Commercial Investment Real Estate May/June 2017 | Page 41
intent to regulate carbon emissions comprehensively, no
federal common law claims, such as public nuisance, would
be allowed.
The Federal Clean Air Act, however, preserves common
law actions brought under state law. Since the Supreme
Court’s decision, several lower federal courts have ruled
that the federal statute does not bar state public nuisance
claims. As a result, injured parties can bring state nuisance
actions seeking to recover the losses they suffer from air
pollution emissions from power plants, refi neries, or whis-
key distilleries.
Just as common law claims provide forms of relief
beyond those found under federal statutes, state environ-
mental statutes also may provide a wider range of relief.
Risky Safety Net
During the past 30 years of practice, many changes have
occurred to environmental insurance products cover-
ing the costs of soil and groundwater contamination.
For years, environmental insurance polices excluded the
greatest risks.
While at least one major carrier has retreated from the
environmental insurance market, the market seems pretty
robust now. With suffi cient site characterization, insurance
coverage is available without the types of exclusions that,
essentially, gut the policy. With the surges and retreats in
the market, however, it is diffi cult to predict a continuing
robust environmental insurance market.
Criminal Liability
The past year was one of mixed signals for prosecuting
corporate offi cers individually for criminal violations of
environmental law. The U.S. Department of Justice con-
tinued to stress the need for corporations facing criminal
liability to identify culpable individuals in exchange for
leniency from corporate criminal punishment.
Courts continue to abide by several doctrines to facilitate
criminal prosecutions of corporate offi cers based on their
position and imputed knowledge of those they supervise.
The primary doctrines used are respondeat superior, which
holds an employer legally responsible for the wrongful act
of an employee, if such acts occur on the job; responsible
corporate offi cer; and corporate collective knowledge. Yet in
2016, federal criminal enforcement of environmental laws
was at an all-time low.
Post-Bankruptcy
Under Section 363 of the U.S. Bankruptcy Code, the pur-
chaser acquires the asset unencumbered by its associated
liabilities — including its environmental liabilities. That
can be a meaningful form of environmental liability relief
when buying a facility that, for decades, sent its hazardous
waste for off-site management.
CCIM.COM
oid
The purchaser will acquire the facility but will avoid
ff-site waste
taking the liability for all that facility’s past off-site
tal condition
management. What about the environmental
of the acquired facility itself ? That is, what about soil and
h the
th
groundwater contamination on the property on which
facility is located?
ity for r the
For these purchasers to avoid federal liability
rty
environmental contamination on the acquired property,
they have to qualify for the bona fi de prospective purchaser
defense to hazardous substance release liability. Qualifying
for that defense requires preparation of an environmental
assessment before the acquisition and exercising appropriate
care after the purchase. The Bankruptcy Code protection
will not exonerate the purchaser for the on-site environ-
mental liability.
Transparency Trend
It will be interesting to see how — and how soon — the
Trump Administration effects public companies’ climate
change and conflict mineral disclosures. The Obama
Administration pursued its policy objectives by pressing
for public company disclosure on both fronts.
Confl ict minerals disclosure — reports on companies’
supply chain diligence to ensure the tantalum, tin, tung-
sten, and gold they use doesn’t originate from smelters in
the Congo — seems likely to endure. For one thing, con-
fl ict minerals disclosures are rooted in statute — the Dodd
Frank fi nancial reform legislation.
The Trump Administration can roll back Dodd Frank,
but at least it’s statutorily grounded. Leading consumer
electronics companies, however, have embraced efforts to
keep confl ict minerals out of their products. Of course,
many public companies also have embraced a transparent
approach to disclosure of the physical effects climate change
on their businesses.
The Securities Exchange Commission’s 2010 guidance
on climate change is, however, its new interpretation of
broad, decades-old statutory disclosure edicts. The Trump
Administration may not want to devote its energies to re-
writing the SEC’s 2010 guidance.
The guidance’s fairly loose descriptions of what compa-
nies should disclose about how severe weather might affect
them or the costs of complying with foreseeable new laws,
allows subject companies a fair amount of latitude. With
that latitude, many companies still report that it is simply
impossible to predict long-term effects.
Proponents of disclosure decry the throwing-up-their-
hands approach. Yet, it is hard to imagine disclosures get-
ting any more stringent during the next four years.
Tom Mounteer is a partner at Paul Hastings in Washington,
D.C., and an instructor at George Washington University Law
School. Contact him at [email protected].
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