The Impact of Environmental Law on Real Estate and Business Transactions: Brownfields and Beyond - CLE, Continuing Legal Education - ALI CLE.org
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The Impact of Environmental Law on Real Estate and Business Transactions: Brownfields and Beyond
  • 22nd Annual Advanced ALI-ABA Course of Study
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Why You Should Attend

There is an ever-increasing sophistication among businesses and practitioners in addressing environmental issues in transactions, Brownfields redevelopment, and post-transaction concerns. This course will help you excel in this often complex area by exploring new legal developments and business practices.

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What You Will Learn

The highly experienced faculty panel, over the course 12 hours of instruction, covers the multifaceted transactional and redevelopment dilemmas posed by environmental laws, post-closing liabilities, and regulatory obstacles to development, with a focus on practical solutions, not theoretical discussions. You'll also take home comprehensive course materials that will serve as a priceless resource in your day-to-day practice.

In addition to two special question-and-answer sessions, time is reserved throughout the program to address registrants’ questions.

The course features:

The latest on Brownfields redevelopment programs and transaction-triggered laws

Contractual allocation of environmental risks in transactions

The latest court decisions and new legislation affecting federal and state liability for contaminated property

Analysis of specific contract clauses as interpreted by the courts

Advanced due diligence strategies

Environmental insurance for Brownfields and conventional redevelopment

Green building initiatives

Wetlands impacts on development

EPA’s view on Brownfields, the impact of climate change, and global warming concerns 

Disclosure of environmental liabilities, including SEC obligations and auditing 

Drafting skills and strategies, with an emphasis on practical approaches

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Who Should Attend

Lawyers and other professionals who must be aware of the effect of environmental issues on real estate and other business transactions should attend this unique program.

 

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Planning Chair

David B. Farer, Farer Fersko, P.A., Westfield, New Jersey (also on faculty)

 

 

 

 

 

 

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Faculty

Amy L. Edwards, Holland & Knight LLP, Washington, D.C.

Robert C. Kirsch, Wilmer Cutler Pickering Hale and Dorr LLP, Boston

Gene A. Lucero, Latham & Watkins LLP, Los Angeles

Sharon M. Mattox, Vinson & Elkins LLP, Houston

Walter Mugdan, Director, Emergency and Remedial Response Division, Region 2, U.S. Environmental Protection Agency, New York

John L. Payne, P.E., The Payne Firm, Inc., Cincinnati

Ann M. Waeger, Farer Fersko, P.A., Westfield, New Jersey

James B. Witkin, Linowes and Blocher, LLP, Bethesda, Maryland

 

ALI-ABA Staff Attorney: Amy S. Weinberg, Assistant Director, Office of Courses of Study

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Program Schedule

THURSDAY, OCTOBER 14, 2010

7:50 a.m.  Registration and Continental Breakfast

8:45 a.m.  Administrative Remarks - ALI-ABA Staff

WEBCAST SEGMENT A

8:50 a.m.  Introductory Remarks and Course Overview

9:00 a.m.  Liability under Federal Law for Ownership, Acquisition, or Operation 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; 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 and on §107 cost-recovery vs. §113 contribution actions; ethical considerations

10:00 a.m.  Networking and Refreshment Break

10:15 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

11:15 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, and services agreements

12:30 p.m.  Lunch Break

WEBCAST SEGMENT B

2:00 p.m.  Use of Environmental Insurance as a Risk Management Tool in Connection with Property Acquisition and Redevelopment - Ms. Waeger
The role of insurance products as an element in structuring deals for acquisition andor redevelopment of Brownfields and other commercial or industrial properties; current market; latest developments in available types of coverage; application and underwriting process

2:45 p.m.  Institutional Controls - Ms. Edwards
The use of institutional controls, 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; status of adoption of the Uniform Environmental Covenants Act in various states; federal, state, local, and private efforts to enhance tracking and to address long-term stewardship concerns

3:30 p.m.  Networking and Refreshment Break

3:45 p.m.  Environmental Liabilities in Transactions: A Litigation Perspective on Protecting Buyers and Sellers in the Deal - Ms. Mattox
The potential for environmental liabilities beyond CERCLA claims arising from real estate and business transactions; buyer and seller agendas on these issues; contract provisions available to the parties to handle these liabilities, including representations, warranties, covenants, indemnities, disclosures, "as-is" clauses, non-reliance language, and inspection provisions; public policy and ethical issues

4:30 p.m.  Environmental Due Diligence: Determining the Type and Amount of Data To Gather for Multiple Applications - Mr. Payne Developing valuable information during due diligence for application to future business needs, including traditional estimation of liabilities, compliance with regulatory programs, remediation time frames and costs, cessation of operations and facility closures and preparation for sale; integrating this information into due diligence for future business needs; energy and GHG considerations; case studies exploring the above aspects of due diligence and data utilization; deal crafting and post transaction management of indemnities and indemnity management; commentary on the impacts of the recent economy to consulting practices and due diligence trends

