Overview
Locke Lord Bissell & Liddell's team of environmental attorneys is one of the largest groups of dedicated environmental practitioners in the country. We recognize the many dimensions of environmental law and the different ways it affects businesses and individuals. Our extensive environmental experience helps clients navigate and respond effectively to a growing number of regulatory compliance issues, environmental liability concerns, civil and criminal enforcement actions and citizen complaints.
We understand the nature of our clients’ businesses; many of our attorneys have hands-on experience and training in chemistry, biochemistry, environmental science and geology. Several of our environmental attorneys worked in environmental agencies and/or environmental consulting firms prior to joining Locke Lord. Our experience allows for thoughtful and targeted response to environmentally sensitive events when they arise.
That same experience is pivotal in winning contested hearings, establishing and maintaining regulatory compliance, negotiating with regulatory agencies, trying environmental lawsuits, obtaining environmental permits, managing the legal aspects of environmental response activities and structuring and documenting transactions. We work closely with attorneys from our real estate, corporate and litigation practice areas to provide a wide range of experience to environmental issues.
At Locke Lord, our environmental attorneys focus on both the legal and practical aspects of environmental regulation. Our involvement extends beyond merely knowing the law – we also help shape the law as it develops and is applied. Our attorneys routinely participate in rulemaking efforts and are members of national, state and regional environmental planning groups. In addition, companies frequently hire us as national environmental counsel. We write, speak and teach about environmental legal developments that affect our clients' businesses.
Brownfields, Urban Redevelopment and Contaminated Property Remediation
Locke Lord lawyers have substantial experience in brownfields and brownfields-type redevelopment of urban infill properties and related-transactional work. Our brownfields work begins with analyzing the current condition of the property to determine whether the property is suitable for the intended use, or whether reasonable remediation will bring it to a suitable condition. If remediation is required, we guide the efforts so that the remedial activities address environmental impacts on and off-site (if any), negate human health risks and lead to regulatory closure in a timely and economic manner. As part of our analysis, we specifically look ahead to the sale of the property. Thinking like a prospective purchaser allows us to prepare the property for its intended use, with the most profitable sale and the least remaining liability concerns for either the seller or purchaser.
Locke Lord brownfields and brownfields-type work spans 35 states, and Locke Lord environmental lawyers are currently leading site remediation activities and working with the appropriate regulatory agencies (both in and out of voluntary cleanup programs) in California, Colorado, Connecticut, the District of Columbia, Florida, Georgia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oklahoma, Texas and Virginia.
In addition to brownfields and brownfields-type redevelopment work, we work on scores of voluntary cleanup and corrective action projects each year. Our national practice has enabled us to understand the regulatory framework in different states and to develop close working relationships with consultants, regulators and local project teams in these jurisdictions.
We translate our knowledge from the field to the transaction. In our brownfields and urban redevelopment transactional work, our focus is on analyzing environmental risks and allocation of liabilities in connection with the purchase, sale and development of these properties and developing transactional structure and documentation to help reduce the potential for environmental liability.
Compliance Counseling and Permitting
More so than perhaps any other area of law, environmental law is driven by numerous complex and detailed statutes and regulations at both the federal and state levels, and often the local level as well. Navigating this complex regulatory landscape requires practitioners with an extensive knowledge of the rules, and equally important, a practical understanding of their application. Locke Lord’s environmental attorneys have extensive experience counseling clients on the many requirements that apply to their businesses, in a wide variety of industries ranging from petroleum refining and chemical manufacturing to foodstuff manufacturing, from metal forging to homebuilding and commercial development.
Our clients benefit from the solid and productive working relationships our lawyers share with many representatives of the regulatory agencies before which our clients appear. In an age where greater governmental authority is delegated to administrative agencies, Locke Lord's environmental attorneys are experienced in effectively representing clients before regulatory authorities. We appear before the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers and state agencies around the country.
Permitting is an integral part of the environmental regulatory regime, and our attorneys have extensive experience in obtaining air, water (including wetlands and stormwater), landfill gas, waste and underground injection control permits, among others, as well as in permit enforcement and modification proceedings and contested case hearings before regulatory agencies. In many cases, we can identify operational or process changes that will enable a client to avoid the need for a permit, or to take advantage of a general permit or permit by rule that eliminates the need for a formal permitting process. When an individual permit is necessary, however, Locke Lord’s environmental attorneys are proficient at negotiating permit terms and conditions with built-in operational flexibility. Our clients save time and money by avoiding the need for subsequent requests for permit modifications – an action that can provoke citizen protest and public criticism.
Where public involvement in the permitting process is required, our attorneys know how to proactively assess and address community concerns that might otherwise slow the permit process. Our pre-application community relations strategies frequently help diffuse protests through increased community understanding. If a client encounters active opposition to its permit request, our attorneys help resolve such protests formally and informally. Our prevailing philosophy is to encourage an understanding among all parties so that disputes can be avoided or greatly simplified.
