Cost Recovery and Contribution for Contaminated Sites

Paladin Law Group’s expertise cuts across a wide range of environmental laws and regulations including CERCLA, RCRA, the Clean Water Act, the Gatto Act, as well as similar federal, state and local laws. Representing clients in the public and private sectors, the firm litigates government enforcement actions as well as private party contribution, cost recovery, and indemnity actions. We have successfully negotiated a myriad of settlements with regulatory agencies and other parties to bring closure to contaminated sites or to provide funding for the investigation and cleanup of contaminated sites.

CEQA and Land Use Litigation

Paladin Law Group’s CEQA and land use attorneys have litigated cases on both sides of proposed developments and on matters involving the full spectrum of CEQA approvals, including program and project EIRs, negative declarations, supplemental and subsequent EIRs, and statutory and categorical exemptions.

Greenwashing Claims

As an advisor on green claims, Paladin Law Group is well-versed Federal Trade Commission guidelines and has assisted clients in prosecuting “greenwashing” claims against our clients’ competitors. Likewise, the sudden prevalence of environmental, social, and governance (ESG) investment funds has also resulted in claims that companies have been insincere or misleading in touting their ESG accomplishments.

Environmental Criminal Defense

Our team of attorneys, consisting of both criminal defense and environmental counsel, have successfully counseled and defended clients subject to criminal probes by the U.S. Environmental Protection Agency’s Criminal Investigations Division, the U.S. Attorney’s Office, District Attorneys, as well as state criminal investigations and federal-state cooperative investigations.

Real Estate Acquisitions

Paladin Law Group’s environmental lawyers negotiate and document real property acquisitions and assist clients in conducting due diligence investigations relating to environmental issues potentially associated with the purchase, sale, or lease of real property.

Green Leases, Green Building, and Green Construction

Although Paladin prefers the term Sustainable Building, the experience of its professionals in Green Building and LEED Certification precedes the more recent popularity of green construction. In addition, Paladin helps commercial tenants and landlords in drafting green leases to meet the ever-increasing demand for rental space with environmental features. Paladin’s experience in green building design and green building construction are invaluable in negotiating green leases which is a developing area.

Corporate Mergers and Acquisitions

Paladin Law Group counsels companies on environmental issues associated with corporate mergers and acquisitions. For example, the firm conducts due diligence review of historical operations that may become environmental liabilities. In addition, we analyze insurance coverage of the company as well as new insurance policies that may be available to respond to potential environmental liabilities.

Environmental Regulatory Compliance

Paladin Law Group plays a significant role in our clients’ efforts to achieve and maintain environmental compliance. This role includes permitting for air, water, underground storage tanks, and solid waste as well as development and implementation of audit programs and environmental management systems, strategic planning for the implementation of new regulations, and administrative or legislative lobbying on environmental issues that impact our clients. We have been at the forefront of California’s Green Chemistry Initiative. Regulatory compliance under RCRA, TSCA, FIFRA, and OSHA are commonplace in our practice. Paladin has also responded to environmental enforcement actions and succeeded in minimizing civil penalties sought in enforcement orders.

Paladin Law Group’s attorneys are heavily involved in Brownfields redevelopment projects. A Brownfields site is defined as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant.” These projects typically involve complex, multi-dimensional negotiations with property sellers on real estate and risk allocation issues, government agencies, insurers, prospective purchasers or tenants, and with zoning authorities. Paladin Law Group assists clients in reducing the ultimate costs associated with the redevelopment of these contaminated sites. The firm has counseled developers, investors, redevelopment agencies, and other public entities interested in redeveloping contaminated sites.

When appropriate, Paladin uses its experience in environmental, social, and governance (ESG) to maximize GRESB scoring for Brownfields redevelopment projects.

Paladin has also represented clients in environmental litigation and insurance litigation matters associated with Brownfield redevelopment sites.

California has lead the nation and world towards the economic benefits of implementing a global warming emissions cap. The effects of global warming on California could be disastrous (e.g., loss of the Sierra snowpack and rising sea levels). As the tenth largest emitter of carbon dioxide pollution in the world, California has chosen to lead the charge by committing to reduce its global warming emissions to 2000 levels by 2010 (11% below business as usual), to 1990 levels by 2020 (25% below business as usual), and 80% below 1990 levels by 2050.

Environmental, social, and governance (ESG) is becoming part of corporate culture and Paladin’s sustainability lawyers have kept close tabs on climate change laws and regulations. We understand that reducing emissions from the tailpipe alone will not be sufficient to accomplish the goals of climate change laws. GHG emission reductions will also have to be achieved through measures designed to reduce energy consumption and to transition to alternative fuel sources – such as solar, wind, and biodiesel. These changes from business as usual will create opportunities, jobs, and innovation.

To begin with, businesses will likely have to determine their current carbon footprint. Climate change regulations will be put in place to monitor, verify, and report all direct and indirect greenhouse gas emissions. Cities and counties that are taking this seriously are already implementing strategies to consider sustainability issues in land use and redevelopment decisions to focus on in-fill and transportation oriented projects. Indeed, sustainability has quickly become a part of the CEQA environmental review process and sustainability is built into general plan law. Thus, mitigation measures may need to be considered to offset increased greenhouse gas emissions caused by proposed development plans.

