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News & Analysis as of May 22, 2013

Barbara Knoflach, CEO of SEB Asset Management, on the rise of cross-border real estate investment
Ventas' Debra Cafaro on why the Health Care asset class is well positioned in today's economy
Jeffrey DeBoer on the intersection of Washington and commercial real estate
Navigating the Winds of Change in Commercial Real Estate
California Commercial Building Owners Must Disclose Energy Usage of the Building During Sale, Lease or Financing after July 1, 2013
Action Required by California Commercial Landlords: New California Law Goes Into Effect July 1, 2013, Requiring Accessibility Disclosures in Commercial Leases
Transbay Tower Groundbreaking
Bisnow/Allen Matkins - LA Property Management - Patrick Lacey, Property Management Associates
Bisnow/Allen Matkins - LA Property Management - Kevin Kirn, Health Care REIT, Inc.
Bisnow/Allen Matkins - LA Property Management - John Fucci, Kilroy Realty
Bisnow/Allen Matkins - LA Property Management - Charlie Hobey, Equity Office
Bisnow/Allen Matkins - LA Property Management - Brian Plymell, Hines
Which environmental regs may impact your development projects?
California Commercial Real Estate Forecast - Industrial & Multifamily Remain the Bright Spot in the Winter 2013 Allen Matkins/UCLA Anderson Survey Results
California Commercial Real Estate Forecast - Allen Matkins/UCLA Anderson Winter 2013 Survey Reveals Dip in Developer Sentiment
California Commercial Real Estate Forecast - Allen Matkins/UCLA Anderson Survey Results Reveal Tension Between Developer Sentiment & Action
Former Congressman Steve Bartlett Joins the LEVICK Team
Taking it Seriously: Unusual Lease Violations in Virginia
Understand both sides' interests to get best results for your clients
"Bisnow/Allen Matkins LA Industrial and State of the Ports - " Mark Payne

Do Liability Policies, Particularly Pollution Liability Insurance Policies, Exclude Coverage for All Injunctions? The Fifth...

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 5/22/2013

The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The...more

Defense Cost Analysis in Complex Environmental Fee Claims

by David J. McMahon | Barger & Wolen on 5/21/2013

Introduction - Many of our litigation management audits involve complex environmental cleanup cases. In these cases, it is important to first evaluate the underlying matter, including the fact patterns of the various...more

Vapor Intrusion Developments

by Martin Booher, Maureen Brennan | BakerHostetler on 5/13/2013

Potential buyers and sellers take note — on April 16, 2013, the U.S. Environmental Protection Agency (U.S. EPA) issued draft guidance that would require more evaluation of "vapor intrusion" (migration of any hazardous vapors...more

Appeal Court Confirms That Innocent Party Must Clean Up Pollution

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Paul Morassutti, Lindsay Rauccio, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 5/13/2013

In a decision in Kawartha Lakes (City) v. Ontario (Environment), on May 10, 2013, the Ontario Court of Appeal unanimously dismissed the appeal of the City of Kawartha Lakes (the City), which sought to overturn a decision of...more

Ashley II Holdings Require Caution

by Larry Burke | Davis Wright Tremaine LLP on 5/13/2013

On April 4, 2013, the Fourth Circuit Court of Appeals issued a much anticipated decision in PCS Nitrogen, Inc. v. Ashley II of Charleston LLC, No. 11-1662 (4th Cir. April 4, 2013) (Ashley II). ...more

Senate Bill 814 Proposes Sweeping and Retroactive Changes to Environmental Claims Handling in Oregon

by Molly Eckman | Cozen O'Connor on 5/8/2013

On March 13, 2013, the Oregon legislature introduced Senate Bill 814 to create sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of contaminated...more

Mistakes Have Consequences – British Petroleum’s Settlement

by Cleve Clinton | Looper Reed & McGraw, P.C. on 4/30/2013

Three years ago, Tilting told tales of oil spill legal problems suffered by Forrest Gump, Bubba Gump Shrimp Company, Wok Ann chu-gumm Seafood Restaurants, Chef Red Fishy and Bishop Carp. Tilting predicted class action...more

Missouri To Pilot Reforms To Corrective Action Clean-Up Program

by Adam Troutwine | Polsinelli on 4/29/2013

Businesses involved in clean-up of environmentally contaminated sites often face a time-consuming and expensive process. The Missouri Department of Natural Resources and the Environmental Protection Agency will pilot reforms...more

EPA Issues Long-Awaited Vapor Intrusion Guidance for Public Comment

by John Gregory | Farella Braun + Martel LLP on 4/23/2013

More than ten years after issuing draft guidance regarding the increasingly significant subject of vapor intrusion (VI), the U.S. Environmental Protection Agency (EPA) has just released for public comment drafts of two...more

Abolishment of Limitation Periods for Contaminated Sites in BC Put on Hold

by Wally Braul, Laura Gill, Michael Theroux | Bennett Jones LLP on 4/23/2013

In 2012, the government of B.C. passed legislation that would eliminate any limitation period previously applicable to actions to recover the costs of environmental remediation under the Environmental Management Act, S.B.C....more

