David Berry has over twenty years of transactional, regulatory and litigation experience in environmental, land use/commercial real estate, renewable/alternative energy and occupational safety matters. Prior to joining Smith Anderson in 1998, he worked over five years as an Assistant Attorney General in the North Carolina Department of Justice’s Environmental Division, representing the Divisions of Air Quality, Water Quality, Land Resources, Marine Fisheries, and Parks and Recreation in enforcement, permitting and rulemaking cases. He developed significant environmental litigation experience representing these State environmental agencies in civil penalty and injunctive relief actions, both at the administrative level before the Office of Administrative Hearings and State environmental regulatory boards and in the State’s superior and appellate courts.
David's current practice involves many substantive areas of environmental and land use law, including underground storage tanks, site remediation and redevelopment, water quality, storm water, wetlands, riparian buffers, submerged lands and lakefront development, air quality, and mining, as well as OSHA regulation and enforcement. He regularly counsels clients on regulatory compliance and permitting, evaluating and managing environmental risks, sale and acquisition of contaminated properties, due diligence and contract issues, environmental and OSHA investigations and audits, and public company environmental disclosures. He has extensive experience representing clients before regulatory agencies, in administrative appeals, and judicial proceedings. He has handled a broad range of complex transactions for the purchase, sale, leasing, construction and development of commercial, industrial and public utility properties. His public utility practice experience includes the development of renewable/alternative energy facilities, negotiation of renewable energy power purchase agreements, and renewable energy credit (or “green tag”) contracts, smart grid implementation, coal fly ash beneficiation and re-use projects, major line relocations, easements and encroachments.
Professional & Community Affiliations
- American Bar Association
- Section of Environment, Energy and Resources
- North Carolina Bar Association
- Environment, Energy and Natural Resources Law Section Council (1999-2002), Member (1998-Present)
- Environment, Energy and Natural Resources Law Section Legislative Committee, Co-Chairman (2000-2001)
- Environment, Energy and Natural Resources Law Section Environmental Specialization Committee, Member (2001-2002)
- Wake County/Tenth Judicial District Bar Association
- Member, White Memorial Presbyterian Church
Honors & Awards
- Chambers USA: America’s Leading Business Lawyers, Environmental (2014-2020)
- Best Lawyers®, Environmental Law (2011-2021)
- Best Lawyers®, "Lawyer of the Year," Raleigh Environmental Law (2021)
- Business North Carolina's Legal Elite, Environmental
- Martindale-Hubbell AV Preeminent Rated
- Served as local environmental counsel for Fortune 1000 company that owns and operates large scale waste-to-energy facilities.
- Represented a major convenience store chain for over 20 years in connection with acquisitions, enforcement defense, environmental permitting and private party settlements throughout 14 states.
- Represented an insurance carrier and its insured, a private water company, in defense of a drinking water contamination lawsuit brought by approximately 30 homeowners in Wake County Superior Court. Many of the lawsuit's allegations involved exceedences of the State's groundwater standards and EPA's secondary drinking water standards.
- Assisted a public electric utility in multiple contracts for connecting and permitting of wastewater discharges to local publicly-owned treatment works (POTW).
- Represented a global developer and manufacturer of pharmaceuticals, biopharmaceuticals and agrochemicals in connection with defense of one of the single largest OSHA enforcement actions ever brought by the North Carolina Department of Labor.
- Represented a national food products manufacturer before the North Carolina Environmental Management Commission in its successful renewal of a variance from the State's water quality action level for chloride and National Pollutant Discharge Elimination System (NPDES) permit for its North Carolina facility.
- Served as counsel for the largest electric utility in the United States, providing regulatory counseling and legal assistance with implementing and complying with the North Carolina Renewable Energy and Energy Efficiency Portfolio Standard
- Represented an international privately-held soft drink manufacturer, seller and distributing company in connection with its acquisitions and environmental and OSHA compliance at facilities across the United States.
