Blending legal knowledge, experience and business savvy to provide effective solutions to environmental issues.
Locke Lord's environmental team includes dedicated practitioners who understand the many dimensions of environmental law and the different ways these laws affect businesses and individuals. Our extensive environmental experience helps clients navigate and respond effectively to regulatory compliance issues, environmental liability concerns, civil and criminal enforcement actions and citizen complaints.
At Locke Lord, our environmental lawyers 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 practice includes agency negotiation and advocacy for our clients at the federal, state and local levels across the United States. We write, speak and teach about environmental legal developments that affect our clients' businesses. As a result, companies frequently retain us as national environmental counsel.
Because understanding and solving client problems in the environmental arena requires the exercise of both legal and technical skills, a lawyer with technical training has a decided advantage in assisting clients in this area. Our lawyers have hands-on experience and training in chemistry, biochemistry, environmental science, biology, marine biology, ecology and evolutionary biology and environmental engineering. Many have also worked in environmental agencies and/or environmental consulting firms prior to joining Locke Lord. This experience provides us with a deep understanding of the issues affecting our clients’ businesses and allows us to develop thoughtful and sophisticated responses to the environmentally sensitive issues our clients often face.
Locke Lord’s environmental practice is first and foremost a substantive one. Clients call upon us for practical and strategic guidance in managing their environmental issues, from simple and routine compliance questions to bet-the-company environmental enforcement, litigation or emergency response. We draw upon our substantive and technical knowledge to guide clients in establishing and maintaining regulatory compliance, developing and permitting major projects and improvements, negotiating with regulatory agencies, trying environmental lawsuits and contested case hearings, and managing environmental remediation and response liabilities. We also draw upon the insights and experience from our substantive practice to work closely with lawyers from our corporate, real estate and litigation departments on a wide range of environmental issues, bringing our environmental experience to bear on behalf of all of our Firm’s clients.
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, spanning 40 states and the District of Columbia. We focus on the strategic utilization of available grant and tax incentive programs, site investigations that support our clients' specific objectives, assessment of regulatory and litigation risks, oversight of technical evaluations that characterize exposure pathways that ultimately drive risk and execution of remediation strategies that reinforce risk-based cleanup. We also work on scores of voluntary cleanup and corrective action projects each year. Our national practice enables 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.
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
Navigating the complex regulatory landscape of environmental law requires practitioners with an extensive knowledge of the rules, and equally important, a practical understanding of their application. Locke Lord's environmental lawyers are experienced in effectively representing clients before regulatory authorities. We appear before the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers and other federal and state agencies around the country.
Permitting is an integral part of the environmental regulatory regime, and our lawyers have extensive experience in obtaining air, water (including wetlands and stormwater), landfill gas, solid and hazardous 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.
Locke Lord’s environmental lawyers have extensive experience in helping clients across industries, including energy, oil and gas, manufacturing, automotive and real estate, in their environmental crisis management and response efforts. We partner closely with our clients to anticipate and prepare for environmental emergency incidents or events, including risk mitigation and contingency plans. Our lawyers have helped develop bespoke and cost-effective approaches for auditing operations and strategies to comply with evolving complex regulatory programs impacting clients’ operations in multiple states.
When unfortunate crises strike, our team quickly mobilizes to provide our clients with a comprehensive approach. We collaborate with members of our litigation team to advise on managing onsite response, assist with compliance and reporting requirements and prepare for and resolve government investigations or third-party litigation.
Endangered Species and Wildlife Conservation
A significant component of our environmental practice involves counseling and representation on issues relating to endangered species and wildlife issues under the Endangered Species Act, Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, and other federal and state wildlife protection statutes. Our practice is particularly focused on the siting, development and permitting of energy and infrastructure projects. We work with clients and their biological consultants from the earliest stages of a project to identify potential wildlife issues and develop strategies for impact avoidance or minimization and effective management of the agency consultation process. Where a permit may be necessary or desirable, we have extensive experience in developing habitat conservation plans, crafting innovative and cost-effective approaches to complex biological and regulatory issues, such as take estimation, monitoring regimes and mitigation strategies.
Our environmental lawyers are recognized leaders in this area, particularly with respect to incidental take permitting for Indiana and northern long-eared bats and bald and golden eagles — species that have an increasingly frequent and significant impact on the development of renewable energy and midstream projects, in particular. We have obtained multiple incidental take permits for these species on behalf of our clients and developed strategies for avoiding permitting for countless other projects. Following project siting and permitting, we regularly advise clients on strategies to manage wildlife impacts during all phases of project development and operations.
Energy and Infrastructure Projects
Our environmental lawyers routinely work on energy facility siting and development, including development of inland and coastal public utility and merchant energy projects, cogeneration facilities utilized by industrial and other private clients and renewable energy sources, including wind, solar, biomass and hydroelectric projects. We serve the oil and gas industry regarding environmental issues associated with upstream, midstream and downstream issues, including Clean Air Act compliance, Safe Drinking Water Act issues associated with underground injection systems, naturally occurring radioactive materials, remediation of petroleum and hazardous substance contamination, Superfund issues and more.
Locke Lord environmental lawyers' infrastructure work also includes extensive experience in managing the National Environmental Policy Act (NEPA) review process for federally authorized or funded projects. Our lawyers 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, crude oil and natural gas pipelines and renewable energy projects. In addition to providing guidance on the scoping, review and editing of NEPA documents, we focus on helping to manage the NEPA process to build public support and enhance the project. When NEPA challenges do arise, Locke Lord environmental lawyers are skilled in responding to and defending NEPA challenges.
