Environmental Law, Commercial Real Estate, Commercial Law & Contracts

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

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

California Energy Commission Amends Nonresidential Building Energy Disclosure Regulations

by Kirsten Day, Teresa Jacobs | Perkins Coie on 5/10/2013

The California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007. The Code requires each nonresidential building owner throughout the state to document and disclose a building’s energy use...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

Earth Matters - April 2013: Making Solar Power More Affordable for New Yorkers

by Donald Ross | Phillips Lytle LLP on 4/22/2013

New York State continues to be a national leader in renewable energy initiatives, particularly in encouraging practical, everyday applications of solar power. Recently, Governor Andrew Cuomo, as part of his ongoing “NY-Sun”...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

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

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

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

New Jersey Department of Environmental Protection Implements New Guidance on Vapor Intrusion

by Larry Jacobs | Wilentz, Goldman & Spitzer P.A. on 1/17/2013

On January 16, the New Jersey Department of Environmental Protection (NJDEP) published its new guidance on vapor intrusion, including significant changes to the groundwater vapor intrusion screening levels....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

EPA Guidance Further Clarifies The Protections Available To Tenants Under Superfund’s BFPP Defense

by Ronald Farley | Burr & Forman on 1/11/2013

As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) was amended in 2002 to provide...more

New Liability Protection For Tenants On Brownfield Properties

by Jane Luxton | Pepper Hamilton LLP on 1/9/2013

In a December 2012 Guidance Memo, the Environmental Protection Agency (EPA) announced new enforcement principles intended to enhance protections for tenants on contaminated or previously contaminated “brownfield” properties....more

EPA Revises Guidance On Bona Fide Prospective Purchaser Protection For Tenants Under Federal Superfund Law

by Lucas Narducci | Polsinelli on 1/5/2013

On December 5, 2012, the United States Environmental Protection Agency (EPA) revised its enforcement guidance regarding when tenants may be treated as bona fide prospective purchasers (BFPPs). The revised guidance addresses...more

New EPA Guidance Gives Long-Term Tenants Direct Access to the Bona Fide Prospective Purchaser Defense and Greater Protection from...

by Jeffrey Kirschenbaum | Buchalter Nemer on 1/4/2013

Newly issued guidance by the U.S. Environmental Protection Agency (USEPA) suggests that prudent long-term tenants of commercial and industrial properties should conduct environmental due diligence before entering into a...more

Oil and Gas Leasing and Development: A Real Estate Lending Perspective

by Steven Regan | Reed Smith on 1/3/2013

The Marcellus, Utica and other Shale gas plays have been an economic boon to landowners, the oil and gas industry, and the states and communities in which production is occurring. The impacts of shale oil and gas development...more

U.S. EPA Issues New Guidance on Bona Fide Prospective Purchaser Defense for Tenants

by Cristina Stummer | Saul Ewing LLP on 12/17/2012

The United States Environmental Protection Agency ("EPA") released revised guidance on the applicability of the bona fide prospective purchaser ("BFPP") defense to tenants under the Comprehensive Environmental Response,...more

Is the ISRA De Minimis Quantity Exemption Being Squeezed Out?

by Emily Vail | Wilentz, Goldman & Spitzer P.A. on 12/7/2012

There is a proposed amendment A-3367 to the Industrial Site Recovery Act (“ISRA”) N.J.S.A. 13K-1 et seq. that would require an owner or operator of an industrial establishment applying for a De Minimis Quantity Exemption...more

Minimizing Commercial Lease Risks Through Proper Environmental Due Dilligence

by Lane Powell PC - Environmental Law on 11/21/2012

As real estate development and leasing begin to emerge slowly from the dark days of the Great Recession, it’s important to remember that environmental considerations should not take a back seat to getting a deal done. In...more

Mold, Asbestos, and Raw Sewage – The Toxic Stew that Sandy Left Behind

by Aisha Cassis, Jonathan M. Cohen | Gilbert LLP on 11/13/2012

Superstorm Sandy wreaked havoc across the Eastern Seaboard and is predicted to be one of the costliest natural disasters in U.S. history. New York’s Governor Cuomo estimates that the storm may have had a $50 billion impact...more

Earth Matters - October 2012

by Morgan Graham, Kevin Hogan, Susan Marriott, Inshirah Muhammad, Thomas Puchner, Adam Walters | Phillips Lytle LLP on 11/1/2012

In This Issue: - Updated Siting Process for Power Plants in New York - Sustainability in Leasing Series – Part I: The Green Rider - Sustainability in Leasing Series – Part II: The Green Lease Policy Statement &...more

Sustainability in Leasing Series—Part I: The Green Rider

by Inshirah Muhammad | Phillips Lytle LLP on 10/29/2012

We recently had the privilege of drafting a first of its kind Green Rider for a national lending institution for use with its branch leases throughout the United States and Canada. The Rider was drafted broadly from a...more

Sustainability in Leasing Series — Part II: The Green Lease Policy Statement & Practical Solutions to Implementing Green Goals

by Inshirah Muhammad | Phillips Lytle LLP on 10/26/2012

An operational policy document drafted by key company officers, a Green Lease Policy Statement should define the company’s long and short term sustainability goals as they relate to its owned and leased locations and set out...more

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