P. STEPHEN GIDIERE III is a partner in the firm’s Environmental and Natural Resources Section and Environmental Litigation Practice Group. His experience and practice cover a wide variety of environmental, natural resources and administrative law topics.

Mr. Gidiere has significant experience litigating civil matters against the federal government and non-governmental organizations in administrative hearings and trial and appellate courts.  He represents businesses, local governments, and trade associations in environmental litigation, including enforcement actions, under federal environmental statutes like the Clean Water Act, Clean Air Act, and the Endangered Species Act, and also in challenges to agency administrative action under those laws. 

    Clean Air Act (CAA)

Mr. Gidiere specializes in litigation under the Clean Air Act. This includes defense of enforcement actions filed by the government and private parties, and also challenges to EPA rulemakings and actions on State Implementation Plans (SIPs). Some of his representative cases under the Clean Air Act include:

• Luminant Generation et al. v. U.S. Environmental Protection Agency, No. 10-60891 (5th Cir. March 26, 2012) - Represented electric generating company in successfully obtaining vacatur and remand of EPA disapproval of Texas SIP revision related to pollution control projects.  [Opening Brief] [Decision] 
• Luminant Generation et al. v. U.S. Environmental Protection Agency, No. 11-60158 (5th Cir. Oct. 24, 2012) - Represented electric generating company in successfully obtaining vacatur and remand of EPA disapproval of Texas SIP revision related to permitting of electric generating facilities. [Opening Brief] [Decision] 
• Sierra Club v. Energy Future Holdings et al., No. 6:12-cv-108 (W.D. Tex.); No. 5:10-cv-156 (E.D. Tex.) – Representing major electric generating company in Clean Air Act citizen suits alleging opacity and particulate matter violations at coal-fueled power plant. 
• Environmental Defense v. Duke Energy Corp., 127 S. Ct. 1423 (2007) – Counsel of record for electric utility industry as amici curiae in review of Clean Air Act enforcement action. [Amicus Brief] [Decision]
• Leavitt v. TVA, 541 U.S. 1030 (2004) – Successfully opposed a petition for writ of certiorari filed by the United States Department of Justice in a Clean Air Act enforcement case. [Brief in Opposition to Cert]
• State of West Virginia v. U.S. Environmental Protection Agency, 362 F.3d 861 (D.C. Cir. 2004) – Represented major utility in challenge to EPA rulemaking on NOx emissions.
• EME Homer City Gen. et al. v. U.S. Environmental Protection Agency, No. 11-1302 (D.C. Cir.) – Part of team representing major Texas generating company in overturning EPA's Cross-State Air Pollution Rule. [Decision]  
• Luminant Generation et al. v. U.S. Environmental Protection Agency, No. 10-60934 (5th Cir.) – Representing major generating company in challenge to EPA disapproval of SIP revision providing affirmative defenses for excess emissions during startup, shutdown and maintenance.
• United States v. Alabama Power Co., 2011 WL 1158037 (N.D. Ala. March 14, 2011); 681 F.Supp. 3d 1292 (N.D. Ala. 2008); 372 F. Supp. 2d 1283 (N.D. Ala. 2005) –Obtained judgment in favor of major electric utility in federal environmental enforcement case involving compliance with the New Source Review provisions of the Clean Air Act.
• McAbee v. Earthgrains, No. 4:03-CV-00070 (N.D. Ala. 2003) – Obtained dismissal of Clean Air Act citizen suit against bakery.
• Sierra Club v. Tennessee Valley Authority, No. 04-15324-HH (11th Cir. 2005) - Represented business associations as amici curiae in request for rehearing in Clean Air Act citizen suit involving "credible evidence rule" and alleged opacity violations. [Amici Brief]
• National Parks Conservation Association v. Tennessee Valley Authority, 502 F.3d 1316 (11th Cir. 2007) - Represented electric utility as amicus curiae supporting affirmance of dismissal of Clean Air Act citizen suit. [Amicus Brief] [Decision] [Brief in Opposition to Cert]

      Clean Water Act (CWA)

Mr. Gidiere also represents businesses and individuals in litigation under the Clean Water Act.  This includes defending NPDES permits and water quality certifications issues under the Clean Water Act and defending enforcement actions by NGOs seeking civil penalties.  Some of his representative cases include:

