Identifying and Managing Environmental Risks in Commercial Transactions

Almost all corporate and commercial transactions involve environmental compliance considerations or potential environmental liabilities. Environmental due diligence is critical to assessing the viability of the pending deal and the allocation of liabilities between the parties.

The methods and scope of due diligence and its use have been evolving in recent years. Depending on the deal structure and size of the deal, the scope and timing of the due diligence can vary widely. The increasing prevalence of representation and warranty insurance can also affect the nature of the due diligence.

Environmental due diligence in corporate transactions involves the evaluation of the known and potential liabilities and obligations related to the target company’s properties and operations. Counsel for buyers, sellers and lenders must be prepared to address those liabilities and understand the interplay between the limits on due diligence pre or post-closing and the remedies in the deal.

Listen as our authoritative panel examines how the deal structure affects environmental due diligence. The panel will also discuss preparations for due diligence, including determining the method and scope, and what is sufficient for environmental due diligence. The panel will also explore the potential risks discovered and the available protections. The panel will offer best practices for developing strategies to deal with these issues in the transaction approach and business planning.

1. Purpose of environmental due diligence
   1. Common environmental risks
   2. Identify and quantify environmental risks
   3. Determine whether there are pre- or post-closing environmental requirements (e.g., permit transfers, notices related to transfer, CTA/ISRA, disclosure obligations)
2. Conducting environmental due diligence
   1. Types of environmental due diligence
   2. Impact of deal structure (e.g., asset v. stock, merger, bankruptcy sale)
   3. Buyer/seller/lender perspectives
   4. Common mistakes
3. Allocating and mitigating environmental risks
   1. Key contractual concepts and provisions
   2. Contractually allocating environmental risks
   3. Use of federal and state mitigation tools
   4. Environmental insurance
4. Review of recent cases interpreting environmental provisions in contracts

The panel will review these and other key issues:

• What impact will the deal structure have on assessing the environmental risks and liabilities?
• What factors help determine the scope of environmental due diligence sufficient for corporate transactions?
• What are the best practices for evaluating and managing environmental risks in corporate transactions?