- Assisted the largest electric utility in the United States for nearly 20 years with acquisitions, dispositions, and regulatory compliance involving the utility's power plant properties, lakes, substations, transmission and distribution projects across North and South Carolina.
- Represented of a national paper product company in connection with its environmental permitting and OSHA compliance at several North Carolina facilities.
- Represented a real estate investment company in its successful opposition to a declaratory ruling request before the North Carolina Environmental Management Commission involving Jordan Lake's watershed boundaries.
News & Publications
- 2021 Best Lawyers® and The Best Lawyers: Ones to Watch Recognize Largest Group of Smith Anderson Lawyers in Firm’s HistoryThe 2021 Best Lawyers®, 08.20.2020
- Chambers USA, 04.23.2020
- Smith Anderson Leads “Best Lawyers®” Rankings with 71 Recognized Lawyers and 11 “Lawyers of the Year” - Most of Any Raleigh Law FirmThe Best Lawyers in America©, 08.20.2019
- Chambers USA, 04.29.2019
- The Best Lawyers in America©, 08.15.2018
- Chambers USA, 05.03.2018
- The Best Lawyers in America©, 08.15.2017
- National Rankings Guide Recognizes Smith Anderson’s Environment and Real Estate Development Practices and Seven Attorneys06.23.2017
- Chambers USA, 05.30.2017
- 2017 The Best Lawyers in America© Guide Recognizes 62 Smith Anderson Lawyers – Most in the Firm’s History08.15.2016
- Chambers USA, 06.01.2016
- 2016 The Best Lawyers in America© Guide Lists 60 Smith Anderson Lawyers – Most in the Firm’s History08.17.2015
- Smith Anderson Announces 49 of its Firm Lawyers are Named a “Best Lawyer” by The Best Lawyers in America® 201308.29.2012
- Smith Anderson Lawyers Speak at N.C. Bar Association’s Environment, Energy and Natural Resources Law Section Annual Meeting04.24.2009
- North Carolina MGM News, August 2010, Vol. 21, No. 3
- Environmental Issues in Construction and editor OSHA chapter, N.C. Construction Law Deskbook03.2010N.C. Bar Association, 5th Edition
- Author, “Unwritten Title Transfers” and “Water Boundaries: What Are Your Rights and Liabilities?”10.17.2002Boundary Law in North Carolina, National Business Institute
- Legislative Update: 1999 Session of the General Assembly11.1999Environmental News, North Carolina Bar Association Environmental and Natural Resources Law Section, Vol. 11, No. 1
Co-Author, "Dealing with Water Shortages Without Stopping Development," Land Use in North Carolina, Law Seminars International, July 24-25, 2008
Co-Author, “Introduction to Biotech: Environmental, Health & Safety Laws Commonly Affecting the Biotechnology Industry,” Emerging Trends in Environmental Law, North Carolina Bar Associations Continuing Legal Education, May 10-11, 2002
- Speaker and Author, "Overview and Implementation of North Carolina’s Renewable Energy and Energy Efficiency Portfolio Standard," NC Bar Association’s Environment, Energy and Natural Resources Law Section Annual Meeting04.2009
- Speaker, "2001 OSHA Update & What to Do When the OSHA Inspector Knocks," Employment and Benefits Law Update at Smith Anderson, Raleigh, N.C.10.2001
- CLE Speaker and Author, "Overview of Federal and State Air Programs."01.2001
- CLE Speaker and Author, "Overview of North Carolina’s Stormwater, Sedimentation and Erosion Control, and Neuse River Basin Buffer Requirements."01.1999
- CLE Speaker and Author, "Clean Air Act Section 112(r) Chemical Accident Release Prevention Program."12.1998
Bar & Court Admissions
- All North Carolina State Courts
- U.S. District Court for the Eastern District of North Carolina
Tulane University, J.D., with Certificate in Environmental Law, 1992
University of North Carolina, B.A., 1985