Fourth Circuit Restricts “Bona Fide Prospective Purchaser” Defense

by William Cleveland, IV, Perrin Dargan, III, David Franchina | K&L Gates LLP on 4/19/2013

On April 4, 2013, the Fourth Circuit issued a ruling in PCS Nitrogen Inc. v. Ashley II of Charleston that, among other things, may limit the availability of the “bona fide prospective purchaser” (“BFPP”) defense that Congress...more

Fourth Circuit Brownfields Decision Stops Short Of Worst-Case Outcome

by Todd Fracassi, Jane Luxton | Pepper Hamilton LLP on 4/17/2013

In a closely watched Superfund case decided April 4, 2013, the Fourth Circuit Court of Appeals interpreted the scope of landowner liability protections Congress put in place in 2002 to "promote the cleanup and reuse of...more

PCS Nitrogen Inc. v. Ashley II of Charleston: Required Reading for Superfund Lawyers

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 4/9/2013

The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston. It should be required reading for Superfund lawyers. The facts in the case are worthy of a law school law...more

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

by Emily Lamond, Robert Lawrence | Orrick, Herrington & Sutcliffe LLP on 4/8/2013

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms...more

Dodging Deal Killers -- Anticipating and Solving Problems Related to Properties Being Sold or Purchased

by Walter McMonies, John Pinkstaff | Lane Powell PC - Real Estate Law on 4/5/2013

In This Presentation: Contamination; Environmental Issues; Defective or Incomplete Land Use Approval; “As Is,” “Your Problem Not Mine” Seller; Encroachment; URM or Otherwise Seismically Challenged Property; Use,...more

Ontario Court Recognizes “Light” as a Contaminant Under the Environmental Protection Act

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Joshua Krusell, George Valentini, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 3/27/2013

In February 2013, Justice Green of the Ontario Court of Justice held that sunlight reflected from a building can be considered a contaminant under the Ontario Environmental Protection Act (EPA). Justice Green’s ruling, while...more

Ontario Court Rejects Damage Recovery in Contamination Claim, Adopting a Strict Analysis That May Hinder Future Claims

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 3/26/2013

In Midwest v. Thordarson (Midwest) 2013 ONSC 775, the Ontario Superior Court of Justice dismissed a property owner’s claim for damages for remediation costs stemming from the alleged migration of contaminants from a...more

BP Settlement Claim

by Robert Ciotti, Wm. Cary Wright | Carlton Fields on 3/20/2013

After years of litigation, BP Exploration & Production, Inc. and BP America Production Company (collectively, "BP") entered a class-wide settlement ("BP Settlement") that covers most businesses located in the Gulf Coast...more

EPA Lifts Threat of CERCLA Liability for Some Tenants of Brownfields

by Thomas Hogan, Christopher Marraro | BakerHostetler on 2/18/2013

Tenants who lease currently or formerly contaminated property can now benefit from protections from cleanup liability that were once available only to purchasers of such property. EPA announced its new policy in a December...more

Limitation Periods for Environmental Cost Recovery Claims in BC Abolished

by Wally Braul, Laura Gill, Michael Theroux | Bennett Jones LLP on 2/7/2013

The government of B.C. recently passed legislation that will eliminate any limitation period previously applicable to actions to recover the costs of environmental remediation under the Environmental Management Act, S.B.C....more

Bankruptcy Loses Arguments for Special Relief Under Prepetition Agreements for Environmental Liability

by Levi Jones | Schnader Harrison Segal & Lewis LLP on 2/6/2013

A recent case from the U.S. District Court for the Southern District of New York addressed the recurring conflict between the goals of bankruptcy law, which seeks to give debtors a fresh start, and the goals of federal and...more

Should Tenants Worry About Environmental Liabilities For Their Leased Property?

by Mark E. Beliveau, Kenneth Gray | Pierce Atwood LLP on 1/23/2013

By 2013, most property owners have heard of the advantages of performing environmental due diligence and conducting “All Appropriate Inquiry” by obtaining an Environmental Site Assessment before purchase. Doing so is key to...more

In Alabama, Cost of Complying with a PRP letter Now Insured Under CGL Policies

by Revelle Gwyn, Elizabeth Hamrick, Katherine Henry, Sid Trant | Bradley Arant Boult Cummings LLP on 1/16/2013

In a recent ruling of interest to any company named as a potentially responsible party (“PRP”) at a Superfund site, the Alabama Supreme Court has held that a PRP letter constitutes a “suit” under a comprehensive general...more

Responsible Parties and their LSRPs Now Obligated to Respond to Public Inquiries

by Emily Vail | Wilentz, Goldman & Spitzer P.A. on 1/16/2013

Under the “traditional” site remediation program, New Jersey Department of Environmental Protection (NJDEP) responded to inquiries asking for the status of an investigation/cleanup of a site because it had all the information...more

Brownfield Tenants Gain CERCLA Liability Protection

by Bruce Flushman | Wendel, Rosen, Black & Dean LLP on 1/15/2013

Good News: Brownfield Tenants Gain CERCLA Liability Protection - In December 2012, an Environmental Protection Agency (EPA) Guidance Memo set out a new EPA enforcement policy. In sum, on a discretionary basis, the EPA...more

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