Newsletter of the ABA Business Law Section Environmental Committee
  Environmental and
  Energy Business Law Reporter
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Notes from the Chair

Featured Articles
  Effective Environmental Due Diligence in the Transactional Context: 10 Basic Practice Points
  Climate Change Nuisance Litigation: The Tip of the Melting Iceberg or a Flash in the Pan
  Creating a Results-Focused Sustainability Program for Your Business
  As Times (and the Environment) Change, So Does Environmental Insurance
  Lender Liability Year-In-Review: 2010
  Environmental Settlements in Bankruptcy: Practice Pointers for the Business Lawyer
  Renewable Energy Opportunities and Environmental Challenges

Editorial Board:

Issue Editor:
  Cynthia Retallick
    TRC Solutions

Newsletter Vice-Chair:
  Bernie Hawkins
    Nelson Mullins Riley & Scarborough

Editors:
  Sara Bazemore
  Lucie Cohen

    Nelson Mullins Riley & Scarborough
  Notes from the Chair
   
Lawrence Schnapf, Chair
Lawrence Schnapf, Chair
Environmental, Energy and Natural Resources Law Committee
ABA Business Law Section


A continuing complaint of environmental lawyers involved in business and real estate transactions is that they are frequently brought into a deal at the last minute after the business deal has been negotiated and the contract has been drafted. Often times, a real estate or corporate lawyer will contact ask the environmental lawyer to take a quick look at an environmental report that is "clean" or just make sure there are no "deal killers." Indeed, this practice is so commonplace that I once drafted the Ten Commandments with the first being "Don't Wait To Contact the Environmental Lawyer Until The Night Before the Closing."

Sometimes, the deal lawyers in a firm do not contact their environmental colleagues because they do not recognize there is an environmental issue. Other times, the "business people" do not want to involve the environmental lawyers because they fear that they will kill the deal. The irony is that environmental lawyers have more tools in their toolbox now to address environmental issues if the issues are identified and addressed early enough in the deal negotiations.

In this issue, we illustrate some of the ways that environmental lawyers can actually help extract value in transactions. Our issue editor, Cynthia Retallick, has done a wonderful job of assembling an outstanding roster of experienced practitioners who have written cutting edge pieces on many of the key environmental issues encountered in transactions.

This issue illustrates how environmental lawyers in general and our committee in particular can serve as an important resource to business lawyers. During the past year, our committee has hosted a highly successful environmental law basics webinar series that was designed for business lawyers and environmental lawyers who needed a refresher course. At the spring meeting, we sponsored a program on identifying and allocating environmental liabilities in transactions. This summer, we will be hosting a program that will focus on drafting and negotiating environmental issues in business transactions.

Speaking of our committee, we have some exciting news to announce. First, our current program vice chair, David Roth, has been approved to assume the reins of the committee beginning with the summer meeting. David has done a wonderful job reviving our committee's programming and interaction with other Business Law Sections.

I am also pleased to announce that our committee book "Environmental Issues in Business Transactions" is in the final galley proofing stage. The book will be published in time for the summer meeting. Thanks to all of our authors and editors for their hard work and outstanding contributions.

The next committee project will be a forms project where we will cobble together examples of environmental provisions that are used for a wide range of contracts and deal structures. This project would be an excellent opportunity for younger lawyers to learn about contract drafting and negotiating. If you are interested in working on this project, please let me know.

Finally, by the time David Roth takes over as committee chair, we will have a new committee name that will be less a mouthful and more memorable than the current name. Look out for the announcement over the coming weeks.

