So, what are the implications of the background principles of law discussed in earlier blogs, and what principles overall should govern how your environmental lawyer makes herself really useful to you in the process?
Three Overarching Tasks and Principles or considerations for both Buyer and Seller that emerge from this:
1. Insure your attorney identifies the Major Federal and State Statutes or Common Law Principles that provide attorneys with weapons for or defenses to environmental claims in private disputes, i.e., as between B and S (and past owners), and in government claims (establish defenses against the government, and sometimes obtain financial or similar benefits – e.g., New York’s Brownfield Cleanup Act). This involves both background principles, discussed earlier, and specific environmental statutes, to be discussed later.
2. Draft Appropriate Contract Provisions to maximize bargaining power, including purchase price, and litigation position, whether you represent B or S, but especially B; process aided by due diligence if it is done early enough, viz., parties can use better knowledge of property conditions to better allocate liabilities in the CS
3. Establish Your Property Baseline Condition: you need to know this well, in order to “draw a white line” around facility to show conditions pre-closing, thus to
a. insure fairer price for property;
b. satisfy lenders that they’ll get repaid;
c. draft a better CS – i.e., one designed to minimize problems afterwards, to preserve claims against S (or, if you represent S, to protect the client against baseless claims by B) and;
d. establish statutory exemptions – see 3, below – against government (bona fide prospective purchaser, contiguous property owner); for operating facilities, need to establish compliance record and conditions.