Transactions and Project Development Support

A portion of our environmental practice complements our land use and real estate development practices with heavy emphasis on development and transactional matters advising purchasers, sellers, landlords, tenants, lenders, borrowers and equity investors. The development support portion of our environmental practice includes the following:

• Brownfield (contaminated property) redevelopment within state voluntary remediation programs (including the Virginia Voluntary Remediation Program (VRP) and Maryland Voluntary Cleanup Program (VCP)) and federal and state enforcement programs, including the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and underground storage tank (UST) programs.
• Environmental due diligence including the review of Phase I environmental site assessments under ASTM Standard E1527-13 and E2247-16, Phase II environmental site assessments, environmental compliance audits, wetlands, archeological, and species reports.
• Drafting and negotiation of environmental provisions in purchase and sale agreements, leases and loan documents as well as remediation, indemnity, access and escrow agreements in connection with environmental investigations and remediation.
• Representation in regulatory enforcement including negotiation of consent orders.
• Drafting of environmental covenants, including under state Uniform Environmental Covenants Acts (UECA).
• Advice and assistance in qualifying for the bona fide prospective purchaser (BFPP), contiguous property owner and innocent purchaser defenses, including obtaining comfort letters.
• Review of and advice on environmental insurance policies as a tool in transactions.
• Advice on mold, asbestos containing building materials, lead-based paint (LBP), polychlorinated biphenyls (PCBS), UST and aboveground storage tank (AST) issues.
• Advice on wetlands permitting and wetlands mitigation bank creation and transactions under the Clean Water Act and its state counterparts including advising on permit applications and obtaining permits. A large part of our wetlands practice also includes handling the related NEPA, endangered species and historic and cultural resource issues that often arise during wetlands permitting.
• Assisting clients in complying with stormwater management regulations, including permitting, defending enforcement actions and drafting and negotiating stormwater management facility long term maintenance agreements.
• Advice on transfer acts such as the Connecticut Transfer Act and New Jersey Industrial Site Recovery Act.
• Permit and approval transfers and notifications in sales of facilities or corporate entities.

Energy and Climate Change

Our lawyers have decades of experience in representing clients on the development and permitting of energy projects. Over the years we have evolved with the industry and our recent development projects have focused primarily on renewable energy projects and the related permitting and regulatory issues while our fossil fuel practice has involved advice on the decommissioning and closure of coal and gas fired generation facilities. The energy and climate change portion of our environmental practice includes the following:

• Permitting and due diligence of wind and solar generation and battery storage projects nationwide, including Virginia’s small renewable energy project permit by rule; offshore wind energy permitting and transmission, Federal Aviation Administration determinations of no hazard to air navigation (DNHs); hydrogen fueling stations, wetlands, historic and cultural resources and endangered species.
• Drafting and negotiating solar lease agreements.
• Environmental Attributes-we have advised clients on the creation, purchase and sale of Renewable Energy Credits (RECs), Renewable Identification Numbers under the federal Renewable Fuel Standard (RINs), carbon credits under voluntary and mandatory trading programs, low carbon fuel standard credits (LCFS) under the California Air Resource Board program and responsibly sourced gas under various voluntary standards.
• Linear Energy Infrastructure—Our attorneys have advised natural gas pipeline companies and electric utilities on permitting issues related to the construction of natural gas pipeline and electric transmission projects. This work has included obtaining the various federal, state and local permits necessary for the construction of linear infrastructure projects, including compliance with NEPA, wetlands, federal and state endangered species, migratory birds and historic and cultural resource regulations, as well as obtaining certain construction and land use permits and approvals that can be required if linear projects will be located on federal or state lands, such as National Parks, National and State Forests, State Parks and National Wildlife Refuges.

Environmental Regulatory

In addition to environmental issues that arise in the transactional and energy and non-energy project development, our environmental practice includes advice on regulatory compliance and permitting and enforcement matters. Our attorneys have advised clients on federal, state and local enforcement of environmental laws and regulations related to air, water and waste issues, including negotiating of orders, consent decrees and natural resource damages settlements, and water supply and wastewater permitting and agreements. We have also provided advice on the applicability of and how to comply with environmental laws and regulations, including federal and state audit privileges. We also have experience in the area of environmental justice and its increasing impact on project siting and permitting decisions.

Recent representative projects include:

• Representing numerous developers of sites with past industrial uses being redeveloped using the Virginia VRP for residential, commercial, office and academic uses.
• Representing multiple owners of sites in Virginia VRP and Maryland VCP with past dry-cleaning solvent releases, including with offsite migration of contaminant plumes.
• Use of Virginia UECA in management of long-term monitoring and operation and maintenance activities of an offsite contaminant plume.
• Advice on environmental and permitting aspects of the acquisition and development of renewable energy projects, including an 1100 MW offshore wind facility regulated by the Bureau of Ocean Energy Management (BOEM), thousands of megawatts of utility scale solar and terrestrial wind projects located nationwide and battery storage projects.
• Advice and assistance on environmental issues in divestitures of many former industrial and manufacturing facilities.
• Obtaining BFPP and contiguous property comfort letters in several acquisitions.
• Advising national automobile manufacturer on the creation, marketing and sale of low carbon fuel standard credits.
• Assisting landfill gas developer and agricultural developers in the permitting of biogas development projects and the creation and sale of the environmental attributes created by biogas projects.
• Obtaining federal and state wetland permits for a regional distribution center for a large grocery chain, including advice on Environmental Justice issues raised by project opponents.
• Negotiating consent orders and resolving Notices of Violations issued by the Virginia Department of Environmental Quality for violations of stormwater permits and subsequent impacts to streams and wetlands.

Environmental Due Diligence Files

For analysis and updates regarding environmental due diligence and regulatory matters please visit John Lain’s and Jim Thornhill’s blog: Environmental Due Diligence Files.