Energy and Infrastructure Projects
Clients regularly call upon Locke Lord attorneys for their experience in energy related environmental matters. We routinely work on wind farm permitting and development and the environmental issues associated with alternative fuels, including landfill gas, ethanol, biodiesel, coal gasification and shale oil. We serve the oil and gas industry regarding environmental issues associated with exploration and development of oil and gas and construction of pipelines, including, but not limited to, Safe Drinking Water Act issues associated with underground injection systems, naturally occurring radioactive materials, cleanups associated with evaporation pits and Superfund issues.
Locke Lord environmental attorneys’ infrastructure work includes extensive experience handling compliance issues under the National Environmental Policy Act (NEPA). Our attorneys work with clients and consultants on Environmental Assessments (EA) and Environmental Impact Statements (EIS) for various types of federally funded or permitted projects, including airport expansions and highways. In addition to their hands-on participation in the analysis, drafting, and editing of EAs and EISs, Locke Lord attorneys assist clients in responding to the public and strategically using the public process to the advantage of the project. Although not desirable, where citizens contest the NEPA process in court, Locke Lord environmental litigation attorneys are skilled in defending NEPA challenges.
Enforcement Defense
Citizens and the regulated community put increasing pressure on governmental authorities to enforce environmental requirements consistently. Locke Lord's environmental lawyers have years of experience in representing clients facing actual or potential enforcement actions, whether as a result of citizen or employee complaints, routine agency inspections, historical releases resulting in a corrective action process or unanticipated upsets, exceedances or releases. Our attorneys have broad experience in the defense of administrative and civil enforcement actions, and our environmental criminal defense team includes experienced and respected criminal defense attorneys.
As soon as our clients receive a notice of violation or of an enforcement action, we gather the facts and begin communicating with the regulators and prosecutors to best position our clients. In many cases, we are able to head off formal enforcement actions entirely and coordinate the informal resolution of alleged violations to prevent any negative publicity or impact on the client’s compliance history.
If formal enforcement cannot be avoided, we negotiate agreed enforcement orders and work to ensure that agency enforcement approaches are consistent with established penalty policies. Our creative and unique approach to these cases has often led enforcement authorities to narrow or completely drop individual claims. In other cases, we have obtained significant reductions in proposed penalties and assisted our clients with the development and implementation of Supplemental Environmental Projects (SEPs) to redirect fines and penalties to projects that will provide tangible environmental and public health benefits to the community and increased goodwill for the client. Examples of SEPs we have helped to develop and implement range from producing training videos for stormwater compliance to wetlands improvement projects to community cleanup programs.
In the criminal context, Locke Lord has experienced and respected attorneys in the area of white collar and environmental criminal defense, and our attorneys have been involved in some of the most high-profile cases and enforcement initiatives. We have successfully defended many individuals and companies against environmental criminal prosecutions brought by the U.S. Department of Justice, as well as state and local authorities in many jurisdictions across the country. In criminal prosecutions where the stakes are often the highest, Locke Lord’s environmental criminal defense team has the experience, the knowledge, and the critical relationships with prosecutors to provide our clients with the best possible defense.
Transactional
The sale, acquisition and merger of assets, businesses and companies raise important and thorny environmental liability issues. Our environmental attorneys are closely integrated with our corporate, real estate and other transactional attorneys. This tight integration ensures that our environmental attorneys are involved in transactions early on, when appropriate structures and deal terms can still be adapted (if and as necessary) to account for environmental issues. Likewise, our understanding of the transaction structure and of our clients' most important goals, objectives and concerns in the transaction enable us to focus on the issues most critical in the transaction at hand and to help clients understand the nature of the issue and the magnitude of the risks involved.
The extensive knowledge of state and federal environmental rules that Locke Lord’s environmental attorneys bring to bear in our extensive compliance counseling, remediation and enforcement defense practices makes us particularly well-suited to coordinate and conduct the environmental due diligence necessary to identify critical risks and liabilities in a transaction. Due diligence frequently requires the engagement of an environmental consultant to conduct Phase I Environmental Site Assessments, Phase II subsurface investigations, compliance reviews, and other technical assessments. We assist our clients in selecting environmental consultants best suited for a particular transaction based on the transaction’s type and scope, and work closely with the consultant to manage and guide their activities and ensure their work product provides the necessary information, presented in a manner that is most appropriate and useful for our client.
Once we have identified the environmental risks and liabilities associated with a transaction, our familiarity with applicable rules, regulatory programs and risk management tools such as environmental insurance and guaranteed fixed-price remediation contracts enable us to devise effective strategies for reducing and allocating environmental liability. We also have excellent drafting skills, which enables us to carefully document the parties’ negotiated allocation of risk, whether through access and remediation agreements, escrow agreements or indemnity provisions. Locke Lord's experience in litigating environmental indemnity and liability claims provides us with keen insight into how specific liability allocations or contract language may be interpreted or enforced, helping to ensure that our clients are likely to actually realize the benefit of their bargain.
