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Outline Objectives Overview of Environmental Law Framework

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Presentation on theme: "Outline Objectives Overview of Environmental Law Framework"— Presentation transcript:

0 Environmental Issues and Trends In Transactions
Stacy Kray Skadden, Arps, Slate, Meagher & Flom LLP San Francisco Thomas McHenry Gibson Dunn & Crutcher LLP Los Angeles

1 Outline Objectives Overview of Environmental Law Framework
Recent Trends—Regulation, Enforcement and Other Developments Environmental Considerations in Transactions Environmental Diligence and Negotiations 1

2 Introduction to the Environmental Framework—Cleanup and Liability Laws
Laws directed at cleaning up soil and groundwater contamination (CERCLA, RCRA, State Law) Laws allowing recovery for damages to natural resources (CERCLA) Laws allocating responsibility among parties (Contracts, Indemnities, State Law) 2

3 Pollution Control and Prevention Laws
Clean Water Act Clean Air Act Resource Conservation and Recovery Act Emergency Planning and Community Right To Know Act NEPA ESA TSCA 3

4 Introduction to the Environmental Framework—Potentially Responsible Parties
Current and prior owners and operators Owners/operators at time of disposal Generators Transporters Contractual liability 4

5 Lender Liability Under CERCLA
Secured creditor exemption Recent NY AG case against bank that failed to act to prevent releases of hazardous substances (5/30/07 Press Release from Office of the New York State Attorney General Andrew Cuomo) 5

6 Protecting Against CERCLA Liability
CERCLA’s safe harbor provisions Establishing the “innocent purchaser” defense New “All Appropriate Inquiry” standards 6

7 Additional Liability Concerns
Strict liability Retroactive liability Joint and several liability 7

8 Importance of Environmental Law in Business Transactions
Civil penalties of $25,000 or more per day per violation Potential criminal liability Citizen enforcement under certain statutes (RCRA, Proposition 65) Compliance costs Legal opinions on compliance Permit transfers Property transfer statutes 8

9 Recent Developments Greenhouse gas regulation disclosure and accounting Internationalization of transactions Influence of European Environmental Law SEC enforcement actions Proposed new standards for environmental accruals in acquisition context AAI standard for Phase I assessments EPA “New Owner” Policy under development Department of Homeland Security Chemicals of Interest 9

10 Greenhouse Gas Regulation & Litigation
CA mobile source limits beginning with 2009 models Global Warming Solutions Act of 2006 (AB 32) Proposed federal legislation—political aspects Other state legislation Ongoing litigation Securities disclosure issues—no SEC guidance Lifecycle analysis NEPA/CEQA disclosure for new projects 10

11 International Considerations
Regulations can apply to the manufacturing, importation and disposal of goods More stringent regulation in European Union REACH directives WEEE & RoHS Directives Less stringent regulations also can be a concern 11

12 Reasons For Environmental Diligence
Potential environmental liabilities related to current and former operations and properties Legal requirements, e.g., property transfer laws, securities regulations Preservation of innocent landowner defenses Compliance assessment and obligations 12

13 Environmental Disclosures Under Securities Laws
Item 101 – Description of Business Item 303 – MD&A Item 103 – Legal Proceedings Financial Statements (GAAP) 13

14 Recent Enforcement Actions
Ashland materially misstated its environmental reserves and net income (SEC Order, Rel. No , 11/29/06) Con-Agra off-set unrelated losses by decreasing environmental reserves (SEC Lit. Rel. No , 6/29/07) Safety-Kleen decreased environmental reserves after missing income targets following hostile takeover (11/08/07 Press Release, United States Attorney for Southern District of New York) 14

15 Policies On Reserves Create clear audit trail of reserve amounts and reasons for adjustments Retain records to support reserve amounts Consult environmental engineers before revising estimates Report to board Hire independent auditor to assess env’l reserve setting and investigation of internal complaints 15

16 Sarbanes-Oxley Developments
Obstruction of justice and document retention issues Certification of company reports Compliance programs Sensitivity to disclosure 16

17 Business Issues Affecting Environmental Diligence
Type of transaction Type of company Client needs Constraints on transaction Purchase versus auction 17

18 Environmental Due Diligence Initial Steps
Background on transaction Background on the subject company’s business and operations Due diligence request Other sources of environmental information Protocol for contacts with agencies 18

19 Env’l Diligence Investigation
List of current/former properties List of current/former corporate affiliates Call with company— company environmental personnel Database review Document review Site visits Agency contacts Insurance 19

20 Environmental Consultants
Case specific Lead time Cost Consultant agreements Evolving standards Privileges/confidentiality Access agreements 20

21 Structuring the Deal Various ways of managing environmental risk
Environmental investigations, e.g., Phase I’s, compliance audits Contractual provisions, e.g., representations & warranties, covenants, closing conditions, indemnities Asset vs. stock purchase Changes to pricing Insurance 21

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