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Environmental

Hodgson Russ’s Environmental Law Practice Group has significant experience representing a diverse client base in a wide-range of environmental matters. From regulatory compliance, complex litigation, and enforcement defense, to permitting, environmental review, and due diligence in large-scale corporate and real estate transactions, our attorneys focus on their clients’ objectives and adding value to their businesses.

Due Diligence and Transaction Services

Our attorneys provide environmental due diligence and transactional services for a broad range of banking, real estate, corporate, and energy-related matters for local, national, and international clients. As part of these services, our attorneys have assessed a wide variety of environmental compliance and impairment, energy, and health and safety issues. We regularly advise clients as to the risk associated with these issues, and provide strategies to manage the risk in a manner that meets the client’s ultimate goals. Some of the tasks often addressed in this capacity include the following:

  • Providing detailed risk analyses of site and business-related compliance and impairment concerns, including for large, multi-sited domestic and overseas operations;
  • Assessing lender liability issues associated with conditions affecting collateralized assets;
  • Drafting of various types of complex provisions and agreements, including representations and warranties, covenants, indemnifications, escrow arrangements, and many others;
  • Identifying and negotiating risk management and transfer tools that can be used by our clients, including environmental liability transfers and insurance products designed to address risk management in the unique context of a particular transaction;
  • Directing site-remedial obligations in conjunction with the client and other third-party professionals;
  • Advising on compliance with State transfer programs, such as New Jersey’s Industrial Site Recovery Act and Connecticut’s Transfer Act program; and
  • Utilizing State-related programs to obtain tax credits and other liability mitigation opportunities, including use of the New York State Brownfields program.

Regulatory Compliance Counseling and Risk Management

Our attorneys work with clients on a daily basis to assess environmental statutory and regulatory obligations applicable to their business operations, assets, and real property, and do so in a manner that allows them to maintain their competitiveness, while still protecting the public health and environment. Our attorneys have significant experience assisting clients with:

  • Assessing regulatory obligations tied to all types of regulated environmental media, including air emissions, water discharges, bulk chemical and petroleum-based use and storage, and solid and hazardous waste management and disposal requirements;
  • Counseling and advising clients throughout local, State and Federal permitting processes for small to large-scale business operations;
  • Overseeing State and Federal regulatory corrective action and remedial projects, including those undertaken pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and related State analogs, the Resource Conservation and Recovery Act (RCRA) and State analogs, the New York State spills program, and the New York State Brownfield program, to name a few;
  • Negotiating with local, State, and Federal agencies regarding alleged circumstances of non-compliance or legal liability; and
  • Challenging administrative determinations by local, State, and Federal agencies through regulatory and statutory processes, including through formal written submissions and quasi-judicial proceedings held in front of Administrative Law Judges, through to appeals to the courts.

Administrative, Civil, and Criminal Enforcement Defense

Our attorneys have successfully represented both industry and governmental entities in a wide-range of environmental enforcement actions in administrative, civil, and criminal forums. This experience involves allegations related to the release, management of, or reporting obligations associated with petroleum or other hazardous substances, violations of permit conditions and requirements, water and air quality issues, and other alleged violations of statutes or regulations across every Federal and State regulatory program. Our client-focused representation leverages Hodgson Russ’s experience to provide the client with the information necessary to make critical decisions to obtain the best possible outcome. Some circumstances warrant exploring negotiation with the enforcing agencies, while others require marshalling a defense in an administrative or civil forum to drive a successful resolution of the matter. We have the experience upon which our clients rely to obtain the best possible outcome.

In addition, our firm has significant expertise representing individuals and businesses subject to State and Federal criminal environmental investigations and prosecutions through a multi-disciplinary process. As part of this expertise, our attorneys have conducted internal investigations to assess potential legal risk and the need for self-reporting. They have also handled criminal environmental prosecutions from initial contact all the way through trial, managing and directing the entire process and strategy on behalf of the client. The substantial experience our attorneys have garnered at the trial level have made them extremely effective appellate advocates, where they have handled many criminal environmental appeals in State and Federal courts.  