5:30 p.m.  Adjournment for the Day; Networking Reception for Registrants and Faculty

FRIDAY, OCTOBER 15, 2010

8:00 a.m.  Continental Breakfast and Networking Session

WEBCAST SEGMENT C

8:30 a.m.  The View from EPA - Mr. Mugdan
The latest on the federal government's Brownfields and land revitalization programs; assessment of the "all appropriate inquiry" rule promulgated in 1995; implementation of institutional controls; compliance and enforcement priorities; the impact of global climate change concerns on EPA priorities and administrative initiatives on green building, sustainable infrastructure and clean construction

9:15 a.m.   Hot Topics/Question and Answer Session I - The Faculty
The faculty highlights several specific topics of concern and considers a series of questions compiled from written questions submitted before and during the Course of Study

9:30 a.m. Networking and Refreshment Break

9:45 a.m.  Wetlands Issues and Development Impacts - Ms. Mattox
Recent developments in dealing with wetlands and other waters subject to federal jurisdiction as part of the development process; current status of wetland delineations, including Rapanos and the development of regional delineation manuals; the impact of the 2008 Compensatory Mitigation Rule, including mitigation banks and the increased use of HGM and other biological models; 401 water quality certifications by states and the growing importance of that process; recent National Environmental Policy Act developments including CEQ guidance on climate change assessments and categorical exclusions

10:30 a.m.  Making the Most of Environmental Insurance Policies - Ms. Waeger
Negotiation of key policy terms in insurance products for acquisition and redevelopment of Brownfields and other commercial and industrial properties and compliance with policy requirements, including lessons learned from current case law

11:00 a.m.  Building Green: Regulations and Responsibility for Sustainable Development - Mr. Witkin
The burgeoning interest in applying the principles of sustainable development to building design, planning and construction; the application of these principles to Brownfield and other redevelopment projects; green remediation; legislative and regulatory initiatives concerning green building and promoting green development; green building accreditation programs (LEED and other standards); incentives available for green building projects, including tax incentives

11:45 a.m.  Hot Topics/Question-and-Answer Session II - The Faculty
The faculty highlights several specific topics of concern and considers a series of questions compiled from written questions submitted before and during the Course of Study

12:00 p.m.  Lunch Break

WEBCAST SEGMENT D

1:30 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; including SEC's February 2010 interpretative release on climate change disclosure; the effect of Sarbanes- Oxley on environmental lawyers; the role of environmental counsel in the auditing process; ethical considerations in reporting environmental liabilities

2:15 p.m.  Networking and Refreshment Break

2:30 p.m.  Negotiating and Drafting in Contaminated Property Transactions: Current IssuesPractical Solutions - The Faculty
Development of transactional solutions; negotiation of proposed contract clauses among parties to transactions and redevelopment projects, including consultant agreement, sale agreement, and insurance policies

4:00 p.m.  Adjournment

Total 60-minute hours of instruction: 12
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.

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

Click Here for MCLE Credit Information

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Here's what registrants have said about this course:

“This was the best seminar I’ve attended in the last 30 years. It was helpful in identifying trends in specific developing areas, such as post-Aviall contribution cases, as well as providing practical advice and suggestions concerning negotiation of environmental insurance policies as well as contract provisions in purchases and sale agreements….Resource materials provided to attendees are a great compilation that I will use for many years to come….I have no reservations about recommending this seminar to other practitioners.” – Michael J. Hinton, Cummings & Lockwood LLC, Stamford, CT (2007)

“Great program – covered a great deal of issues and was very current.” – 2008 registrant

“The instructors did have some very useful practice tips, especially regarding negotiating and drafting terms and conditions with the insurance industry. All instructors handled questions well and made themselves available during the break….The final exercise was very helpful to see the principles that were discussed ‘in action.’ It was a nice coordination of the concepts.” – 2008 registrant

“As with most ALI-ABA materials, the comprehensive nature of the materials is excellent and will serve as a good resource for quick reference on the topics covered.” – 2008 registrant

“Excellent and well-planned course.” – 2007 registrant

“The course, including choice of subjects, faculty knowledge and presentation, and materials was excellent.” - 2007 registrant

“The two books of materials provided to course participants will be invaluable – not only does it have a thorough and on-point discussion of pertinent cases, but it also has excerpts of pertinent language from actual Purchase and Sale Agreements. The books will remain as reference materials on my bookshelf.” - 2007 registrant

“The speakers are extremely knowledgeable and their presentations are very informative.” - 2007 registrant

“This was an excellent course, well worth the time and cost involved.” - 2007 registrant

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Times

All times are in Eastern Daylight Time.

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