• Alabama Rivers Alliance v. Alabama Department of Environmental Management, EMC Docket No. 05-14 (2006) -- Represented intervenor in obtaining summary judgment in administrative appeal of Clean Water Act Section 401 water quality certification issued for nine FERC-licensed hydropower projects.  [Decision]
• Alabama Rivers Alliance v. Federal Energy Regulatory Commission, 325 F.3d 290 (D.C. Cir. 2003) – Represented electric utility as intervenor in dispute over applicability of Clean Water Act Section 401.
• Donald Stewart et al. v. Alabama Department of Environmental Management, 03-CV-2007-900475 (Mont.Cty.Cir.Ct.) - Successfully represented landowners in declaratory and injunctive action under Alabama Administrative Procedure Act resulting in consent decree with state environmental agencies requiring Clean Water Act permitting for multi-family development project on Lake Martin.
• Black Warrior Riverkeeper, Inc., et al. v. Alabama Department of Environmental Management & MCoal Corp., EMC Docket No. 10-04 (June 25, 2010) (successfully defended ADEM's issuance of a Clean Water Act NPDES permit to a surface coal mining operation following a week-long administrative evidentiary hearing) [Opinion]
• Tennessee Riverkeeper v. Hope Coal; No. 2:10-cv-03515 (N.D. Ala.) – Successfully obtained dismissal of Clean Water Act citizen suit seeking civil penalties at alabama coal mine. [Order of Dismissal] 

• Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, No. 78:11-cv-03307 (N.D. Ala.) - Defending citizen suit seeking penalties at Alabama coal mine. 

  Endangered Species Act (ESA)

Mr. Gidiere also represents clients on matters involving federal and state natural resource and wildlife agencies, including the U.S. Fish & Wildlife Service (FWS) and the Alabama Department of Conservation and Natural resources. He negotiates conservation agreements under the endangered Species Act (ESA) that allow development projects to move forward. He also assists clients whose activities are the subject of consultation under Section 7 of the ESA and develops grant applications for federal funds to assist private entities in undertaking voluntary conservation efforts to benefit listed species. He assists clients in obtaining permits and certifications under the ESA, the Clean Water Act (CWA), Clean Air act (CAA), and in negotiating penalty orders under those statutes. Some of his representative ESA cases include:

• In re Carolina Power & Light, Yadkin-Pee Dee River Hydroelectric Project, U.S. Coast Guard Docket No. 2007-NMFS-0001 - Successfully represented electric utility in trial-type hearing under Energy Policy Act of 2005 on fishway prescriptions by U.S. Fish & Wildlife Service and National Marine Fisheries Services, resulting in settlement of fish passage issues [Hearing Request] [Brief in Opposition to Agencies' Motions to Dismiss] [Order Denying Agencies' Motions to Dismiss]
• Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244 (11th Cir. 2003) – Successfully represented a business coalition in obtaining reversal of district court decision dismissing challenges to Endangered Species Act listing decision based on lack of standing.
• U.S. Fish & Wildlife Service v. City of Birmingham, No. INV-2008404913 (D.O.I. O.H.A.) – Defending municipality in civil penalty proceeding seeking $2 million penalty under ESA for alleged harm to endangered watercress darters, resulting in settlement of $187,500 in the form of donation to local land trust. [Article to Settlement]

Freedom of Information Act (FOIA)

 Mr. Gidiere is a nationally-recognized expert in the area of open government and freedom of information laws. He is the author of The Federal Information Manual (ABA 2006), a comprehensive book on this subject published by the American Bar Association. The book explains how to litigate claims against the federal government for access to records under the Freedom of Information Act (FOIA) and other statutes and how to protect sensitive records submitted to the government. Mr. Gidiere frequently publishes articles and opinion pieces on current and emerging government information topics. Some of his representative FOIA and Privacy Act cases include:

• City of Birmingham v. U.S. Fish & Wildlife Service, 2:11-cv-00733 (N.D. Ala.) – Represented municipality in FOIA action successfully resulting in release of withheld documents and payment of attorney fees.
• Hygia Health Services, Inc. v. U.S. Food & Drug Admin., No. 2:06-CV-4798 (N.D. Ala. 2006) – Obtained summary judgment ordering release of document claimed by FDA as law enforcement sensitive under FOIA Exemption 7. [Summary Judgment Brief] [Memorandum Opinion] [Order Denying FDA's Motion for Reconsideration]
• Perkins et al. v. U.S. Department of Veterans Affairs et al., Case No. 08-11102-G (11th Cir. 2008) - Represented Vietnam veterans in Privacy Act case against VA for data breach at Birmingham VA facilities involving veterans' personal privacy information. [Principal Brief for Veterans] [Brief for VA] [Reply Brief for Veterans] [Decision] [Petition for Rehearing En Banc] [Petition for Certiorari]

Prior to joining Balch & Bingham LLP, Gidiere served as an attorney-advisor with the United States Department of the Interior in Washington, D.C., where he served as counsel to the U.S. Fish & Wildlife Service, the National Park Service, and the Office of Surface Mining.  He also served as a law clerk to the Honorable Emmett R. Cox of the United States Court of Appeals for the Eleventh Circuit.

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