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  Featured Articles
   
Effective Environmental Due Diligence in the Transactional Context: 10 Basic Practice Points
David E. Roth, Esq. and Molly Loughney Melius, Esq.
Being an effective environmental business lawyer involves interfacing between clients and consultants. Many sophisticated businesspeople are not well versed in the specialized language of environmental issues or with the peculiar mechanics of environmental due diligence. Moreover, in the transactional context, the lead corporate lawyer, who often sits at the apex of the legal team, is often equally unaware—except, perhaps on a general level—of the environmental landscape. Accordingly, within the "deal team," the environmental business lawyer must be equal parts educator, hand-holder, Wikipedia, advocate, and negotiator. In this article, we discuss ten discrete issues that we, as environmental business lawyers, encounter with some frequency. The list is, by no means, exhaustive, but it hits a number of the highpoints.

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Climate Change Nuisance Litigation: The Tip of the Melting Iceberg or a Flash in the Pan
Steven M. Siros, Esq.
The issue of global warming and the impact it has on the climate has rapidly moved from the legislative to the judicial and executive arenas. Congress' continuing inability to craft comprehensive federal climate regulations has resulted in plaintiffs increasingly turning to the courts to obtain redress for perceived harms caused by climate change. In 2004, states, cities, land owners, and land trusts began to bring suits against oil, energy, and utility companies for nuisance, alleging that these companies' greenhouse gas ("GHG") emissions caused or will cause climate change, which has injured or will adversely affect these plaintiffs. In the district courts, these claims were typically dismissed on political question and standing grounds. On appeal, the results have been mixed and one of these cases has now reached the United States Supreme Court. The Court's decision will have far-reaching ramifications and should answer the question of whether climate change nuisance litigation represents the tip of a melting iceberg or is merely a flash in the proverbial litigation pan.

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Creating a Results-Focused Sustainability Program for Your Business
Pamela K. Elkow, Esq. and Kirstin M. Etela, Esq.
In the uncertain arena of climate change legislation, many companies recognize that the corporate world must lead on this issue because the federal government, paralyzed by politics, cannot. Pressure from shareholders and consumers is increasing, and EPA continues to move forward with regulations. State programs also continue, perhaps with more force and urgency. Companies are not waiting. Instead, they are recognizing cost savings and efficiencies, responding to various state (and international) requirements with a company-wide sustainability plan, and are prepared for the federal government to catch up. So, how do your clients put themselves in the same place? Our clients have asked the same question.

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As Times (and the Environment) Change, So Does Environmental Insurance
Robin Kelliher, Esq. and Michael Balmer, Esq.
The first-generation environmental insurance policies were developed to fill the gap created by the introduction of "pollution exclusions" under commercial general liability (GL or CGL) policies in the 1980s. Initially these environmental policies were used to address more traditional environmental exposures tied to operations, and their purchase was driven in large part by statutory requirements.

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Lender Liability Year-In-Review: 2010
Larry Schnapf, Esq.
With the country still reeling from the effects of the Great Recession and suffering from unprecedented levels of foreclosures, financial institutions have become popular targets in lawsuits seeking to share the pain of busted transactions. Not surprisingly, lenders were involved in a number of notable environmental lawsuits in 2010. This article will review those cases and provide some lessons learned for lawyers representing lenders with sites that have environmental issues.

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Environmental Settlements in Bankruptcy: Practice Pointers for the Business Lawyer
Jeanne T. Cohn-Connor, Esq.
For business lawyers, the intersection of environmental law and bankruptcy law raises complex legal issues, replete with the fast-paced deadlines and requirements imposed by the bankruptcy process. When settling a case in bankruptcy that involves a substantial number of contaminated properties, there are many issues that must be resolved. This paper will focus on both the bankruptcy process and how that process impacts environmental settlements.

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Renewable Energy Opportunities and Environmental Challenges
Stephen J. Humes, Esq.
Never before have so many economic incentives and renewable energy opportunities lined up for commercial and industry energy consumers especially throughout the Northeast region as businesses consider ways to improve energy reliability, independence and sustainability. For the solar energy industry in particular, which has struggled with higher production costs, renewed tax breaks and more competitive product pricing mean great opportunities for consumers. For energy and environmental lawyers supporting these projects, legal issues include negotiating off-take contracts and pursuing land use and siting approvals while addressing potential adverse environmental impacts.

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