Land Use, Sustainable Development, and Environmental Impact Review

Hodgson Russ has a wide-range of experience representing both public and private clients through the planning, permitting, and environmental review stages for development projects, including large-scale warehouses, residential and commercial buildings, hotels and hospitality centers, entertainment complexes, casinos, utility-scale wind, solar, co-generation and biomass energy projects, shopping centers and student-housing developments, to name a few. Hodgson Russ provides expertise in navigating environmental impact review obligations under the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), Federal, State, and local permitting processes, archeological and historic resource compliance, and coastal zone management review.

Our attorneys also assist clients in obtaining project financing and incentives, including historic and New York State Brownfields tax credits, tax abatement through industrial development agencies, and tax-exempt bond issuances. We have successfully represented clients in State and Federal administrative forums on all phases of project development. Our experience begins at project inception and planning, runs through the acquisition of land control and the permitting processes, and continues to project construction. Our representation in this regard also includes the successful defense of any litigation brought challenging the underlying approvals associated with the projects and post-construction litigation. Our multi-disciplinary land-use team includes experienced litigators who understand how to develop a record at the administrative level to withstand judicial scrutiny of permitting decisions, mitigating client risk.

Our attorneys also assist clients in achieving their sustainable development goals and objectives, including matters related to green buildings, energy efficiency project development and financing, drafting of contracts that address the unique requirements of sustainable structures, and representing clients in contract disputes and other litigation involving green buildings. Additionally, we are experienced in helping companies draft and negotiate business agreements that help reduce each party’s carbon footprint.

Brownfields Redevelopment Projects

Hodgson Russ assists municipalities, financial institutions, and real estate developers in reclaiming contaminated properties for private and public uses. Through our comprehensive knowledge of the New York State Brownfield program and other federal, state, and local tax credit and financial incentive programs, coupled with real world experience in developing and implementing voluntary cleanup programs, we craft solutions to the most complex brownfield redevelopment issues while minimizing environmental risks. Additionally, with our knowledge of the practical realties of owning and maintaining impacted sites, from land use controls imposed as part of remediation efforts to the precise regulatory requirements, we have been able to assist clients in the complicated financing of brownfield projects.

Environmental Litigation

Our attorneys regularly represent clients in a wide-range of environmental litigation matters in front of State and Federal courts across the country. Some of the types of matters that our attorneys have handled include the following:

  • Government recovery and third-party New York State Navigation Law actions associated with the release of petroleum-related products at a site;
  • Toxic tort litigation matters ranging from single party defense to significant State and Federal class-action matters;
  • Sophisticated, multi-party CERCLA litigation matters;
  • State and Federal proceedings brought against administrative agencies for exceeding their statutory authority and rights, including in circumstances with bet-the-company implications;
  • Defending private attorney general and citizen suit litigation brought by local community members against individual business concerns; and
  • Article 78 proceedings in New York State court for all range of administrative decisions, including permitting decisions and compliance with SEQRA

Environmental Insurance Coverage Issues

Environmental insurance coverage issues present complex questions, frequently involving claims and losses stemming from the activities of predecessor companies that ceased years ago.  We provide comprehensive assistance to clients facing these challenges – from making claims on legacy insurance policies or obtaining business-related coverage, to minimizing exposure to environmental liabilities and cleanup-cost overruns.  At Hodgson Russ, we understand our clients’ business needs just as well as we understand the applicable law.  Our understanding allows us to craft unique solutions tailored to an individual client’s needs and circumstances in a timely and cost-efficient manner.  

Hodgson Russ offers insurance coverage counseling to help clients resolve coverage disputes before they turn costly, or better yet, avoid them before they arise.  We work with our clients to select appropriate coverage for specific exposures and potential liabilities.   When they arise, we address claims in the context of available insurance portfolios, then devise a strategy to maximize coverage in as cost effective a manner as possible.  When appropriate, we employ alternative dispute resolution solutions to this end.  Where these options are not available, however, we zealously prosecute and defend coverage litigation in state and federal court and in arbitration.  With our comprehensive litigation experience, Hodgson Russ can readily meet the challenges of complex coverage litigation, and its often extensive discovery requirements, at fair and reasonable costs. 

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