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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Thursday, August 22, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE webinar will address the environmental risks associated with commercial real estate purchase and lease transactions and potential liability for buyers under federal and state laws. The panel will discuss how counsel can guide their clients through the transaction process and in what ways they can help mitigate their clients' risks of liability--including through due diligence, contractual drafting, and insurance considerations.

Faculty

Karl R. Heisler
Partner
King & Spalding LLP

Mr. Heisler specializes in enforcement defense and incident response. He has managed the legal fallout from a wide array of environmental and workplace safety incidents, ranging from fires and explosions to pipeline releases and the abandonment of hazardous waste. Mr. Heisler has over two decades of experience responding to governmental investigations involving the CAA, CWA, RCRA, CERCLA, and OSHA. He also dedicates a significant portion of his practice to environmental transactions, providing advice and counsel on environmental due diligence and the availability of transactional defenses, and he routinely negotiates representations, warranties, and indemnifications. Mr. Heisler has assisted with the acquisitions and divestitures of several entities subject to government investigations arising out of environmental and workplace safety incidents. His clients include public and private entities in the energy, chemical manufacturing, construction and waste management industries, as well as lenders, private equity and real estate firms with interests in these industries. Mr. Heisler is a prolific speaker on environmental law and incident response and for over a decade, has taught the environmental transactions course for the Environmental Law Institute, a leader in non-partisan research and environmental education.

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Jeff Corey
Corporate Counsel, Environmental and Post-Mining Closure
Rio Tinto

Mr. Corey is a corporate environmental counsel in the mining and metals industry who focuses on environmental sustainability and post-mining site management. He works on a range of environmental issues, including CERCLA claims, state-level remediation regimes, and international compliance and risk management. Mr. Corey is part of a diverse team of attorneys and other professionals committed to environmental stewardship in one of the world's most important industries.

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Sydney Weiss
Associate
King & Spalding LLP

Ms. Weiss is a member of the Environmental, Health and Safety Practice Group in King & Spalding's Chicago office. As both a scientist and engineer, she brings a unique perspective to her client work on environmental issues. Ms. Weiss worked at the U.S. Environmental Protection Agency in the Water Division where she developed water quality standards for PFAS, E.coli, salts, and other emerging contaminants. She has extensive regulatory experience, having worked at four public agencies throughout her career. Ms. Weiss has also worked on matters involving renewable energy, ESG, greenwashing, carbon markets, and Article 6 of the Paris Climate Agreement. 

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Description

A significant step in making a commercial real estate purchase is conducting an environmental due diligence investigation. With federal and state governments enacting stricter environmental laws, including the listing of new hazardous substances, buyers must check for potential environmental hazards to mitigate possible future liability that may be imposed on them under these laws.

For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the U.S. Environmental Protection Agency, a state agency, or a private party may sue a current or past owner or operator of a contaminated property for costs associated with cleaning up hazardous materials. Property owners who purchased property with preexisting contamination may be liable for cleanup costs, even if not responsible for the contamination, unless they are subject to certain CERCLA defenses, most of which require that the buyer conducted "all appropriate inquiries" and fulfill certain continuing obligations.

Therefore, with buyers taking on potentially costly environmental liability with a commercial property purchase, counsel must understand what those risks are and how to help their clients mitigate those risks through the due diligence process (including environmental site assessments), contract drafting (purchase agreements and indemnification clauses), and insurance considerations.

Listen as our expert panel addresses the environmental risks associated with commercial real estate purchases and offers best practices for guiding clients through the purchase transaction while mitigating their risk of liability under federal and state environmental laws.

Outline

  1. Introduction: environmental liability risks for buyers
    • CERCLA and RCRA
    • State law
  2. Required due diligence
    • All appropriate inquiries
    • Environmental site assessments
    • Preserving statutory defenses through post-acquisition "reasonable steps"
  3. Drafting to mitigate risk
    • Purchase agreements
    • Indemnification clauses
    • Representations and warranties
    • Remedies
  4. Insurance considerations
  5. Practitioner takeaways

Benefits

The panel will review these and other key considerations:

  • How do federal and state environmental laws impose potential environmental liability on real property buyers?
  • What actions should the environmental due diligence process encompass for buyers?
  • How can counsel mitigate client environmental risk in contractual drafting?
  • What insurance considerations should counsel and their clients contemplate for mitigating environmental risk in commercial real estate purchases?