American Bar Association
 
Environmental Transactions and Brownfields

Environmental Transactions and Brownfields


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Message From the Chair



Welcome to the webpage of the Environmental Transactions and Brownfields Committee, fondly referred to as ETAB.




According to our official description, ETAB “works on environmental issues that arise in business, energy or real estate transactions, including M&A deals, asset-based transactions, fossil and renewable energy projects, and remediation and redevelopment of brownfields. Substantive areas include: liability protection, transfer and apportionment; parent/successor liability; lender liability; insurance; incentive programs (e.g., VCPs, BCPs, S-RECs, TIFs); deal structure and finance.”




As you can see, this is a pretty broad list of substantive areas, not to mention acronyms. The core issues of our committee – deals and Brownfields – are found throughout the country, regardless of geography or jurisdiction. Every deal is different, and every Brownfield has its own challenges. And we like it that way.




As I noted in my first “chair column” for our newsletter, this breadth of topic and practitioner is one of the strengths of ETAB. My goal as chair is to encourage the exchange of ideas from lawyers from all across the country and from all different types of practice as we come together to figure out a better way to get deals done and Brownfields remediated and redeveloped.




In the coming months, we will increasing the resources available on this web-page. We will also be letting you know about upcoming webinars and committee calls on topics of interest to ETAB members. Let us know what matters to you and what you want to talk about. Let us know how this webpage can be more useful. Let us know what is working and what isn’t. This is your committee, and we want to be relevant to what you do on a daily basis.




My email is pelkow@rc.com. Thanks for being an ETAB member, for checking out the ETAB webpage, and for sharing your thoughts.




Pamela Elkow
2014-2015 Chair, Environmental Transactions and Brownfields Committee
ABA Section of Environment, Energy, and Resources


 


Committee Description


The ETAB Committee works on environmental issues that arise in business, energy or real estate transactions, including M&A deals, asset-based transactions, fossil and renewable energy projects, and remediation and redevelopment of brownfields. Substantive areas include: liability protection, transfer and apportionment; parent/successor liability; lender liability; insurance; incentive programs (e.g., VCPs, BCPs, S-RECs, TIFs); deal structure and finance.


Hot News

05/01/2015 - Do Legal Fines Lead to the Cleanup of Sites?

This year Duke Energy’s settlements and fines currently around $300 million from a combination of state claims, federal claims, and claims from local environmental non-governmental organizations. For example, Duke Energy was fined for leaking coal ash and other wastewater out of Duke's Sutton Steam Station in Wilmington, North Carolina or the Dan River spill. According to Catawba Riverkeeper Sam Perkins, “while these fines might seem great, they, substantively, are lacking because they do nothing to secure cleanup for a lot of these sites[.]" There are several lawsuits currently pending against Duke Energy.

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05/01/2015 - More energy efficiency, cleaner power by 2025

While speaking at an electrician-training center in the Detroit suburb of Warren, Gov. Rick Snyder advocated rewriting Michigan’s energy laws. Gov. Synder vocalized that he plans to more aggressively promote energy-efficiency programs and encourage utilities to replace and retire coal-fired plants with an energy portfolio comprised of natural gas and renewable sources. This would not be a requirement, but the state aspires to increased energy production of 11 to 24 percent by 2025 from a mixed energy portfolio comprised of renewables and natural gas. Gov. Synder plans to leave intact the current renewable energy portfolio standard that requires that 10 percent of power be derived from renewable sources.

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05/01/2015 - SolarCity Expands to Microgrids Using Tesla Batteries

SolarCity, out of San Mateo, California, is one of the nation’s largest rooftop photovoltaic installers and producers. The company is currently expanding its business model to include batteries that can be implemented in community microgrids. Their target business areas are towns and cities that might experience frequent power outages, such as rural areas lacking reliability and cities prone to earthquakes and hurricanes. While power would also be available for daily use, SolarCity’s main focus is energy generation for emergencies. SolarCity is striving to enter the market with a novel product that is less expensive than its larger rival companies. SolarCity will work closely with business partner, Tesla Motors Inc., an innovative leader in large-scale battery technology production.

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05/01/2015 - Tariffs on Chinese Solar Protects Canadian Solar Panel Market, but could Increase Renewable Energy Costs

Canada Border Services Agency (“CBSA”), recently concluded that China has been violating international trade agreements by dumping cheap, nationally subsidized solar panels onto the Canadian market. Although the final verdict is yet to come, the CBSA’s preliminary decision imposes immediate provisional tariffs. The severity of these tariffs ranges from 9 to 286 percent for all Chinese solar panel exporters. Tariffs related to Chinese photovoltaic dumping has split the solar industry. The Alberta renewable energy sector would like to continue to buy cheap Chinese manufactured panels, but local Canadian photovoltaic manufacturers cannot compete with their Chinese counterparts.

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05/01/2015 - New York Amends and Extends Brownfield Cleanup Program

After a two-year effort to amend and expand the New York Brownfield Cleanup Program (BCP), Governor Andrew Cuomo and the New York State Legislature came to an agreement eight months prior to when the tax and credit eligibility under the program would have otherwise expired. The amendments to the BCP include the selection of qualified program applicants based on Tangible Property Tax Credit (TPCC) Gates, the expansion of eligibility to include RCRA sites, the clarification of the Brownfield Site definition, and the increase of development tax credits for qualifying sites. However, new limits on credits were also agreed to, including the restriction of development credits to include costs “necessary” to a site’s remediation and qualification for a Certificate of Completion.

