Environmental Acquisitions, Financings, & Brownfields Projects

Morgan Lewis attorneys counsel clients—in sectors as varied as retail, refining, chemical, technology, aviation, and real estate, among many others—on identifying environmental risks posed by specific transactions and on ways to allocate and minimize those potential liabilities. We assist in managing and conducting due diligence and compliance reviews, and with assessing potential liabilities associated with both on- and offsite contamination. Our services also include evaluating the costs of complying with environmental laws.

As a deal progresses, we negotiate and draft environmental provisions in various agreements, including those relating to purchase and sale, prospective purchaser, site remediation, and brownfields. We counsel clients on transaction-related risks, including successor and legacy liability. While doing so, Morgan Lewis attorneys exercise caution to avoid creating disclosure burdens that extend beyond the parties to the transaction.

Post-transaction, Morgan Lewis helps clients to manage their environmental liabilities and comply with financial assurance obligations required by environmental laws.

Morgan Lewis represents clients involved in the purchase, sale, development, or leasing of brownfields—sites that have experienced contamination from hazardous substances or other pollutants. We negotiate and prepare the contractual documents underlying such transactions, including agreements covering purchase and sale, access, necessary cleanups, allocation of liabilities, and indemnification against losses or damages arising from pre-existing conditions. Regarding brownfields sites and other properties, we assist clients in obtaining insurance coverage to manage risks and to facilitate redevelopment transactions.

We also work with federal, state, and local regulatory authorities on transferring and obtaining environmental permits and licenses. Clients often engage Morgan Lewis to negotiate voluntary cleanup agreements with state regulators involving both the subject site and adjacent land in order to facilitate sales.

A major component of the firm’s environmental transactions practice focuses on the preparation and processing of applications and documents needed to secure public and private financing of environmental improvements through industrial development bonds and other vehicles. We also prepare environmental disclosures in connection with bond indentures, shareholder notifications, and U.S. Securities and Exchange Commission filings. This work includes disclosures relating to climate change issues.

Morgan Lewis closely monitors new sources of funding and tax incentive programs for environmentally related projects, including renewable energy generation and transmission facilities.

Morgan Lewis attorneys work extensively with laws that may have a particular impact on project developments and transactions, including NEPA and state laws such as CEQA and the New Jersey Industrial Site Recovery Act. We advise individuals, partnerships, corporations, and public entities throughout the entire process of complying with these statutes, including the preparation of initial studies; Negative Declarations and Findings of No Significant Impact; Environmental Impact Reports and Environmental Impact Statements; and mitigation and monitoring reports. We also defend clients against legal challenges alleging noncompliance with the procedural or substantive mandates of these laws.

For property developers, corporations, high-technology companies, and owners of energy and industrial plants, we analyze and assist in acquiring and protecting entitlements for all types of real estate development and use, including those on public land. At the local and regional level, our lawyers assist clients in securing approval for needed general plan amendments, specific plans, rezonings, and use permits. They also help to resolve issues arising from subdivision laws, ministerial permits, and matters such as building codes.

After facilities have been bought or sold or equipment has been purchased, commercial disputes implicating environmental concerns can later arise under indemnity, warranty, or other commercial provisions. The impetus may be an environmental disaster stemming from failed equipment or a previously hidden condition, a government investigation about prior conduct, a whistleblower allegation, a citizen suit, or a postclosing audit. When such disputes arise after the deal has closed, we litigate such matters, bringing together the necessary combination of commercial litigation, government enforcement, environmental regulatory, and insurance experience, insuring a skilled and comprehensive approach.