|
|
|
 |
|
| Highlights |
|
|
Adding Value with Experience
Vinson & Elkins maintains one of the most experienced and largest environmental law practices in the United States. Since the early 1970s, our lawyers have assisted clients with the myriad issues that can arise under environmental laws in the United States, and they have played a leading role in many significant cases that have shaped today's environmental laws. Now, more than ever, federal, state and local environmental laws have created a complex web of regulatory compliance issues and potential liabilities for companies in every industry as well as state and local governments. From our offices in Texas and Washington our lawyers assist clients on environmental problems throughout the United States. Moreover, as environmental requirements are applied world-wide, our lawyers have been assisting clients with problems globally as well.
Our environmental practice is built on several strong foundations:
Broad-Based Experience. Since our environmental law practice began thirty years ago, our lawyers have represented clients in Texas and nationwide on a wide variety of environmental law issues. Our broad experience includes: - negotiating a consent decree to resolve alleged violations of federal law and cleanup responsibilities at more than 100 separate facilities in a dozen different states and half a dozen EPA regions;
- evaluating the environmental condition of 4.5 million acres of coal reserves in one of the largest real estate transactions since the Louisiana Purchase;
- defending the adequacy of the Environmental Impact Statements for several major federal projects in the southwest, including one for a multi-purpose deepwater port and crude oil distribution system in Galveston Bay and another for impounding water with the Wallisville Dam;
- defeating claims of arranger liability based on the sale of recyclable scrap metals at a highly controversial, extremely costly Superfund site in Virginia;
- negotiating a federal global settlement of allegations under CERCLA, RCRA, SDWA and EPCRA including a plea agreement, a civil settlement agreement and a compliance agreement to forestall discretionary debarment;
- defeating a claim by the United States for penalties and cleanup costs arising from the largest inland water spill in the history of the United States;
- negotiating a consent decree to address dioxin contamination at a closed agent orange manufacturing site, including development of acceptable plan to address potential risks in an adjacent waterway;
- permitting the construction and operation of a state-of-the-art 850 megawatt electric power generating facility in one of the most severe ozone non-attainment areas in the United States; and
- negotiating the environmental requirements for the financing of, and assisting in the permitting of a 750 megawatt power plant in Argentina.
This list, while far from comprehensive, exemplifies the breadth of our practice, the broad experience that we offer, and the types of successes that we have achieved for our clients. Through our work in the environmental area, we have developed an in-depth understanding of the environmental laws and regulations, and, just as importantly, the manner in which they are applied by federal and state agencies in permitting, enforcement and compliance contexts. This knowledge and experience is vital to a full and complete understanding of the legal, scientific and public-policy issues implicated, the anticipated areas of concern to the environmental regulators, and the options available to the client to achieve its business, litigation or regulatory compliance objectives. Those capabilities in turn allow us to keep our clients informed about their situation, their rights and their obligations, and the options available to them.
Comprehensive Practice. We assist clients in all facets of environmental law including compliance issues under federal and state air, water and waste programs, permitting of new and existing facilities, cultural resources and historical properties requirements, wetlands regulations, sale and acquisition of water rights, real estate transactions, public and private financings, environmental assessments and environmental management systems audits, defending citizens suits, and defending criminal, civil and administrative enforcement actions. Our work takes us all across the United States, throughout Europe, Asia, the Americas and the Far East. We serve a broad range of clients including financial services firms, core manufacturing operations, refining and petrochemicals operations, transportation companies, energy companies (E&P;, electric) real estate developers, local and state governmental entities and individuals.
Nationally Prominent Practitioners. Many of our lawyers are recognized nationally for their experience and accomplishments in the area of environmental law, and they are frequently asked to speak at seminars or to write on recent developments in environmental law. Our lawyers include former high-ranking officials from the Department of Justice, the Environmental Protection Agency and state agencies. Many of our lawyers have technical, scientific degrees. Moreover, our environmental lawyers are committed to working as a group and routinely assemble teams from various offices to assure that our clients receive service tailored to their needs.
Why Choose V&E;
Why Choose V&E;’s Administrative and Environmental Law Group? - Our practice is comprehensive, covering every aspect of U.S. environmental law in virtually every conceivable context including commercial, administrative, civil and criminal.
