What Can the Lawyer Do to Help?
August 5, 2003 Advisory
These developments directly effect current owners, potential purchasers and lessors, developers, lendinginstitutions, local governmental units or industrial authorities, and other entities interested in improving property or otherwise enhancing its value or reducing exposures arising from its environmental condition. These entities should expect their lawyers to provide them with representation and advice with regard to actual and potential liability, remediation, reuse, financing, sale, lease, donation, and strategic stockpiling of Brownfield properties.
In addition to providing their clients with counsel on assessment of liability, the lawyers for the interested parties should offer representation in the following areas:
• negotiating cleanup obligations commensurate with land use and property value,
• negotiating liability limitations between buyer/seller, lessor/lessee, lender/borrower, and owner-developer/builder-engineer,
• negotiating title acquisition,
• preparing appropriate construction documentation mindful of the environmental issues,
• acquiring liability limitation insurance,
• preparing appropriate land use controls (such as deed restrictions and mandatory maintenance and operation requirements to assure the continuing viability of remedial schemes),
• attending to the special requirements of lending institutions and local authorities, and
• providing advice on funding of Brownfields cleanup and development through creative financing including loans, grants, bonds, and tax increment financing.
At any one or more times during the assessment, remediation, transfer, and development of a Brownfield property, as well as with regard to any transaction involving such a property, an interested party may require legal services in the following areas:
• environmental law,
• real estate,
• project finance,
• construction law,
• government contract law,
• governmental relations,
• commercial or corporate law, and
• international or trans-national law
When searching for an attorney to provide counsel in any such role, the interested party should inquire about the lawyer's specific Brownfields experience. Practical real-life examples in any particular context may give some lawyers an edge over others, e.g., having obtained a release for or covenant not to sue a client from a regulatory agency, having successfully negotiated an indemnity provision in the purchase or lease of a Brownfield property, or having developed a workable financing mechanism for development of such a property.
In conclusion, lawyers can serve a pivotal role in helping to develop the economic potential in Brownfield properties. Parties interested in the remediation, use, and development of these properties should keep in mind how their attorneys can best serve them in this complex and challenging field.