We also serve as special environmental counsel on transactions where other law firms are the lead transactional attorneys. We apply these same skills, knowledge and experience to the transaction and work closely with outside counsel and the client to conduct environmental due diligence, effectively address environmental issues, and strategically document the allocation of risk.
Environmental Litigation
Locke Lord’s environmental lawyers are equally at home with environmental litigation. We handle litigation and appeals of environmental liabilities in all contexts, including but not limited to actions involving CERCLA, RCRA, the Clean Air Act, Rivers and Harbors Act, Safe Drinking Water Act, NEPA, state environmental statutes and toxic tort claims. Our environmental lawyers were on the district and Fifth Circuit legal team representing Cooper Industries in Aviall Services, Inc. v. Cooper Industries, 263 F.3d 134 (2001), reversed en banc, 312 F.3d 677 (5th Cir. 2002), reversed, 543 U.S. 147 (2004), which created new law on CERCLA cost recovery actions. We regularly handle litigation involving state and federal Superfund sites, including the Sikes and Malone Superfund Sites in Texas and the Casmalia Superfund Site in California. Our attorneys are respected by their peers and are often called upon to lead steering committees at state and federal Superfund sites.
Our environmental litigation expertise extends beyond traditional CERCLA and other traditional environmental claims. Locke Lord environmental attorneys regularly represent clients in environmental indemnity litigation. We handled the definitive case in the Fifth Circuit on environmental indemnity claims, Fina, Inc. v. ARCO, 200 F.3d 266 (5th Cir. 2000). We have obtained favorable judgments and rulings on many issues, positioning our clients to obtain favorable settlements. Our environmental attorneys are also able to put their indemnity litigation experience to use when working on transactions, placing our clients in the best position to realize the benefit of their bargains.
Environmental Auditing and Liability Management
Locke Lord’s environmental attorneys frequently assist clients in conducting privileged environmental compliance audits of their operations. Working closely with our clients’ environmental managers and carefully selected consultants, we can identify instances of noncompliance or potential risks and devise effective strategies for both correcting the issue and minimizing the associated liability. Often, state and federal audit statutes or programs provide incentives for self-disclosure of violations, and our attorneys have extensive experience in managing such disclosures to maximize the amount and scope of liability protection received under these programs, in addition to knowing when and when not to take advantage of them.
In addition to environmental auditing, we assist clients in the development of environmental management systems (EMS) to provide ongoing compliance assurance and verification for their operations. A well-designed EMS can become an unintrusive and self-perpetuating tool that increases our clients’ degree of compliance, while reducing the effort and resources required to achieve and maintain that compliance.
When dealing with industrial upsets and accidents, Locke Lord environmental attorneys have extensive experience in planning appropriate responses before the need for remedial action. We help clients conduct accident investigations and interviews, manage the press and identify and preserve evidence – all critical actions in the aftermath of an unforeseen event.
Our attorneys coordinate liability management strategies by working with regulatory authorities and other response team members as response activities continue. Our knowledge of industry, government, and the people involved help us coordinate on multiple levels as clients frequently face overlapping regulatory, civil litigation or criminal proceedings in connection with a single episode or event.
These same skills, experience, and knowledge translate into our counseling of clients on reporting of financial liabilities, including FIN 47/FAS 143 analyses.
Environmental Insurance
For six consecutive years, leading industry publications have ranked Locke Lord as the number one provider of insurance and reinsurance related services in the United States. A niche area within our recognized expertise is insurance for environmental-related liabilities. Our insurance and non-insurance clients alike rely on our insight and experience to guide them through the drafting, procurement and claims resolution issues attendant to some of the most sophisticated insurance products in the market, including: coverage for clean-up responsibilities (e.g., Environmental Impairment Liability (EIL) and Environmental Cleanup and Liability Policies (ECL); coverage specifically tailored for real estate transactions (e.g., Real Estate Environmental Liability (REEL) and Lender Environmental Collateral and Protection Liability Insurance); and protections for environmental professionals (e.g., Professional Consultant's Liability (PC) and Professional Environmental Consultant's Liability (PECL)).
Environmental Property Condition Issues
As part of Locke Lord’s environmental risk management work, we regularly assess the impact of asbestos containing material (ACM), lead based paint (LBP), lead-in-drinking water, radon and mold in our clients' existing properties and properties under consideration for acquisition (multi-family, retail, commercial and industrial). We develop cost-effective, practical solutions to these real world issues.
We also assist clients in developing, implementing and managing Operations & Maintenance Programs associated with LBP and ACM, contracting for the appropriate management of these programs during renovation and demolition activities, and the financial reporting of these and other types of environmental liabilities.
Property condition issues – real or perceived – can become a tenant relations issue. Locke Lord attorneys have considerable experience addressing indoor air quality (IAQ) issues and resolving tenant relations issues associated with IAQ issues. We have managed and resolved IAQ issues in hotels, high rise office buildings, multifamily residential communities, and low rise retail.