Environmental Due Diligence and Risk Management in Business Transactions
Adding value by identifying and resolving environmental issues before the deal is done
Virtually every business and real estate transaction involves environmental risks for the purchaser, seller, investor, tenant or lender. If the deal involves land, old buildings, manufacturing or materials handling, then environmental problems may exist. Taft’s environmental transactional attorneys understand these risks and use their significant experience to protect clients from environmental risks arising from the historic property use or business practices. Taft’s environmental transactional attorneys also understand how to account for environmental liabilities in the negotiation process to help ensure that these liabilities do not erode the value of your business transaction.
Beyond the Phase I
The Phase I Environmental Site Assessment is an important part of due diligence in any transaction, but a full evaluation of environmental risk goes much further. Taft’s environmental transactional attorneys know when additional investigation is required, what questions to ask, and what to do when a problem is discovered. Often, an environmental problem requires a report to a government agency. The business may need an environmental permit, or have long-standing compliance problems. The buyer often needs protection from environmental liability by qualifying for the “bona fide prospective purchaser defense” under the Superfund law. Taft’s environmental transactional attorneys help clients understand the risks both before and after closing. When an environmental issue needs to be resolved quickly, Taft’s environmental transactional attorneys bring their experience to bear to craft efficient solutions. While we cannot guarantee we can obtain permits or accomplish cleanups overnight, we understand what “time is of the essence” means.
Bringing the environment to the bargaining table
Taft’s environmental transactional attorneys work on all types of transactions across a broad spectrum of businesses. We represent buyers, sellers, landlords, tenants, lenders, banks, investors and private equity firms. In each context, clients value Taft’s counsel in making sure the deal structure and conditions protect them from identifiable environmental risks and contingencies. Taft’s environmental transactional attorneys are included in negotiations, advocating for their clients’ interests. Taft attorneys regularly draft the environmental, escrow and indemnity agreements that govern cleanups and other environmental obligations after closing.
Managing and not simply avoiding the risk
Sometimes a deal just makes good business sense. Therefore, Taft’s environmental transactional attorneys don’t just identify and evaluate environmental problems. The hallmark of Taft’s environmental transactional practice is finding cost-effective ways to resolve and manage environmental risks so they do not defeat the deal. Solutions may involve allocating risk among the parties, assigning responsibility for cleanup after closing, negotiating an agreement with a government agency, qualifying for a cleanup liability defense, setting up an environmental escrow fund or obtaining liability insurance. Certainly, we have advised clients against a deal due to environmental problems. But if there is a way to do the deal while protecting both the client and the environment, we’ll find it.
After the deal is done
A new acquisition often includes new environmental responsibilities. Permit conditions must be met, treatment systems must be operated, and environmentally sensitive areas must be properly managed. Taft’s environmental transactional attorneys make certain their clients understand these ongoing obligations. If the deal is a divestiture, Taft attorneys advise the former directors, officers, shareholders and corporate successors of their ongoing exposure and the appropriate safeguards against environmental risks. In an age when cleanup obligations can follow former owners and operators for decades, these services are indispensable.
Know the territory
Taft’s environmental transactional attorneys have facilitated transactions in every state and around the globe. We frequently work on transactions involving multiple sites and jurisdictions, and we negotiate with the appropriate authorities. But whether a transaction involves one site or one hundred, we’ll bring the same thoroughness and dedication to the table.
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