- Our practice extends throughout the United States and reaches international environmental issues on projects in South America, the Far East, India, and even former eastern bloc countries.
- Our lawyers have handled many landmark environmental cases under federal and state laws and have a documented track record of success in assisting clients in complex, contested litigation, regulatory and commercial matters.
- We can tailor our representation to each particular client’s needs by drawing on our in-depth knowledge of the environmental laws and regulations and our extensive experience in dealing with regulators on these issues in compliance, permitting and enforcement contexts.
- The breadth of our experience means that more than likely one of our lawyers has recently worked on a problem similar to yours. Our lawyers utilize that knowledge base to make their work for you efficient and effective.
- Our lawyers include former high-ranking officials of the U.S. Dept. of Justice with experience in enforcing environmental laws on the government’s behalf.
- Nearly half of our AEL lawyers also hold engineering and scientific degrees. Several are registered professional engineers, and several are nationally-recognized experts on environmental issues.
Practice Area Details
Administrative and Environmental Law
Litigation
Enforcement Defense
Regulatory Compliance
Project Siting and Development
Transactional Advice
Litigation
Toxic Tort
NEPA
Environmental Insurance
Toxic Tort
The filing of personal injury and property damage claims by residents in the vicinity of manufacturing facilities has become increasingly prevalent. These costly and potentially serious cases are typically based on alleged impacts on the real property and human health — whether from airborne or waterborne emissions, or as a result of fires, explosions, floods or some other emergency contingency. Many of these cases are quite complex procedurally, frequently consisting either of proposed class actions or the consolidation of a thousand or more individual claims into a single case. Moreover, the outcome in these cases often turns on highly technical scientific issues such as toxicology, epidemiology, and fate and transport and the application of these technical concepts to the legal causation of the plaintiffs' alleged injuries.
It is perhaps the complexity of these cases that most accounts for our track record of success in this area. Our knowledge of the underlying scientific issues, and our experience in litigating the procedural and substantive law issues have made us formidable defenders of our clients’ interests in these cases. Indeed, we have defeated many attempts to impose substantial liabilities upon our clients, including in some very high-profile matters.
Representative Matters
Client: A chrome plating company.
Matter: Alleged property damage sustained by homeowners from releases of chromium. We tried six cases to juries over four years.
Outcome: Won a no-liability, no damages jury verdict in leading case that paved the way for dismissal or favorable settlements in other cases.
Client: A transportation company whose pipeline ruptured during unprecedented severe storms leading to the largest inland oil spill in the history of the United States.
Matter: Consolidated claims for personal injury and property damages were tried to a jury in Jefferson County for almost three months.
Outcome: Take-nothing verdict for the client.
NEPA
V&E; is one of only a few law firms that has maintained a National Environmental Policy Act (NEPA) practice since the law’s inception. Our lawyers have litigated several important NEPA cases including those surrounding the construction of a deepwater port in Galveston, those surrounding the lease of the federally-owned Outer Continental Shelf to private industry for oil and gas exploration and production, and those surrounding the construction of the Wallisville Dam (which allowed that project to proceed). Our practice is most notable for its multi-faceted capabilities. Indeed, we have represented clients in the full range of NEPA issues including making threshold applicability determinations, monitoring the preparation and submission of Environmental Impact Statements (EISs), and defending the adequacy of the EIS from challenges by third parties. We have shepherded high profile, controversial projects including those that raise complex issues under other statutes such as the Endangered Species Act and the National Historic Preservation Act. Our experience in NEPA has led us to assist clients on NEPA issues across the country including in Alaska, California, Maine, Massachusetts, Puerto Rico, Florida, Alabama, Nevada, and Texas.
Representative Matters
Client: A major natural gas pipeline company.
Matter: A pipeline planned for Massachusetts.
Outcome: Successfully argued that FERC need not subject the pipeline to an EIS because it transported gas for an electric generating plant that was subject to NEPA’s EIS requirement.
Client: A major U.S. city, as a joint defendant with the Federal Highway Administration and the Texas Department of Transportation.
Matter: Six environmental groups sought to enjoin construction of a road segment.
