Brownfield and Site Development
Between the scarcity and cost of quality property and the regulatory demand for remediating and revitalizing contaminated or old industrial/commercial properties, brownfield and new site development continues to rise. Developers and businesses that expand or relocate face a host of unique challenges, including environmental regulations, insurance, zoning, financing, and working with multiple agencies exercising authority over the target property. The potential financial consequences of environmental liability and the impact on the resale value of the property weigh heavily on important business decisions to expand, relocate, buy, or redevelop property. Seeing all of these obstacles collectively, and boxing the risks associated with development or purchase, requires a skill set rarely found in one lawyer or law firm.
Taft’s Brownfield & Site Development practice possesses that skill set and brings to fruition the aspirations and business goals of clients. We employ outside the box thinking, clever financing packages, common sense, and limited remediation (including creative barriers such as parking lots) when necessary. We help measure risk, develop solutions, and match them to a client’s risk tolerance, so that the client – not the lawyer – determines how much risk is tolerable. Virtually all urban land has contamination in some corner of the property that exceeds an obtuse regulatory threshold, often set by scientists based on overly conservative calculations of how much soil is eaten by children when playing outside. Common sense is not subservient to these scientific calculations, and Taft’s Brownfield practitioners apply prudence when devising solutions to make property usable for the client’s purposes.
We assist individuals, businesses, real estate developers, contractors, municipalities, redevelopment commissions, and financial institutions in the acquisition, disposition, and redevelopment of brownfield sites.
Our attorneys provide clients with a comprehensive set of services, including:
- Identifying federal, state and local grants and loans, tax credits, urban renewal programs, and enterprise zone and empowerment programs.
- Assisting with tax increment-financed redevelopment.
- Interacting with federal, state, and local environmental agencies.
- Cooperating with redevelopment groups and nongovernmental organizations.
- Creating business entities.
- Identifying end-users and locating development partners.
- Addressing zoning issues.
- Measuring risk and common sense solutions to reduce it.
- Providing cost recovery and litigation services.
The Bona Fide Prospective Purchaser Defense
The Bona Fide Prospective Purchaser (BFPP) defense is a statutory exemption to liability under the amended Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). CERCLA was enacted in response to the environmental and health risks created by pollution at abandoned properties, and has been expanded to impose liability for acquired contaminated sites. The broad nature of this liability statute creates a significant barrier to the purchase, sale, and renewal of brownfield sites, so the BFPP defense creates a statutory exemption for eligible projects.
Among many strategies, our attorneys have extensive experience utilizing and establishing a BFPP defense. This strategy helps our clients mitigate the risks, and maximize the outcomes of acquiring, disposing of, and redeveloping brownfield sites.
Sources of environmental liability vary, but the primary causes are federal and state environmental statutes and regulations. Environmental liability risk can be addressed, in part, through insurance. However, the recovery of insurance to offset the cost of environmental liability can be extremely complex, the underwriting market for new insurance policies changes regularly, and the insured confronts many hurdles to coverage.
Our attorneys have extensive experience utilizing insurance as a tool to assist clients in the acquisition, disposition and redevelopment of brownfield sites. Our team helps clients analyze and adjust their insurance and risk management programs to determine which policies can be used, or should be considered for purchase, to respond to potential environmental liabilities.