Robert G. McLusky

BIOGRAPHY
Phone: (304) 340-1381 | Fax: (304) 340-1272 | Email: rmclusky@jacksonkelly.com
500 Lee Street East, Suite 1600, Charleston, WV 25301-3202


Robert G. McLusky is a Member in the Firm’s Environmental Practice Group in Charleston, West Virginia. Mr. McLusky's practice focuses on environmental litigation and client counseling in West Virginia and surrounding states. He has represented manufacturing and energy ventures in a broad range of environmental issues. Some of the matters he has handled include:
 

  • Defended Clean Water Act enforcement actions (by EPA and citizen groups) in federal court for Fortune 500 companies
  • Defended Clean Water Act “fill” permits issued to coal, oil and gas and pipeline operators from NEPA and Clean Water Act claims
  • Advised "linear" energy projects (pipeline, wind and coal/highway) on NEPA and Endangered Species Act compliance
  • Defended water, waste and air permits for chemical and manufacturing industries in administrative proceedings — including the first third-party air permit challenge in West Virginia
  • Defended CERCLA cleanup actions
  • Conducted internal investigations of environmental compliance
  • Advised clients on environmental permitting strategies
  • Worked on “Brownfields” projects to rehabilitate contaminated properties

Among the cases in which he has represented industry are:
 

  • Sierra Club v. ICG Hazard, LLC, No. 13-5086 (6th Cir. 2015) (affirming application of Clean Water Act “permit shield” to discharges of selenium in citizen suit)
  • Kentuckians for the Commonwealth, et al. v. U.S. Army Corps of Engineers and Leeco, Inc., No. 13-6153 (6th Cir. 2014) (affirming § 404 fill permit in face of CWA and NEPA challenge)
  • Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (same)
  • Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) (reversing district court decision invalidating a “general” § 404 permit issued by Corps of Engineers)
  • Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (reversing district court decision holding that excess spoil generated by mining industry is not “fill material” subject to § 404 of Clean Water Act)
  • West Virginia Coal Association v. Bragg, 248 F.3d 275 (4th Cir. 2001) (holding state SMCRA authority not subject to federal court jurisdiction to enforce federally-approved state program)
  • U.S. v. Shaffer Equipment Co., 11 F.3d 450 (4th Cir. 1993) (affirming finding of misconduct by EPA in Superfund cost recovery action)
  • U.S. v. Consolidated Rail Corp., 729 F. Supp. 1461 (D. Del. 1990) (treated wood product supplier not responsible as an operator or generator under CERCLA for spilled coal tar at a processing facility even if it purchased entire output of processor)

Mr. McLusky is a 1977 graduate of Colgate University and a 1981 graduate of Washington and Lee University School of Law, where he was an editor of the Law Review. He has been listed in Woodward/White's The Best Lawyers in America® since 1993, is listed in Chambers and Partners in the Natural Resources and Environmental Law practice area, is listed in West Virginia’s Super Lawyers® and is a frequent speaker and writer. Mr. McLusky is a past President of the Energy & Mineral Law Foundation. In the 2011 edition of Chambers USA, Mr. McLusky is widely regarded as "the top environmental lawyer" in West Virginia.

Mr. McLusky has been admitted to the United States Supreme Court; U.S. Circuit Court of Appeals, District of Columbia Circuit; U.S. Circuit Court of Appeals for the Fourth Circuit; U.S. District Court, Northern District of West Virginia; U.S. District Court, Southern District of West Virginia; and the West Virginia Supreme Court.


 

 
Legal Experience
 
1981 - PresentJackson Kelly PLLC
 
Education
 
1981J.D.Washington and Lee University School of Law (VA)
1977B.A.Colgate University (NY)
 
Bar Admissions
 
1981West Virginia

Teaching and Lecturing:
  • See Writings and Publications section

Writings and Publications:
  • "Conventional and Unconventional Warfare:  The Increasing Criminalization of Both Clearly Wrong and Seemingly Ordinary Activities in the Mineral Industries," 36th Annual Energy & Mineral Law Institute, March 2015
  • "Mayfly Mayday:  The West Virginia Legislature Attempts to Redefine Compliance with the Narrative Water Quality Standards Through Senate Bill 562," 115 W.Va. L. Rev. 1031 (2013)
  • "Use of Conductivity to Define Compliance with State Narrative Water Quality Standards," Publication pending in 32nd Annual Energy & Mineral Law Institute
  • “Selenium Issues in the Coal Industry,” 30th Annual Energy & Mineral Law Institute, May 2009
  • “Civil Litigation under the Clean Water Act,” 27th Annual Energy & Mineral Law Institute, May 2007
  • "Valley Fills and the Clean Water Act: The Strange Confluence of the Clean Water Act and SMCRA in Bragg v. Robertson," 20th Annual Energy & Mineral Law Institute, May 2000
  • "Recent Permitting and Enforcement Measures to Combat Acid Mine Drainage - Are They in Contravention of SMCRA?," 17th Annual Eastern Mineral Law Institute, April 1996
  • "Citizens' Suits Under Selected Environmental Statutes," presented as part of the West Virginia University College of Law Continuing Legal Education Series, Feb. 1990
  • "West Virginia Regulation of Coal Mine Subsidence," Eastern Mineral Law Foundation Special Institute, Sept. 1989
  • "Surface Mining Permit Applicant Violator System," presented to the West Virginia Mining and Reclamation Association, 1989

Awards and Honors:
  • EMLF 2015 John L. McClaugherty Award
  • 2013 "Lawyer of the Year" for Mining Law - West Virginia's Best Lawyers
  • 2012 "Lawyer of the Year" for Litigation-Environmental - West Virginia's Best Lawyers
  • 2011 "Lawyer of the Year" for Energy Law - West Virginia's Best Lawyers
  • Listed in the Construction, Real Estate & Environmental Section of Super Lawyers® Business Edition for Environmental, 2013-2015
  • Named in the 2013-2015 editions of West Virginia Super Lawyers® for Environmental Law
  • Selected by his peers for inclusion in The Best Lawyers in America® for Energy Law, Litigation - Environmental, Mining Law and Natural Resources Law, 1993-2017
  • Ranked in Chambers USA, America's Leading Lawyers for Business in the area of Natural Resources: Environmental Law in West Virginia, 2007-2015
  • Rated by Super Lawyers® since 2007
  • 2015 U.S. News - Best Lawyers® Law Firm of the Year - in Mining Law
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