The Impact of Environmental Law on Real Estate and Business Transactions Brownfields and Beyond
Why Attend?
Featuring:
Brownfields redevelopment programs and projects and the latest on transaction-triggered laws and institutional controls
Effect of federal Superfund law amendments providing liability relief and expanding funding for Brownfields work, and resulting regulatory developments
The latest environmental insurance products available for Brownfields and conventional property redevelopment
Contractual allocation of environmental risks in transactions and case law developments
Pre-acquisition and pre-development due diligence strategies
The view from EPA on Brownfields incentives, effect of the 2002 CERCLA amendments, the new "all appropriate inquiry" (AAI) rule, and agency initiatives
Insurance policies as crucial sources for recovery of environmental costs
Disclosure of environmental liabilities, including SEC obligations and auditing
Negotiation skills and strategies, with an emphasis on practical approaches
What You Will Learn
With the ever-increasing sophistication of businesses and practitioners in addressing environmental issues in transactions, Brownfields redevelopment, and post-transaction concerns, this long-standing annual advanced course of study, comprising 12 full hours of instruction, continues to generate keen interest.
The course materials remain comprehensive in scope. The presentations examine the latest developments and trends.
The faculty explores the multifaceted transactional and redevelopment dilemmas posed by environmental laws, post-closing liabilities, and regulatory obstacles to development, and offers practical solutions.
Time is reserved throughout the program to address written questions submitted by the registrants. Two special question-and-answer sessions are scheduled.
Planning Chairs
David B. Farer, Farer Fersko, P.A., Westfield, New Jersey
Faculty
Amy L. Edwards, Holland & Knight LLP, Washington, D.C.
Rob Kirsch, Wilmer Cutler Pickering Hale and Dorr LLP, Boston
Gene A. Lucero, Latham & Watkins L.L.P., Los Angeles
Sharon M. Mattox, Vinson & Elkins LLP, Houston
John L. Payne, P.E., The Payne Firm, Inc., Cincinnati
Eric Schaaf, Director, Office of Regional Counsel, Region 2, U.S. Environmental Protection Agency, New York
Ann M. Waeger, Farer Fersko, P.A., Westfield, New Jersey
Note: The discussions include at least one full hour on ethics and professional responsibility issues, accepted as such by most, but not all, MCLE jurisdictions.
Program Schedule
Thursday, October 12, 2006
- 7:50 a.m. Registration and Continental Breakfast
- 8:50 a.m. Introductory Remarks and Course Overview
- 9:00 a.m. Liability under Federal Law for Ownership or Acquisition of Contaminated Property: Latest Developments — Mr. Lucero
- Liability of landowners for contamination under federal laws such as CERCLA and RCRA; latest developments on the breadth of such liability and the defenses available; effect of 2002 Superfund/Brownfields amendments; private party causes of action and defenses to such actions; predecessor and successor liability; latest case law on recovery of cleanup costs from third parties; ethical considerations
- 10:15 a.m. Networking Break
- 10:30 a.m. Brownfields Redevelopment Initiatives and Transaction-Triggered Environmental Laws: Latest Developments — Mr. Farer
- Federal and state initiatives and programs for acquisition and redevelopment of Brownfields and other contaminated properties; use of institutional controls (such as deed notices) and engineering controls (such as capping) as alternatives to cleanups; economic incentives such as tax abatements; latest developments on the state transfer law scene
- 11:30 a.m. Contractual Allocation of Environmental Risk in Transactions: Case Law Developments under CERCLA — Messrs. Farer and Lucero
- Analysis of latest case law around the country on contractual allocation of CERCLA liability; effectiveness of releases and indemnifications; court interpretations of clauses from sale agreements, leases, transporter agreements, settlements, corporate by-laws, and services agreements
- 12:30 p.m. Lunch Break
- 2:00 p.m. Availability of Environmental Insurance for Property Acquisition and Redevelopment — Ms. Waeger
- The role of the new insurance products as an element in structuring deals for acquisition and/or redevelopment of Brownfields and other commercial or industrial properties; latest developments in available types of coverage
- 2:45 p.m. Institutional Controls — Ms. Edwards
- The use of institutional controls (ICs), such as restrictive covenants, deed notices, and environmental covenants, to guide rights and obligations of affected parties and governmental authorities where contaminants in excess of prevailing standards are allowed to remain in place at properties; need for and status of adoption of the Uniform Environmental Covenants Act (UECA) in various states; federal, state, local, and private efforts to enhance IC tracking and to address long-term stewardship concerns
- 3:30 p.m. Networking Break
- 3:45 p.m. Non-Disclosure/Limited Disclosure of Environmental Liabilities in Transactions: Common Law Responses — Ms. Mattox
- Responses in representative jurisdictions around the country to non-disclosure or limited disclosure of environmental liabilities in transactions; viability of "as is" clauses that explicitly limit or negate the responsibility of a seller to disclose known or suspected conditions; case law on non-disclosure; non-reliance language; issues of materiality and public policy; ethical issues
- 4:30 p.m. Environmental Due Diligence: Assessing Exposures, Costs, and Strategies; Single and Multi-Site Approaches; Emerging Issues, including Brownfields Program Issues; AAI; and Effects of Accelerating the Process — Mr. Payne
- The value of information developed in multi-phase environmental audits to predict potential cleanup costs and timeframes; evaluating this information in the context of the transaction; comparing the efficacy, price, and schedule effects of alternative cleanup strategies; practical problems in conducting due diligence on an accelerated basis; framework for executing due diligence, including post-transaction integration and indemnity minefield; case studies; ethical considerations
- 5:30 p.m. Adjournment for the Day
Friday, October 13, 2006
- 8:00 a.m. Continental Breakfast
- 8:30 a.m. The View from EPA — Mr. Schaaf
- The government's implementation of the Small Business Liability Relief and Brownfields Revitalization Act of 2002, including the negotiated rulemaking on "all appropriate inquiry"; administration initiatives; EPA's Brownfields program; implementation of institutional controls; compliance and enforcement priorities
- 9:30 a.m. Networking Break
- 9:45 a.m. Hot Topics/Question and Answer Session I — The Faculty
- The faculty highlights several special topics of concern and considers a series of questions compiled from written questions submitted before and during the Course of Study.