Outcome: Successfully argued that construction did not require an EIS; led joint defense in discovery motion practice and trial briefing. We continued to represent the client as the judgment in favor of our client was appealed — and upheld — in the Fifth Circuit Court of Appeals.
Client: A major U.S. city.
Matter: Litigation brought by the Sierra Club to halt construction of a regional dam.
Outcome: Client’s project was allowed to proceed by the U.S. Court of Appeals, Fifth Circuit.
Environmental Insurance
Our practice combines the knowledge of insurance and environmental lawyers with that of trial lawyers who devote a substantial portion of their practice to environmental insurance coverage litigation. We advise clients on a wide variety of insurance-related legal problems — including defense for cleanup costs of contaminated property and Superfund sites as well as claims brought by governmental entities and private toxic tort plaintiffs. We also routinely advise clients on issues involving coverage disputes over pipeline explosions, chemical spills, oil spills, hazardous waste sites, flooding and drainage disputes, as well as claims for damages or injuries from asbestos, chlordane, PCBs, benzene, dioxin and other chemicals or products.
Representative Matters
Client: Power utility in Caribbean who incurred more than very substantial costs in cleaning up that oil spill when storage tank ruptured during Hurricane Hugo.
Matter: Sued the United States, based on Section 311 of the Clean Water Act, asserting that the spill was caused by an act of God.
Outcome: The suit was settled, and the client was reimbursed for all of its costs by its insurer and FEMA.
Enforcement Defense
Civil enforcement
Criminal enforcement
Superfund litigation
Natural resource damages
Civil Enforcement
Vinson & Elkins has successfully handled civil enforcement proceedings in matters arising under federal and state air, water and waste regulatory programs all across the United States. These complex cases demand incisive legal analysis through and regarding the application of state or federal regulatory programs that are often technically complex, ambiguous, and even contradictory. These cases are often very sensitive politically and increasingly have a high-profile demanding skilled handling of legal, scientific, public-relations and political considerations. Time after time, our lawyers have demonstrated their adeptness at successfully defending clients under the circumstances. While not every case brought by federal or state enforcement agencies can be defeated, our experience allows us to assist clients in identifying and achieving resolution on favorable terms. Moreover, because these enforcement matters can give rise to other problems, we frequently consult with V&E;’s experienced toxic tort litigators, labor law and white collar criminal defense lawyers to prepare the client for the myriad problems that can result from an enforcement action.
Representative Matters
Client: A transportation company whose pipelines ruptured during unexpected and unprecedentedly severe storms leading to one of the largest inland oil spills in the continental United States.
Matter: The United States sued our client under the Oil Pollution Act for more than $10 million in response costs and roughly $37 million in penalties.
Outcome: We counter-claimed for our client’s own response costs on the theory that the spill was caused by an act of God. On the eve of trial, the United States agreed to drop its claims and take nothing from our client.
Client: A large natural gas transmission company concerned about potentially massive remediation liabilities and serious enforcement pressure due to past practices in operating its pipeline systems.
Matter: Achieve a global resolution of all remediation liabilities and compliance issues that would assure client’s goal of unimpeded operations, an acceptable time to implement and avoidance of broad, open-ended cleanup obligations.
Outcome: Negotiated a single Consent Decree covering TSCA, RCRA, CERCLA and CWA violations at more than 100 facilities in 12 states and 6 EPA regions. When third parties sought to intervene to modify the terms of the settlement, we defeated this motion in the trial court and upheld that ruling on appeal.
Client: A Florida-based aerospace company.
Matter: Government sought debarment of company, with fines of more than $7 million, for many alleged RCRA violations.
Outcome: Negotiated the largest Supplemental Environmental Project (SEP) accepted by EPA Region IV whereby the company avoided debarment, paid less than 20% of the fine assessed and performed SEP projects totaling roughly $1 million for which the company received a dollar-for-dollar credit against the fines owed.
Client: A pesticide manufacturing facility.
Matter: Texas Water Commission (predecessor to the Texas Natural Resource Conservation Commission) sought a record fine for alleged hazardous and solid waste violations and surface water, soil and groundwater contamination.
Outcome: Negotiated a complex settlement that included a greatly reduced penalty, payments for supplemental environmental projects and a property value protection plan; as well as a comprehensive remedial action program.
