, Air Quality Sub-Section, 1994-1995, Los Angeles County Bar Association
  • Board Member, Prop. 65 Clearinghouse Advisory Board

Professional Activities and Experience

  • 2017 Chambers USA Environment Law Firm of the Year
  • Selected as a Super Lawyer for Environmental Law, California Lawyer magazine, 2013-2018. A description of the selection methodology can be found on Super Lawyers’ webpage.
  • AV® Preeminent™ Peer Review Rated, Martindale-Hubbell. A description of the selection methodology can be found on Martindale-Hubbell’s webpage.

Articles

Impact of CA Prop. 65 on Manufacturers and How They Can Use the New "Safe Harbor" Warning Provisions That Became Operative
Hunton Andrews Kurth LLP, September 2018

California’s “Prop. 65”1 is the law responsible for the ubiquitous chemical warning labels and signs that California consumers encounter on a daily basis. At its core, Prop. 65 prohibits businesses with 10 or more employees from knowingly and intentionally exposing Californian’s to chemicals known to the State of California to cause cancer or reproductive harm without first providing them a “clear and reasonable” warning...

Retail Industry on High Alert After $289 Million Glyphosate Verdict Against Monsanto
Hunton Andrews Kurth LLP, September 2018

Weeks after a federal judge called the science behind the alleged carcinogenicity of glyphosate “shaky,” a California state court jury hammered Monsanto with a $289 million verdict, connecting a former groundskeeper’s non-Hodgkin’s lymphoma to his exposure to the Roundup® chemical. Earlier this year the verdict in Johnson v. Monsanto Co., No...

Additional Articles

  • State's Greenhouse Gas Reduction Plan Dealt Setback, Daily Journal
  • Coping with the South Coast Air Quality Management District's New `New Source Review' Rule, published in proceedings of the Air & Waste Management Association's 84th Annual Meeting, Vancouver, British Columbia
  • Facility Closures and Sales: Legal Requirements and Profit Opportunities, published for the International Congress on Hazardous Materials Management
  • California’s cap and trade regulations: Will they survive long enough to make history?, Daily Journal
  • Impact of CA Prop. 65 on Manufacturers and How They Can Use the New “Safe Harbor” Warning Provisions That Became Operative on August 30, 2018, Industry Today
  • Hodgepodge of Local Climate Laws Challenges Cos., Law 360
  • Roundup Warning Label Ruling Less Surprising Than It Seems, Law360
  • Issues of Confidentiality and Disclosure in Environmental Auditing, prepared while on staff at US EPA, Office of Planning, Policy & Evaluation, Regulatory Reform Staff
  • Emissions Trading Guidance Document For Trading In Oregon, Document for Oregon Economic Development Department and Department of Environmental Quality
  • Emission Reduction Credits: Who Pays Just Compensation? A Takings Analyses, Student Paper, Northwestern School of Law of Lewis and Clark College
  • California Coffee Could Be Exempt from Cancer Warnings, Food Quality & Safety
  • Chapter 4 Section 13: REACH's Impact in the Rest of the World, The European Union REACH Regulation for Chemicals: Law and Practice, Oxford University Press
  • Proposition 65: New Developments, New Problems, Law360
  • California's cap and trade regulations: Maybe there's a future in cow flatulence after all, Daily Journal
  • Prop 65 Amendments Affecting Retail, 2016 Retail Industry Year in Review, Hunton & Williams
  • 3 Takeaways Squeezed Out of Juicer’s Insurance Battle, Law360
  • How To Avoid Getting Squeezed Out Of Coverage, Law360

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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