We draft, analyze and negotiate environmental indemnity and assumption provisions in a multitude of contexts.  Additionally, our attorneys provide environmental and other due diligence analysis for companies contemplating sales and acquisitions.  We are able to provide our clients with critical investigative and risk analysis for these important business decisions.  On the operational side, our lawyers assist with permits for construction and operation of new air sources, wetlands and water quality certifications, and pipeline construction authorizations, among others.  Our experience also extends to counseling clients subject to enforcement under the Clean Water Act and Oil Pollution Act arising from leaks and spills.

Regulatory Counseling and Response

The attorneys at Kelley Drye combine legal experience, practical knowledge and technical ability to assist clients in effectively navigating an often complex regulatory process.

Environmental practitioners at Kelley Drye provide the full range of regulatory representation to both private- and public-sector clients.  Our regulatory attorneys routinely counsel clients on applicability of regulatory requirements, compliance assurance, release reporting and spill response.  Kelley Drye helps clients evaluate the need for obtaining permits and, when needed, in securing permits for air emissions, wastewater discharges, and waste generation and disposal.  We provide representation in negotiations with federal and state agencies in remediation, permitting, and enforcement matters and in stakeholder proceedings, including submission of formal comments to agency rule making.

We work proactively with our clients to minimize environmental risks and maximize practical solutions, including ascertaining relative responsibilities with other responsible parties and governmental agencies and preserving our clients’ rights and privileges in the event of future litigation.  We have assisted many clients with developing compliance assurance measures such as audit programs, greenhouse gas (GHG) and other air emissions inventories, preparedness plans for agency inspections, emergency response protocols, due diligence and compliance checklists, and environmental management systems.

Unaddressed environmental risks can often lead to penalty or enforcement actions.  Our attorneys have the depth of experience to provide strong representation at penalty conferences and administrative hearings and in negotiating consent decrees and administrative settlements.  By addressing environmental incidents early and aggressively, we seek to limit our clients’ future costs and exposure.  Because of our extensive environmental litigation experience, we know the issues that can arise later in litigation.  With this knowledge, we can help clients avoid potential pitfalls and best position themselves during the regulatory process in the event of later litigation.

Transactional Matters

In addition to representing clients in environmental regulatory and litigation matters, our attorneys represent clients in efforts to limit or avoid exposure to environmental problems associated with business transactions.  Environmental laws and regulations assign environmental liabilities based on the ownership of land and operation of commercial and industrial facilities; thus businesses must factor environmental considerations into their transactions and operations.  Because our attorneys regularly litigate environmental matters, we see firsthand the issues that could be avoided or mitigated with proper due diligence and environmental risk management.  We have represented a wide variety of clients, including real estate developers, landlords and tenants, manufacturers, governmental agencies and institutional landowners, in transactions involving contaminated properties.

The attorneys at Kelley Drye routinely negotiate and facilitate mergers and asset sales and purchases of businesses with environmentally impacted properties or environmentally sensitive operations.  The firm’s attorneys have particular experience in property transfer issues, easement and leasehold negotiations, sale and leaseback arrangements, indemnity protections, and the negotiation and administration of property cleanup and remediation agreements.  We also work through the due diligence process, including evaluation of Phase I and Phase II reports or other site assessments, and review of permits, operational data and agency records, to ensure all appropriate inquiries are conducted and that transactions are structured to account for environmental liabilities.  Similarly, our attorneys work with our clients to develop and implement contractual and regulatory safeguards to environmental risk, including environmental indemnities and warranties, cleanup and remediation agreements, and environmental insurance, as well as participation in state voluntary cleanup programs and federal Brownfields initiatives.

In sum, at Kelley Drye, we strive to provide our clients with environmental counsel and guidance over the life of a transaction or business that adds substantial value and reduces long-term operational costs and liabilities.

Environmental Compliance Counseling

Advising clients on compliance with environmental laws and regulations requires a unique set of legal and technical abilities.  The attorneys at Kelley Drye have the practical knowledge and technical experience necessary to achieve our clients’ goals within the regulatory process, whether those goals are compliance monitoring and assurance, investigation and reporting of contamination, responding to spills or air releases, monitoring agency investigations, or mitigating penalties and resolving enforcement actions.  Many of our attorneys have science or engineering backgrounds, industry experience, or previous tenure with federal and state agencies or nongovernmental organizations, providing a unique understanding of the technical and legal complexities frequently presented in environmental disputes.

Our attorneys have years of experience in regulatory compliance, reporting and cleanup of contamination, agency inspections and investigations, and similar environmental issues.  When technical investigations are needed, we draw on our technical knowledge and professional relationships to recommend top-quality environmental professionals, assist in developing the scope of investigation, and facilitate the client’s understanding of the results.

Environmental Justice

Kelley Drye environmental practitioners assist the regulated community with understanding how executive priorities and agency policies can impact operations and business.  With the Environmental Protection Agency’s focus on environmental justice, Kelley Drye lawyers work with clients to take a proactive approach to areas that are seeing increased scrutiny, including siting, permitting, monitoring, enforcement, and compliance history.

Kelley Drye’s cross-disciplinary team includes environmental, corporate, advertising, and employment practitioners who monitor policy at the federal level in Washington, D.C., as well as at the state level, in an effort to provide clients an up-to-date look at administrative agency priorities.  Our team follows these priorities, many times through agency announcements regarding upcoming changes, and helps clients develop policies and practices that not only hold up to scrutiny from agencies, but also help meet business objectives.

Kelley Drye counsels clients regarding environmental justice issues, including:
 

• Advising on facility siting and facility expansion issues;


• Creating proactive environmental justice community engagement plans;


• Responding to environmental justice community concerns raised in the permitting process;


• Engaging with federal and state-level regulators during stakeholder opportunities, including submitting comments to proposed rules;


• Assisting with ESG reporting;


• Evaluating advertising claims related to greenwashing;


• Evaluating advertising claims related to environmental justice; and


• Litigating claims pursuant to environmental and civil rights laws.

Contaminated Real Estate Transactions

At Kelley Drye, our environmental transactional attorneys bring decades of experience in sorting out and effectively dealing with the complications that contamination presents in a real estate transaction.

Kelley Drye identifies environmental risk and adds significant value in corporate and real estate transactions.  Because multiple environmental laws and regulations assign environmental liability based on ownership status, businesses must consider environmental risks to effectively value corporate and real estate transactions.  We have long represented clients, including governmental and institutional landowners, landlords and tenants, operators and real estate developers, in transactions involving potentially contaminated properties.

We have extensive experience in negotiating and drafting environmental components of purchase and sale agreements and commercial leases, environmental indemnities, remediation agreements, access agreements and consulting services contracts to address issues identified during environmental due diligence.  We also can assist clients with evaluating environmental insurance products to address unknown environmental risks.