Client: A major U.S.-based electric power company in the Virgin Islands.
Matter: Claims exceeding $1 million brought by the EPA for violation of the Clean Air Act, Clean Water Act, RCRA and TSCA.
Outcome: Client settled claims for nuisance value.
Client: A supplier of water-treatment chemicals.
Matter: Client threatened with enforcement action under the Emergency Planning and Community Right-to-Know Act for failing to make required filings.
Outcome: Agency abandoned threatened enforcement action after we demonstrated that its new interpretation, even if lawful, could not be applied retroactively as proposed.
Criminal Enforcement
Criminal sanctions are increasingly sought by local, state and federal authorities as punishment for violation of air, water and hazardous waste laws — often arising from administrative investigations or civil litigation. Moreover, the threshold for criminal enforcement in environmental cases is considerably lower than for other crimes. Indeed, as many courts have allowed prosecutions to proceed even though the violations would not be considered "knowing" in the traditional sense of "criminal behavior." Drawing on our own experience in criminal defense (our group includes three former federal prosecutors) and working in tandem with criminal defense lawyers from our white collar criminal defense group, we have defended clients in a wide array of criminal matters all across the United States including Alaska, Georgia, Pennsylvania, Virginia, New Mexico, Texas and the Caribbean. Many companies retain us to participate in environmental management audits designed to prevent any violations from occurring. We have structured and participated in such audits for major utility, chemical and energy companies. We have evaluated and, in some cases, prepared compliance management program plans for many clients so as to minimize their potential environmental liability.
Representative Matters
Client: A hazardous waste treatment company.
Matter: Multiple counts of violations of RCRA in a criminal action brought by the U.S. in Georgia.
Outcome: Negotiated a plea agreement insulating the company’s president and vice president from criminal charges; established an internal compliance program that satisfied the EPA’s suspension and debarment office; and negotiated a fine that was one-half of the amount sought.
Client: Company in petrochemical industry.
Matter: State and county prosecutors filed a criminal complaint alleging seventeen counts of criminal violations of the Texas Clean Air Act and the implementing regulations.
Outcome: Reduced case to a single count as to which client pleaded nolo contendere and paid only a modest fine.
Client: Four executives and managers of a pharmaceutical company.
Matter: Federal allegations of CWA violations.
Outcome: Worked with employer company and U.S. Attorney in a northeastern state to avoid prosecution of our clients, although the company pled to a CWA misdemeanor.
Client: A refinery.
Matter: Federal prosecution under CWA for multiple oil spills.
Outcome: Negotiated CWA misdemeanor plea.
Client: An agricultural chemical manufacturer.
Matter: Multi-year grand jury investigating alleged RCRA violations.
Outcome: Convinced United States Attorney not to pursue indictment of company or individuals.
Superfund Litigation
Our Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) practice was established in 1980, the same year the law was adopted. For two decades, we have represented clients in numerous major actions that have established landmark precedents, both administratively and judicially. We have worked extensively not only with the key liability concepts, such as the innocent land owner defense and divisibility, but also with the complexities of advocating these theories in court through factual and expert witnesses.
Led by a former Deputy Attorney General of the United States (who also served as an Assistant Attorney General of the Environmental and Natural Resources Division) and a former assistant section chief of environmental enforcement for the Justice Department during the early years of CERCLA's implementation, we have provided extremely creative solutions to CERCLA liability and excessive remedial cost problems. Our services have encompassed every facet of CERCLA-related issues, including counseling, advocacy and problem solving as well as non-litigation matters outside the formal CERCLA process. We have also utilized CERCLA offensively for our clients as a cost-recovery mechanism, and as an offset to claims of toxic tort, deceptive trade practice and fraud cases. Our work in this area has led us to being retained as a mediator at sites where the parties would like to resolve their disputes without the costs of formal litigation.
Representative Matters
Client: A railroad.
Matter: Claims that our client’s sales of a scrap metal for use as a raw material made it liable for the costs of cleaning up contamination at buyer’s manufacturing operations.
Outcome: The Fourth Circuit reversed a decision by the trial court imposing roughly $10 million on our client, and established an important new precedent limiting Superfund liability for a secondary material. See Pneumo Abex Corp. v. High Point, Thomasville & Denton Railroad Co., 142 F.3d 769 (4th Cir. 1998).
