Environmental Legal Practice
The cornerstone of the Firm’s practice is the environmental legal counsel that we render to clients in connection with real property transactions, corporate mergers and acquisition, contamination incidents, the day-to-day operations of a private or public sector business, and the evaluation, prosecution, or defense or a wide range of possible contamination related claims. For example, we are frequently brought in on the front end of an acquisition to recommend, contract with, and direct and manage qualified environmental consultants to assist with due diligence investigations. As the environmental investigation proceeds through a typical Phase I/Phase II process, we’ll help the client understand the legal and regulatory significance associated with the findings that come out of a soil/groundwater/vapor investigation, including whether contamination conditions require reporting to government agencies and disclosure to adjacent third parties. Additionally, we’ll provide detailed and specific conclusions and legal opinions as to whether consummating a transaction will create exposure to remediation liability to government agencies and/or economic damages liability to private parties. We also are routinely called on to explain how contamination conditions as they are revealed during a due diligence investigation, may adversely impact on the design, budget, and schedule of site development and construction activities. As these risks and potential liabilities are revealed and carefully scrutinized, we are many times called on to support real estate and corporate lawyers in the drafting of environmental representations, warranties, releases, indemnifications, cleanup agreements, and cleanup escrows. In this regard, we’ve represented buyers and sellers of land, buyers and sellers of developed property, buyers and sellers of corporations, lenders financing real property transactions, borrowers seeking construction and/or acquisition financing, and landlords and tenants. Many times these transactions involve an environmental permit component, which we’ll be tasked with pursuing on behalf of the client. The Firm is experienced in pursuing such permits, whether they involve a wetland or natural resource matter, an industrial operation, or the handling, storage, dispensing, and disposal of hazardous materials. Our environmental legal practice also involves ensuring that, on a day-to-day basis, clients comply with the obligations that are imposed on them as a result of any federal, state, or local permitting requirement. On the occasions when a client falls out of compliance with an environmental permit, we’ve been called upon to respond to the notice of violation, defend the enforcement action, or the proposed penalty. A third, major element of our environmental legal practice is asserting or defending a wide array of environmental claims – statutory, common law, and contractual – that may be brought at the federal or state levels as a result of a contamination discharge or the mere presence of or proximity to actual or perceived contamination. The Firm’s deep understanding of how environmental claims are brought and typically litigated also inform the counsel that we provide to clients in a transactional context and shape the legal and business recommendations that we make and the negotiating positions that we take. For a specific listing of services that we provide as part of our Environmental Legal Practice, click here
Environmental Redevelopment Practice
The second key aspect of our practice – and one that we have been most heavily involved with over the past sixteen years due to the steady rise and increasing acceptance of reusing environmentally impacted sites by the private and public sector – is brownfields redevelopment. The Firm and its lawyers have evaluated hundreds of projects for inclusion in either the Florida or federal brownfields program and helped to facilitate well over $1 billion in private capital for environmental restoration, economic development, job creation, public health protection, natural resource preservation, expansion of family and elderly affordable and workforce housing, and conservation and recreation purposes. Through an extensive network of trusted and experienced environmental consultants, civil engineers, planners, state and local government officials, and federal, state, and local agency regulators, the Firm has helped dozens of clients in the private sector and public sector tap into tens of millions of dollars in federal and state grants, tax refunds, tax credits, loan guarantees, and low interest loans; negotiate cost-efficient and practical remediation strategies; seamlessly integrate construction planning with remediation requirements; reach consensus with community based organizations and neighborhood stakeholders on planning and reuse issues; and otherwise unlock the intrinsic and powerful reuse value associated with land long been sidelined by actual or perceived contamination. In Florida, the gateway to powerful economic, regulatory and technical incentives is, of course, the designation process, which involves petitioning local governments to adopt a resolution signifying compliance with the statutory eligibility criteria. The Firm and its lawyers have initiated or otherwise supported over 75 brownfield designations since the program was first passed by the Florida Legislature in 1996 and have appeared successfully before local government planning and elected officials in dozens of cities, counties, towns, and villages throughout the state. In addition, the Firm and its lawyers have formally counseled and informally mentored dozens of local governments in Florida on how to respond to brownfield designation requests, attract private developers to brownfield sites, and develop and pursue state and federal brownfield grant opportunities. Above all, though, in terms of ensuring the viability of a proposed environmental reuse, is helping clients, whether they be developers, end-users, lenders, or local governments, attain a reasonable level of comfort with respect to their potential exposure to the many forms of legal risk that arise out of actual and perceived contamination. The Firm’s skills and experiences are unique in this regard and typically involve a strategic mix of statutory options, administrative initiatives, contractual instruments to shift, and environmental insurance vehicles to allocate or partially or fully insulate a client from liability. For a specific listing of services that we provide as part of our Environmental Redevelopment Practice, click here
Lender Environmental Liability Practice
The third major area of the Firm’s core competence and expertise is helping lenders evaluate, respond to, and navigate the obvious as well as subtle and nuanced forms of risk and liability associated with responding to a borrower’s request for capital to fund acquisition or construction activities. Experience has taught us that one of the greatest areas of need for banks and their loan officers when underwriting environmental risk and liability is also one of the easiest to address – ensuring that any environmental consultant approved to perform work on the bank’s behalf is qualified, properly insured, and in possession of the requisite level of industry knowledge to render informed, accurate, and reliable findings, conclusions, and recommendations. Consequently, we’ve been called on numerous times to review, approve, and/or in part or in full replace a bank’s existing list of environmental consultants. Another easy “fix” to protect our bank clients is to ensure that the contract that a consultant is using with the bank is fair and provides adequate levels of insurance and indemnification. Because form consultant contracts are usually so one-sided in favor of the consultant, and with indemnification clauses that essentially leave banks without any meaningful protection in the event of a claim, we are also typically engaged to replace the consultant’s standard contract with a more expansive and, again, more protective form that we’ve developed over the years. Besides ensuring that the bank has the appropriate environmental risk management protocols and systems in place on a global basis, our other top areas of service for lender clients consist of helping them understand, underwrite, and structure liability risk when initiating loans, helping them monitor and manage such liability risk during the loan life cycle, and, should a loan go into default, helping them take advantage of and maintain the various federal and Florida laws that create important but limited (and easily lost) protections against government and third party environmental law suits. While the environmental due diligence counseling that we provide to banks during the loan underwriting process is very similar to the analysis associated with real property acquisitions generally, the steps that must be taken pre- and post-foreclosure to qualify for and then keep the federal and Florida lender environmental protections are very unique and specific. We have found this to be an area of significant jeopardy for lenders who are either unaware of what the law requires to maintain thee critical safe harbors or who are generally aware but don’t have the specific legal guidance and direction necessary to protect the bank. For a specific listing of services that we provide as part of our Lender Environmental Liability Practice, click here.