Due Diligence and Risk Assessment in Transactions
We routinely address environmental risks and issues in a broad array of business transactions, including corporate acquisitions and real estate development. We negotiate contractual provisions to allocate risk in a manner designed to meet client objectives and close transactions. We also conduct all necessary pre- and post-closing transfers and amendments as well as completing post-closing environmental investigation and remediation, if called for under the terms of the transaction. Whether we represent the buyer, the seller, or the lender, we understand that our client does not want surprises regarding environmental risks, and we tailor our services to address their concerns.
Our extensive experience includes the following:
- Due diligence document coordination and review. We have significant experience in determining the appropriate scope of environmental due diligence; working with environmental consultants to produce timely and useful Phase I and Phase II site assessments; and reviewing such assessments to satisfy due diligence requirements.
- Obtaining liability protections. We are well-versed in conducting environmental due diligence so that our clients are eligible for available environmental liability protections under state and federal laws.
- Advise on and allocate environmental risks. We advise buyers, sellers and lenders on the environmental risks identified in a transaction, and draft and negotiate contractual provisions to address environmental obligations and liabilities, pre and post-closing. We have used innovative trusts, annuities and insurance to facilitate the transfer of corporate assets without environmental liabilities.
- Permit transfers. We identify permits that will be need to be transferred or amended in light of a transaction, and then conducting the pre and post-closing transfers or modifications.
- Archaeological and historic resources. In the course of real property development, we assist our clients in identifying potential impacts on archaeological and historic resources, and then complying with legal requirements. We also assist with project planning to avoid impacts when possible.
- Water rights. Negotiating and documenting water rights acquisitions, sales and leases. Advising clients on assured water supply issues, project and golf course water acquisition and usage, and water use and acquisition for real estate development projects.
- Wetlands management. We determine the existence of wetlands as part of the due diligence process, and if wetlands will be impacted during the redevelopment of a property, we negotiate permits for fill of wetlands, establish mitigation strategies for wetlands impacts, and assist clients with project planning to avoid wetland impacts when possible.
- Endangered Species Evaluation and Permitting. We are experienced in investigating and evaluating the risk and liability (both civil and criminal) posed by the potential presence of endangered and/or threatened species (ETS) under state and federal laws. We also have significant experience with Incidental Take Authorization to allow a project to proceed in the event suitable habitat exists or the presence of ETS on a project site is confirmed.
- Stormwater Management and NPDES Permitting. We routinely assist clients in resolving issues relating to stormwater runoff from construction activities, including potential adverse water quality impacts from uncontrolled discharges of sediment, debris, and chemicals in such runoff. We also address legal issues associated with National Pollutant Discharge Elimination System (NPDES) Permits, which may be required for clearing, grading, and excavating activities that disturb one acre or more of land.