Client: A Fortune 50 company.
Matter: A highly charged, private-party, cost-recovery action involving seven sites in seven states with a potential liability exceeding $100 million.
Outcome: Developed novel theories of economic benefit and culpability for the contamination that led to resolution on highly favorable terms. Our client accepted substantially less than 20 percent of the total liability, despite having owned several of the sites for virtually all of their years of operation.
Client: A purchaser of more than 30 oilfield service facilities in 13 states.
Matter: Prosecution of a private-party, CERCLA cost recovery action.
Outcome: Obtained a settlement for about half of the original transaction’s consideration. Used CERCLA to support the recovery of hundreds of separate environmentally-related expenses.
Client: A large group of potentially responsible parties.
Matter: Developed and tried a liability case against the U.S. government, in a major CERCLA case brought by the U.S. at a very costly, multi-party site.
Outcome: U.S. found liable for its pro rata share of all site costs.
Natural Resource Damages
Natural resource damage claims, which can arise under several federal statutes as well as state law, are a sensitive, complex and growing area of environmental law. Our experience includes familiarity with the complex web of relationships among state and federal natural resource trustees as well as their authority, theories of recovery and available defenses. We represent private and municipal clients in both Superfund and private litigation and have also assisted clients in developing liability management strategies. When negotiation cannot satisfactorily resolve a matter, we also have the trial background to litigate liability issues and damages.
Representative Matters
Client: A potentially responsible party at a multi-party Superfund site.
Matter: State trustee threatened to require an exorbitant natural resource damages resolution for contamination of far-from-pristine natural resources by a metals reclamation facility.
Outcome: By publicizing state's demands at congressional oversight hearings, we were able to generate significant criticism of the state's approach and tactics so that a settlement agreement contemplating only modest restoration was ultimately agreed to.
Client: A major operator of diesel and gasoline pipelines running from the southwest to the northeast.
Matter: Claim by U.S. trustee for natural resource damages from largest inland oil spill in the United States and associated fire.
Outcome: Resolved claim for small portion of what was originally demanded.
Client: A large chemical company.
Matter: Targeted by group of PRPs as potentially contributing to contamination at a highly contaminated river site in southeast.
Outcome: Developed facts and theories demonstrating absence of any impact from client’s operations.
Compliance and Regulatory Issues
Our environmental compliance practice serves clients in all facets of environmental regulation. Seeking to provide value in an area that is often viewed by clients as a cost center, we are proud of our reputation as problem solvers. Our lawyers’ experience and, in many cases, technical capabilities enable us to engage the regulators in a meaningful discourse on the legal as well as scientific and engineering issues typically implicated by environmental regulatory programs. Together with our experience in litigating civil enforcement actions, these capabilities allow us to identify and achieve resolutions that are acceptable to both the client and the regulatory agency.
Our auditing practice is nearly as broad, including environmental due diligence work on hundreds of transactions, ranging from the sale of worldwide chemical manufacturing companies to minority investments in organic foods packaging operations. We publish a free monthly newsletter for environmental clients that describes the status of rulemaking and policymaking initiatives and other news of interest. The following list identifies the types of issues that we frequently advise clients on.