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05/01/2015 - Summary Judgment on Several CERCLA claims in Coppola v. Smith

This environmental law case arises from the chemical contamination of property surrounding a dry cleaning company. Plaintiffs brought action against inter alia Martin and Martin Properties, LLS (“M&M”), a local real estate investment company that in 1995 had purchased property that was entered for CERCLA. After the Court dismissed several prior complaints, the Court now ruled on Defendant’s motion for summary judgment, which was granted on certain issues but otherwise denied. With respect to the CERCLA claims made, the Court rule in favor of M&M on the issue of “sole cause,” finding that the contamination was caused by acts of other third parties and was not the result of M&M’s conduct. It also ruled in favor of M&M on the issue of due care. However, the Court determined that summary judgment was improper on the issue of whether an “appropriate inquiry” was made.

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05/01/2015 - Push for Improved Brownfield Redevelopment in Oregon

The Oregon Brownfield Coalition is pushing the Oregon legislature to fund the cleanup of thousands of brownfield sites across the state. There are three measures the group is fighting for: funding for cleanups, a tax credit incentive program, and authority for municipal governments to create land banks. These efforts are culminating in two bills, and the spokesperson for the group is optimistic for their success.

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05/01/2015 - Cuomo Announces Designation of Twelve New Brownfield Opportunity Areas in New York State

Governor Andrew M. Cuomo designated twelve brownfield opportunity areas in dormant and blighted areas across New York State. The designation puts the selected sites on a fast track and provides additional state resources. It also brings together community and municipal leaders in the development plan. The selected sites include a 132-acre area near the rail station in Jamaica Queens, which has 224 potential brownfield sites, as well as a 200-acre post-industrial property on the Harlem Riverfront in the Bronx.

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05/01/2015 - Apple Moves Solar Projects in China

Apple has developed solar power projects in North Carolina, Arizona, and Nevada, but more recently is planning 40-megawatts of solar power projects in the Sichuan Province in China. Most of Apple’s solar energy products are made in China and Apple will co-own the projects with SunPower, but most of the details of the partnership in the Chinese projects have not been disclosed. Apple has a strong interest in solar energy development, and is becoming similar to Google in its mix of purchasing and developing solar energy whereas other tech companies such as Microsoft and Facebook purchase chose to renewable energy.

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05/01/2015 - Clash Between Solar Power Development Outside Las Vegas and Native American Rights

Fifteen-miles outside of Las Vegas sits the Mojave Desert, home to both the 5-square mile Ivanpah Solar Electric Generating System as well as local Native American tribes. The facility covered desert natural resources, as well as spiritual and cultural resources. In 2010, native elders filed suit with the Department of Interior, Bureau of Land Management, for failure to consult with the tribes prior to the development of the renewable projects. This month, California’s 9th Circuit Court of Appeals heard an appeal, where the main issue discussed was freedom of religion.

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05/01/2015 - Coal Power Projects No Longer Viable in Mahrashtra, Replaced with Plans for Land for Solar Energy Projects

In the Western Indian state of Mahrashtra, the state government planned several coal projects. However, the high transport cost of coal rendered the power plants not cost-effective. Because land had already been acquired, the state government is instead planning solar power plants instead of keeping the acquired land vacant.

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05/01/2015 - Report Released on Wind Energy Employment: Texas and Iowa in the Lead

In a report released on April 15, American Wind Energy Association reported that Iowa’s wind energy industry had employed about 6,000 people in 2014, a 2,000-person increase from 2013. Iowa is second to Texas, which leads the country’s wind energy employment, with 17,000 people employed in the field. Iowa has seen some of the larges wind energy product manufacturing, and has the highest level of energy from wind power in the country.

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Special thanks to Maxine Segarnick, M.S., University of Connecticut School of Law, J.D., Candidate 2016 and Samuel Volet, University of Connecticut School of Law, J.D., Candidate 2016 for providing ETAB with our installment of Hot News.

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Programs, Meetings and Events

Section Events

    Desalination and Water Supply

    05/06/2015-05/06/2015

    Desalination and Water Supply

    The Top Environment, Energy and Resources Developments in 2014

    05/14/2015-05/14/2015

    The Top Environment, Energy and Resources Developments in 2014

    Cybersecurity Summit

    05/18/2015-05/18/2015
    George Washington University Law School
    Washington

    The Department of Homeland Security identifies sixteen Critical Infrastructure sectors in the country. The Section of Environment, Energy, and Resources has selected two sectors for the focus of its May 18th Cyber Summit in Washington, D.C. Industry experts from FERC, NERC, DHS, electric and water ...


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ETAB Links of Interests


Leadership

Chair:

Elkow, Pamela

Committee Roster  


Committee Related Events and Notices

View upcoming committee related events and notices of interest.
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2014-2015 Committee Leadership

View the full roster of Environmental Transactions and Brownfields Committee leadership.
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Brownfields Websites by States

Modified by Romeo Talento on May 5, 2015

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