The Impact of Environmental Law on Real Estate and Business Transactions: Brownfields and Beyond - CLE, Continuing Legal Education - ALI
The Impact of Environmental Law on Real Estate and Business Transactions: Brownfields and Beyond
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Why You Should Attend

Sharpen your edges and excel in the often complex, and continually evolving, area of environmental law relating to real estate transactions - join us for this accredited, multifaceted CLE program and explore new legal developments, emerging issues, important trends, and best business practices.

Businesses and practitioners are becoming increasingly sophisticated in addressing environmental issues in transactions, Brownfields redevelopment, the use of environmental insurance in mitigating risk, and management of post-transaction concerns. Stay ahead of your competition by attending this advanced course taught by a national panel of experts.

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What You Will Learn

Rather than theoretical discussions, the highly experienced faculty 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 and key takeaways attorneys can immediately put to use. You will also take home comprehensive course materials that will serve as a priceless resource in your day-to-day law practice.


This program addresses:

The latest on Brownfields redevelopment programs and transaction-triggered laws

Contractual allocation of environmental risks in transactions

Advanced due diligence strategies

The expanding role of environmental insurance in Brownfields and conventional redevelopment

Market update from the insurers, with perspectives from in-house and transactional counsel

Sustainable development initiatives

Navigating regulatory obstacles to development, including Wetlands

Analysis of specific contract clauses as interpreted by the courts

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

Disclosure of environmental liabilities, including SEC obligations and auditing

Drafting skills and negotiation strategies, with an emphasis on practical approaches


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

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Who Should Attend

Lawyers and other legal professionals working in the areas of environmental law or real estate should attend this accredited continuing legal education program from ALI CLE.

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Planning Chairs

David B. Farer, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey (also on faculty)

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Gerard P. Cavaluzzi, Vice President and Division Counsel, Malcolm Pirnie, the Water Division of ARCADIS U.S., Inc., White Plains, New York

Anthony W. Gentile, Vice President and Executive Underwriter - Environmental, XL Insurance America, Inc., Exton, Pennsylvania

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 & Remedial Response Division, Region 2, U.S. Environmental Protection Agency, New York

John L. Payne, P.E., Senior Vice President / Director, TRC Companies, Inc., Cincinnati

Michele Schroeder, Environmental Risk Inc., New York

Kerry Simon, Underwriting Officer - Environmental, AIG Property Casualty, New York

Ann M. Waeger, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey

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


ALI CLE Program Attorney: Amy S. Weinberg

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Program Schedule


7:50 a.m.  Registration and Continental Breakfast

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

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

9:00 a.m.  Liability under Federal Law for Ownership or Acquisition 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
Update on 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 environmental covenants, and engineering controls such as capping, as alternatives to or components of cleanups; economic incentives such as tax abatements; latest developments on the state transfer law scene and regulatory concerns such as vapor intrusion

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 (lunch provided by ALI CLE)

1:30 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

2:15 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

3:00 p.m.  Networking and Refreshment Break

3:15 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, impacts of vapor intrusion requirements on remediation budgets, schedules and third party property owners, 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

4:30 p.m.  Adjournment for the Day; Networking Reception for Registrants and Faculty

FRIDAY, APRIL 19, 2013

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

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; addressing concerns about vapor intrusion; 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

9:30 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

10:15 a.m.  Networking and Refreshment Break

10:30 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

11:15 a.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 disclosure for emerging issues such as climate change and hydraulic fracturing; the effect of Sarbanes-Oxley on environmental lawyers; the role of environmental counsel in the auditing process; ethical considerations in reporting environmental liabilities

12:00 p.m.  Lunch Break (lunch provided by ALI CLE)

1:00 p.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

1:15 p.m.  Categories of Available Environmental Insurance Products: Policy Coverage, Limits, Deductibles and Costs - Mr. Gentile and Mss. Schroeder, Simon, and Waeger
Analysis of the latest available types of coverage; identifying scenarios for the use of the new policies beyond the traditional transactional arena; identifying critical strategies and goals associated with the acquisition of policies; mold, indoor air pollution, and vapor intrusion; NRD liabilities; climate change issues

2:15 p.m.  Networking and Refreshment Break

2:30 p.m.  Negotiating and Using the Environmental Insurance Policy - Messrs. Cavaluzzi and Gentile and Mss. Schroeder, Simon, and Waeger
Key issues and concerns; strategies and goals; consideration of critical policy terms as they affect desired coverage, including known conditions, trigger of coverage, notice and assignment; best practices in the claims handling process from the insurer and insured perspectives; the track record to date and how existing case law can affect the negotiation and claims process; forecast

3:30 p.m.  Adjournment

Total 60-minute hours of instruction: 11.5; total 50-minute hours: 13.8

For more information on CLE credits for a particular jurisdiction, click on the “Mandatory CLE Credit” link in the box titled, “Course Details,” at the top left of this web page.

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:
“Overall I thought this was an excellent course that presented some great practical tips in an area I needed to increase my knowledge. The presentations that provided real practical advice were excellent and of the highest value.”


“Overall speakers were very knowledgeable and handouts were plentiful. The materials should serve as a good reference source in the future. A very good seminar.


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


“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.”


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

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Course Details

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