Locke Lord works day in and day out with upstream environmental issues. Our broad experience, ranging from “environmental defect” arbitrations to air emissions permitting and compliance helps our clients make good decisions when buying, selling or financing upstream assets, and in addressing environmental liabilities related to their operation.
• Environmental Defects
Transactions involving the sale of oil and gas assets frequently involve the identification and quantification of “environmental defects” within a compressed time period, using the resulting information potentially to negotiate modifications to a transaction’s purchase price. Our deep knowledge regarding environmental issues affecting oil and gas assets, including those getting increasing regulatory scrutiny, such as air emissions compliance, green completions, VOC/methane control, Leak Detection and Repair (LDAR), electrical grounding, hydrogen sulfide control, and Spill Prevention Control and Countermeasure (SPCC) planning, helps our clients identify and evaluate risk within crucial time periods. Because of our knowledge and our relationships with environmental consultants having E&P experience, as well as our national reach, we effectively assist clients in assessing, quantifying and documenting “environmental defects” that may affect their transactions. In addition, when parties to a transaction cannot reach agreement regarding the existence or value of environmental defects, we represent them in dispute resolution procedures, including arbitration, designed to finally resolve environmental defect matters as part of closing a transaction.
• Remediation and Closure
We represent oil and gas operators before state and federal agencies and in disputes with surface owners regarding investigating and remediating spills and releases and in undertaking pit closures and related reclamation obligations. Our experience includes responding to emergency incidents that impact or threaten surface water or ground water as well as addressing historical releases from prior operations. In addition, our attorneys are well versed in all available risk-based approaches and methodologies permitted by applicable law to minimize the costs of such remediation and closure obligations when they arise.
• Compliance and Enforcement
With time, the environmental regulatory reach over upstream operations has dramatically increased. We have broad knowledge regarding the myriad requirements governing oil and gas activities, including cutting-edge issues, such as VOC detection and control, greenhouse gas emissions and reporting, air emissions permitting and compliance, endangered and threatened species, hydraulic fracturing and induced seismicity. Our lawyers have extensive experience in the day-to-day environmental and legal issues that face oil and gas producers, from obtaining permits to resolving issues with regulators. We also advise clients and interact with regulators and legislators regarding issues affecting the oil and gas industry. When an operator’s activities receive attention from federal or state regulatory authorities that threaten or culminate in an enforcement action, we are well prepared to aggressively defend such actions, all while giving practical and creative advice regarding liability mitigation and resolution associated with enforcement proceedings.
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. 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. We have also 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.
Environmental Auditing and Liability Management
Our environmental lawyers 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. 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.
We coordinate liability management strategies by working with regulatory authorities and other response team members as response activities continue.
A unique area within our experience 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 (Environmental Impairment Liability and Environmental Cleanup and Liability Policies)
Coverage specifically tailored for real estate transactions (Real Estate Environmental Liability and Lender Environmental Collateral and Protection Liability Insurance)
Protections for environmental professionals (Professional Consultant's Liability and Professional Environmental Consultant's Liability)
We handle litigation and appeals of environmental liabilities in all contexts, including actions involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Clean Air Act, Rivers and Harbors Act, Safe Drinking Water Act, NEPA, state environmental statutes and toxic tort claims.
Locke Lord environmental lawyers regularly represent clients in environmental indemnity litigation. We are also able to put our indemnity litigation experience to use when working on transactions, placing our clients in the best position to realize the benefit of their bargains.
Environmental Property Condition Issues
We regularly assess the impact of asbestos containing material (ACM), lead-based paint (LBP), lead-in-drinking water, PCBs in building materials, radon and mold in our clients' existing properties and properties under consideration for acquisition (multifamily, retail, commercial and industrial).
We 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.
We have considerable experience addressing indoor air quality (IAQ) issues and resolving tenant relations issues associated with IAQ issues.
Environmental, Social & Governance (ESG)
Increasingly, environmental, social and governance (ESG) issues are becoming core business priorities for companies, their boards and investors. They are being held responsible by investors, business partners, consumers and other stakeholders for ensuring that their activities foster sustainable operations for the benefit of investors, employees and the communities in which their businesses reside. In addition, national and international legal and regulatory developments, as well as evolving standards, have placed new pressures on companies to collect, analyze and disclose different data on the impact of their business operations and their supply chains.
Our team members have a comprehensive understanding of ESG issues and practices that focus on, among other areas:
The sale, acquisition and merger of assets, businesses and companies raise important and thorny environmental liability issues. Our environmental lawyers collaborate with our corporate, real estate and other transactional lawyers to ensure that appropriate structures and deal terms account for environmental issues.
Our knowledge and experience make 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 can assist our clients in selecting environmental consultants best suited for a particular transaction based on the transaction's type and scope.
Once we have identified the environmental risks and liabilities associated with a transaction, our familiarity with applicable rules, regulatory programs and risk management tools enables us to carefully document the parties' negotiated allocation of risk, whether through access and remediation agreements, escrow agreements or indemnity provisions.
Our water rights work includes representation of a broad range of clients in transactional, regulatory and litigation matters, from owners of groundwater and surface water rights, to clients who need to secure water supplies and water related services, to a major municipality in connection with its development, construction and operation of a surface water treatment plant. We have extensive experience in working with state and local water jurisdictions to obtain needed licenses, permits (construction and operational), amendments, renewals and other authorizations involving water rights, wastewater facilities, wetlands, storm water facilities and desalination plants. We negotiate all types of water-related contracts and legal relationships, from groundwater purchase and sale agreements, to surface water and treated water supply contracts, to contracts for the design, construction and operation of water treatment facilities, to contracts for water supply, wastewater and sewer services.