Waste Issues - Waste identification/classification
- Standards for hazardous waste treatment, storage and disposal facilities
- Recycling exemption issues
- Incinerator issues/trial burns
- Land disposal prohibition/treatment standards
- Closure equivalency demonstrations
- Remedial obligations
- Closure/corrective action
- Texas risk reduction standards
- Texas Voluntary Cleanup Program
- Hazardous waste generator/transporter standards
- Hazardous waste permitting/permit amendments
- Oil and gas waste disposal
- CERCLA/state Superfund issues
- Natural resource damages
- Solid waste landfills
- Groundwater monitoring requirements
- Medical waste issues
- Naturally occurring radioactive material (NORM)
Water Issues - Point source NPDES permitting
- Stormwater NPDES permitting
- Pretreatment requirements
- New source/new discharger issues
- Wetlands
- New source performance standards
- Oil spill liability issues
- Water rights issues
- State water quality permitting
- State water quality planning
- Toxic discharges/toxic hot spots
- Drainage/flood plain issues
- SPCC plans
- Air Issues
- State air permitting/BACT requirements
Air issues - Title V permitting
- State air quality/RACT regulations
- Nonattainment new source review/netting/offsets
- Attainment demonstrations
- Prevention of significant deterioration (PSD) permitting
- Contested case hearings on air permits
- Monitoring requirements
- Permitting and control requirements applicable to "Grandfathered" services
- Emissions banking/trading – strategy and transactions
- New source performance standards
- National emissions standards for hazardous air pollutants/MACT development
- Refining lead phasedown, vapor pressure, and reformulated gasoline regulations
- Indoor air quality
Other Issues - PCB regulations/PCB cleanup
- Pesticide registrations and cancellations
- Premanufacture notifications (PMN)
- Cultural resources/historic preservation
- Endangered species
- Mining regulation
- NEPA/Environmental impact statements
- Asbestos
- Coastal zone management
- Environmental insurance coverage/litigation
- Release reporting
- Underground storage tanks
- Lender liability
- Environmental assessments
- Emergency Planning and Community Right-to-Know Act
Auditing - Transaction-related environmental due diligence
- Environmental compliance audits
- Environmental compliance management systems
- Audit program design
- Corporate environmental policies
- Internal investigations
- Audit privilege and confidentiality issues
- SEC disclosure requirements
Project Siting & Development
The development of property for any industrial, commercial, residential or infrastructure purpose is highly regulated by federal, state and local laws. Environmental laws can determine both how the property will be developed and for what purpose. After financing issues, environmental issues are usually the most difficult and complex on any development project. Clients in the real estate and electric power industries routinely rely upon our environmental lawyers to steer them with our experience in applying environmental laws, through the broad array of land-use issues affecting site selection, acquisition and development. We help clients craft reasonable, cost-effective strategies to minimize environmental liability, obtain permits, manage the environmental impact statement process and manage environmental risks. We frequently provide avoidance counseling, advising clients on design methods that avert the regulatory arena.
Wetlands issues can be an important part of project siting with the potential to affect virtually every type of development, from residential subdivisions to industrial facilities. We are one of few law firms in the nation that has had a wetlands practice since the law’s inception. We have represented clients from Alaska to Puerto Rico and have dealt with virtually every facet of wetlands issues. We are also highly experienced with the laws protecting endangered species, historical sites and cultural resources — and the laws providing for redevelopment of brownfields. These issues tend to be complex and have the potential to be very controversial, particularly at the permitting stage. We have a great track record of helping clients resolve these issues in terms that do not impede or materially impact the project.
Water law issues can also be pivotal to the successful siting and development of a project, particularly in the western U.S. We routinely represent river authorities, subsidence districts, power producers, industrial clients, and developers in business deals, litigation and legislation involving water. The business deals have included all types of water transactions, including the sale, transfer, and use of water. We were actively involved in the Edwards Aquifer Litigation, and participated in the legislative and regulatory process involving Texas Senate Bill 1.
Representative Matters
Client: A large real estate development company.
Project: Successful permitting of a coastal finger-channel residential development and successful defense of a citizens suit challenging the project at the district court and Fifth Circuit levels.
Client: A national solid waste management company.
Project: Advised on strategies to develop a landfill on property containing scattered wetlands. Local opposition also resulted in a citizens suit under the Clean Water Act, which our client won on appeal at the federal Circuit Court level.
Client: A national golf industry organization.
Project: Prepared a comprehensive analysis of the effect of environmental regulations on the golf industry for presentation at a national golf industry conference. Also prepared a follow-up, two-volume desk reference on environmental issues related to golf course construction and operations.
Client: A levee district.
Project: Successfully challenged the U.S. Army Corps of Engineers’ interpretation of the Clean Water Act to enable client to proceed with project.
Client: A major electric power producer.
Project: Successfully acquired permit for dam to impound lake for cooling water for a coal-fired power plant. Also negotiated a memorandum of agreement under the National Historic Preservation Act with the Advisory Committee on Historic Preservation.
Client: A major independent electric power producer.
Project: A controversial 850 MW merchant power plant in Texas. We obtained, on a timely basis, all water supply, wastewater discharge, air emissions and other permits, also issuing the environmental permits opinion letter required to obtain bank financing.