- 10:00 a.m. Regulatory Obstacles to Development and Redevelopment: Wetlands and Other Essential Issues — Ms. Mattox
- The ever-increasing importance of targeting wetlands and other water quality restrictions prior to entering into real estate and other commercial transactions; habitat and endangered species issues; obstacles to development posed by wetlands legislation on the federal, state, and local level; other essential land use impediments; ethical issues
- 11:00 a.m. Negotiating Environmental Insurance Policies for Acquisition and Redevelopment of Real Properties — Ms. Waeger, with Messrs. Farer and Payne
- Negotiation of key policy terms in insurance products for acquisition and redevelopment of Brownfields and other commercial and industrial properties; evaluating premiums in light of applicable policy limits, policy term, and exclusions; the value of technical data
- 11:30 a.m. Hot Topics/Question-and-Answer Session II — The Faculty
- 12:00 noon Lunch Break
- 1:30 p.m. Insurance Claims and Recovery for Environmental Cleanup Costs — Ms. Waeger
- Insurance policies as crucial sources for recovery of environmental investigation, cleanup, and defense costs; latest issues on principal bases for claims; owned property exclusion; pollution exclusion and absolute pollution exclusion; trigger of coverage; locating crucial policy information; the claim process; trends and developing case law
- 2:00 p.m. Disclosure of Environmental Liabilities: SEC Obligations, Auditing Standards, and the Effect of Sarbanes-Oxley — Mr. Kirsch
- Obligations to report environmental liabilities pursuant to SEC requirements and auditing principles; the effect of Sarbanes-Oxley on environmental lawyers; the role of environmental counsel in the auditing process; ethical considerations in reporting environmental liabilities
- 2:45 p.m. Networking Break
- 3:00 p.m. Acquisition and Redevelopment of Brownfields Properties: Current Issues/Practical Solutions — The Faculty
- Analysis of key legal and technical obstacles in brownfield transactions; identifying the key hurdles in acquisition and redevelopment of contaminated property; development of transactional and scientific solutions to those hurdles, including use of insurance products; negotiation of proposed contract clauses among parties to transactions and redevelopment project, including consultant agreement and sale agreement; emphasis on practical issues in achieving successfully the goals of the parties
- 4:00 p.m. Adjournment
Total 60-minute hours of instruction: 12
Suggested Prerequisite: Substantial experience in either commercial real estate and business law or environmental law
Educational Objective: Attainment and maintenance of essential skills in targeting and reacting to essential environmental law issues in commercial real estate and business transactions; development of sensitivity as to ethical dilemmas surrounding existence of information concerning tainted property; maintenance of professional competence as a practitioner in a complex area of law
Level of Instruction: Advanced
Here's what registrants have said about this course:
This particular meeting is my favorite CLE because it consistently delivers excellent content and presentations. Meets objectives, a welcome certainty.
I greatly enjoyed the seminar and look forward to attending future courses. The seminar materials are excellent and highly valuable in my practice.
The seminar was one of the best environmental seminars that I have attended. The speakers were not only knowledgeable, but passionate about the subjects. I felt like they enjoyed the subjects and were eager to explore the topics with us. Very well done.
This is by-far one of the most useful CLEs I’ve been to in my legal career.
Topics were very good and timely. Presenters were all extremely knowledgeable. Materials are very thorough/extensive (will be good reference material).
This was one of the better CLEs I have attended. The presenters and the content were very good.
The presenters at this course were excellent, as I expect from ALI-ABA, and I have attended many.
The depth of and breadth of and in some cases encyclopedic knowledge of the speakers is impressive.
