FOOD & AGRICULTURE QUARTERLY | SEPTEMBER 2026 contamination they did not cause. Federal and state environmental laws may, in certain circumstances, impose liability on current property owners regardless of when contamination occurred. Conducting appropriate environmental due diligence before acquisition can help purchasers identify potential issues early and may preserve important liability protections available under federal law.
Environmental counsel can help purchasers evaluate identified conditions and allocate risk through representations and warranties, seller disclosures, indemnification provisions, escrow arrangements, or rights to conduct additional investigation before closing. For agricultural buyers, that means evaluating both the condition of the property and the environmental obligations associated with the business being acquired. In many cases, addressing an environmental issue before closing is significantly less costly than attempting to resolve it after the transaction is complete.
Environmental counsel can also help coordinate the consultant’ s scope with the transaction timeline. Depending on the property and the issues identified, that may include targeted sampling, review of historical waste-management practices, confirmation of permit-transfer requirements, or investigation of specific areas identified during the Phase I assessment. The goal is to obtain enough information to make a business decision before closing— not necessarily to conduct every conceivable environmental investigation.
ENVIRONMENTAL DUE DILIGENCE CHECKLIST
Before purchasing or expanding an agricultural operation, consider:
• Review historical uses and environmental reports.
• Identify chemical-storage areas, aboveground and underground storage tanks, and disposal areas.
• Review manure, wastewater, mortality, and nutrient-management systems.
• Review permits and their transfer requirements, notices of violation, enforcement actions, and consent orders.
• Evaluate wetlands, drainage, and other permitting constraints.
• Determine whether additional soil and groundwater sampling is warranted.
• Address known environmental risks in the purchase agreement.
Conclusion
Agricultural operations are substantial, long-term investments. Environmental conditions associated with decades of agricultural operations can present significant legal and financial consequences if they go unidentified. By engaging environmental counsel early, purchasers can identify potential liabilities, evaluate operational impacts, negotiate appropriate contractual protections, and make informed decisions about whether— and on what terms— to proceed.
That risk-allocation exercise is particularly important where the purchaser knows of an existing environmental condition but does not yet know its full cost to review and remediate. A purchase agreement can address who performs additional investigation, who pays for cleanup, and what happens if conditions are materially different from the parties’ expectations.
Ultimately, environmental due diligence is not about finding reasons to walk away from a deal. Rather, it ensures a new owner understands all environmental risk before it becomes an unexpected liability. For agricultural cooperatives, livestock producers, and other agribusinesses making substantial investments in facilities or farmland, that knowledge can be just as valuable as the property itself.
Kevin is an associate in the Litigation Department and builds on his experience as an assistant attorney general in the Environmental Enforcement Section of the Ohio Attorney General’ s Office. He can be reached at 614.227.2144 or kporter @ porterwright. com.
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