The Firm’s attorneys have broad experience in transaction structuring, negotiation, and documentation concerning environmental liabilities and contaminated properties, representing both buyers and sellers across the United States. Importantly, the Firm’s attorneys also possess uncommon and extensive experience with the application and negotiation of environmental risk management tools to transactions involving contaminated properties and environmental risk transfer and management, including Brownfield redevelopment. With the far-reaching depth of experience gained by the Firm’s attorneys, we are able to cost-effectively identify and assess the environmental risks attendant to specific transactions and craft narrowly-tailored risk management strategies and tools focused on the specific transaction and the client’s business objectives and risk tolerance. These tools have included traditional tools such as contractual indemnities, environmental escrow accounts, and purchase price deductions, and more progressive tools such as environmental insurance, trusts, and third-party environmental liability transfer.
The Firm’s experience with environmental insurance and third party environmental liability transfer is extensive. The Firm’s attorneys have participated in transactions involving environmental insurance ranging from combined finite cost-cap (coverage for known conditions) and PLL coverage (coverage for unknown, pre-existing and newly-created conditions) with integrated coverage for bodily-injury and property damage, including Natural Resource Damage claims, to more focused insurance programs addressing only a subset of risks while other risk management tools are employed against other risks. The Firm’s attorneys have participated in every step of the insurance placement, working closely with the client and the insurer in the underwriting process to ensure a tightly underwritten policy through detailed technical, legal, and regulatory dialogue regarding site-specific risks; negotiating key financial terms such as premiums, limits, retentions, and attachment points; and negotiating policy terms, exclusions, and endorsements, including in many cases manuscripted policies specifically developed and negotiated for the specific transaction.
Similarly, the Firm’s attorneys possess a unique understanding of the third-party liability transfer market, having participated in a wide range of environmental risk transfer transactions across many contexts. In these transactions, which can occur with or without environmental insurance, a third-party contractually assumes the environmental liabilities and risks associated with an impaired property. The Firm’s attorneys have represented owners, buyers and sellers in transactions involving governmental settlements, operating and non-operating facility transfers, municipal setting designations, and Brownfield and other redevelopments.
Our attorneys also are accustomed to working with a wide range of parties involved in the commercial real estate business, including shopping center owners, real estate investors, property management companies, industrial and residential developers, brokers, landlords and tenants, and others to assist with risk-related environmental matters associated with financing, deed recordations, institutional controls, insurance and evaluation of long-term real property exit strategy options, as well as advising them regarding environmental obligations and claims in the context of bankruptcy proceedings. Our environmental litigation team also has developed a particular niche in representing institutional landowners. From port authorities and governmental bodies to commercial landlords, we have aggressively represented these entities as both plaintiffs and defendants in property damage, nuisance, and cost recovery litigation associated with the release and/or migration of contaminants, historical contamination issues, and other environmental impacts involving real property. We have a history of proven results in contested administrative hearings and in court, making our lawyers well-suited to handle cases for large landowners and governmental or quasi-governmental landowners.
In addition to advising on risk and structure of transactions, the Firm’s attorneys have conducted, directed, and managed due diligence and environmental and health and safety audits across a wide range of facilities and operations and in a myriad of contexts, ranging from ongoing compliance audits to extensive due diligence efforts attendant to the sale of the largest of industrial facilities. In this context, the Firm’s attorneys work closely with and, where called upon, direct and manage environmental consultants and other environmental and health and safety professionals to produce a comprehensive and robust due diligence or audit result, empowering the client with the information necessary to successfully meet its business objectives.