Client: A major electric power producer.
Project: Permitting for a major cooling reservoir project with contested instream flow requirements, water quality, particularly dissolved oxygen and temperature and complex hydrologic issues. All permits — including water rights permits from the TNRCC and a Section 404 Permit from the U.S. Army Corps of Engineers — were obtained.
Client: A land developer.
Project: Convinced the U.S. Army Corps of Engineers to revise its wetlands delineation from 2700 acres to less than 30 acres in an arid, western state.
Client: A resort developer.
Project: Convinced the Corps to substantially decrease its wetlands delineation following drainage improvements; and thereby obtained permit for golf course fill and negotiated an incidental taking settlement.
Client: A resort developer.
Project: Resolving wetlands and Endangered Species Act issues implicated by developing a large golf and beach resort in Eastern Puerto Rico.
Transactional Advice
Environmental issues can play a pivotal role in corporate transactions. How a potential liability is evaluated and allocated (or not) can have material financial consequences for the parties to the transaction. In the transactional context, our role is two-fold: (1) assist the client in identifying and evaluating potential environmental liabilities including exposure for cleanup at on-site or off-site locations, potential exposure for fines and/or penalties, and future costs needed to come into or maintain environmental compliance; and (2) developing and implementing a strategy for allocating and managing these risks. Our depth of knowledge and experience in the programs themselves, their manner of application by regulatory agencies, combined with excellent negotiating skills and a deep network of contacts, enables us to craft creative, alternative solutions. The types of transactions that we routinely represent clients on include the following:
Asset-based financings - assist clients with development and siting issues including permits
- negotiate environmental provisions of key documents including the credit agreement, the EPC contract and any operating agreements
Public and private financings - assist in identifying environmental concerns and potential liabilities
- assist in drafting language for disclosure documents
Mergers and acquisitions - assist in identifying environmental concerns and potential liabilities
- assist in drafting and negotiating cost-allocation provisions and risk management protections
Our work in these areas has taken us throughout the U.S., and to Argentina, Brazil, India, Nicaragua, the Czech Republic and other nations.
Representative Matters
Client: A paper-recycling company.
Project: Client wanted to build a $150 million facility to recover energy from waste materials, but was concerned about the effects of high property taxes on its ROI. Another law firm advised there was no solution. V&E; realized that the project could be seen as a massive pollution control project, and assisted client in getting the regulatory agencies to agree with that interpretation, so that the project qualified for a $120 million tax exemption over 30 years.
Client: A consortium of real estate developers.
Project: Redevelopment of a suburban shopping center owned by the FDIC with soil and groundwater contamination from a former dry cleaning tenant. Several firms advised clients they would have to assume liability and clean-up costs, making the project unattractive to lenders. V&E; devised a complex agreement in which the property was subdivided into surface and sub-surface parcels, allowing developers to secure financing for the uncontaminated surface parcels. Neighboring homeowners were protected through a guaranteed buy-out plan, and a $10 million fund negotiated with the FDIC enabled a remediation group to purchase and clean-up the contaminated parcel.
Client: A major U.S. natural gas and pipeline company.
Project: Environmental matters relating to our client’s $3.3 billion acquisition of a major west coast electric utility company. This transaction served as a model for other natural gas supply and electric power producing companies.
Client: An international electric power producer.
Project: Served as lead counsel in the $1.4 billion acquisition of three cogeneration plants in New Jersey. Conducted due diligence review of plants, negotiated environmental provisions in the transaction documents, assisted in the transfer of the plants to the new owner, and advised the new operating company on environmental issues and $900 million in financing.
Client: A large Texas Refinery.
Project: To accommodate a complex project financing to fund installation of new process, we developed a unique permit-transfer mechanism and convinced the Texas permitting agency to adopt it. As a result, the client saved millions of dollars in financing costs.
Client: A large international, independent power producer.
Project: Construction and financing of an 850 MW combined cycle natural gas-fired power plant with associated gas pipeline and transmission lines in Buenos Aires, Argentina. Among other things, we negotiated environmental provisions in the loan agreement and project documents, finalized permitting issues and advised on insurance issues.
|
|
|
|
>> Back to Top |
|
|
|
|
