Our goal is to minimize the client's liability while preserving the business deal.
Commercial and industrial real estate deals often present a dizzying range of environmental issues. How should I perform environmental due diligence before the closing? What are my future environmental liabilities if I purchase the property? Am I retaining environmental liabilities after I sell the property? Do I qualify for applicable legal protections against environmental liability? What public grant or low-interest loan funding might be available to help with site investigation? How can I structure the deal to avoid environmental liabilities for past or existing conditions on the property, or even off the property? What environmental permits will I need for my intended use of the property? What environmental laws will I need to meet for future site operations?
We regularly help clients — whether buyers or sellers — to cut through the tangle of environmental law issues in real property transactions, business asset purchases, mergers, and acquisitions. We guide clients through the process of environmental due diligence, including Phase I and Phase II environmental site assessments. We identify and explain environmental liability risks identified through due diligence. We review environmental assessment reports to ensure they comply with applicable standards for “all appropriate inquiries” — a prerequisite to liability protections under federal environmental law. We draft and negotiate appropriate contract provisions governing allocation of environmental liabilities, such as indemnification and escrow agreements. And we provide guidance on planning for environmental compliance both before and after the deal.
We have substantial experience with federal Prospective Purchaser Agreements as well as Ohio’s Voluntary Action Program, a regulatory brownfield program that offers successful participants with state-level governmental liability protections. We also assist clients in identifying and securing available governmental grants and low-interest loans for site investigation and remediation.
Managing transactional environmental challenges often requires an interdisciplinary team. We can draw on a wide network of technical environmental consultants, environmental insurance brokers, and other outside contractors to help clients find the unique skill sets needed for the deal. And we routinely support real estate and business attorneys on environmental aspects of their deals.
We also advise our clients on any environmental issues arising after the deal. For example, we negotiate or litigate to recover costs caused by another party’s breach of environmental representations and warranties, and defend clients against indemnification claims.
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