Paladin’s work in green building includes green building design, green building construction, as well as green leases.

Generally, green building is the practice of increasing the efficiency of buildings and their use of natural resources such as water, wind, solar, use of grey water, green roofs, and building materials and systems with the end goal of reducing the overall impact of buildings on the environment and human health.

Furthermore, this push to become more efficient – i.e., more sustainable – in the use of energy by buildings drives innovation and the economy. Green building brings with it a significant boost in economic and social benefits such as reduced operating costs, improved occupant productivity, comfort, and health, as well as the opportunity to create, expand, and shape markets for green products and services.

Real estate value may also increase due to the boost in aesthetic quality. Finally, green building contributes to a vast improvement in overall quality of life. Further, projects that earn certification from the U.S. Green Building Council demonstrating that they have met Leadership in Energy and Environmental Design (“LEED”) standards enjoy government incentives, marketing benefits and increased property value.

Green Building Law Featured at Bench & Bar Conference

Climate Change and the Law was the theme of the Santa Barbara Bench & Bar Conference and Bret Stone delivered with a discussion of Green Building Law, LEED Certification, and CALGreen using the construction of his shipping container home, featured in Dwell, as a model. Building material conservation and resource efficiency was achieved by replacing wood framing with repurposed shipping containers and poured-in-place concrete walls. Energy efficiency features include a south-facing orientation to maximize passive solar design, rooftop solar panels, and battery storage for energy self-supply. Water efficiency attributes include drought tolerant native landscaping, grey water, storm water retention.

Many plots of land lie undeveloped or underutilized in industrial, residential, and commercial areas of cities. Because some of these properties were previously used for industrial purposes but now lie vacant, these areas are called Brownfields. Redeveloping abandoned industrial and commercial in-fill properties can be complicated by environmental contamination. Paladin Law Group’s attorneys have helped their clients redevelop these properties, revitalizing downtown areas and furthering the concepts of smart growth.

Long-Tail Liabilities Covered by Historic Insurance Assets

Historical insurance assets play an important role in property transactions, mergers and acquisitions, and long tail liability exposures, such as environmental, asbestos, and product liability claims. Environmental liabilities and product liabilities that may be unknown to the seller may emerge years and even decades later after the damage occurs. Under environmental statutes like CERCLA, a broad range of parties can be held jointly and severally liable for extraordinarlily expenseive environmental cleanup, often for pollution that occurred decades ago. Under the standards of strict liability, a plaintiff need not prove that a manufacturer was negligent or at “fault,” but only that a product was defectively designed or manufactured or that the manufacturer did not warn against foreseeable dangers. Paladin assists clients in taking proactive steps towards identifying and understanding their historical insurance programs in order to protect against these long tail liabilities.

Remediation Cost Cap Insurance Policies

The firm works with clients to procure new insurance, such as environmental cost-cap policies, risk transfers, and pollution legal liability policies. Thes types of insurance are sometimes essential in negotiating real estate or corporate transactions.

Policy Buy Backs and Site Releases

Paladin Law Group assists clients in negotiating with insurance companies agreements that permit the insurer to “buy back” its policy in exchange for a financial commitment of a sum certain. These agreements can also be negotiated to release the insurer’s obligation to one particular site or to a particular part of coverage (e.g., release property damage but not bodily injury).

Corporate Transactions

Any corporation moving toward merger with or purchase of another company must recognize the litigious climate in which business is transacted — and defend itself, in advance, by making sure that insurance coverage is adequate. Therefore, companies that want to grow successfully by acquistion had better be comprehensively insured — not only against events and liabilities that may arise out of the current operations of target companies, but against events that occurred long ago. Paladin Law Group counsels companies on insurance coverage issues associated with potential liabilities of companies involved in corporate mergers and acquisitions and, as part of the due diligence process, performs comprehensive audits of the company’s historical insurance program to determine whether potential liabilities may be covered.

Companies facing liability for pollution, asbestos exposure, or products liability that occurred decades ago have learned that standard comprehensive general liablity (“CGL”) insurance policies are “occurrence-based” — that is, they never expire if damage is shown to have occurred within the policy period. A rule of thumb is that the older a policy is, the less restrictive and more valuable it is likely to be. CGL policies from the 1940s, 1950s, and 1960s are particularly valuable because they generally contain no pollution exclusions, no aggregate limits, and no limits to defense costs. Policies from the 1970s, which contain a so-called “sudden and accidental” pollution exclusion, are easier to apply to environmental liabilities than policies purchased after 1985, which contain a less ambiguous “absolute pollution exclusion.”

Of course, the older a policy is, the less likely it is that policy documentation will be neatly tucked away in a well-marked and easily accessed file cabinet. Corporate downsizing, mergers and acquisitions, and the relocation of corporate headquarters displaces people and records and, thus, shortens institutional memory. With increasing frequency, insurance archaeologists are dispatched to track down long lost policy documents of long-forgotten predecessor companies held liable — for manufacturing and disposal partices not understood at the time to be harmful.

Employing the combined skills of a detective, a historian, a claims specialist, and a lawyer, Paladin Law Group’s team learned to cull through brokers’ slips, chase down retirees and descendants of former personnel, pore over accounting ledgers, search government achives, and venture into dark vaults in search of old insurance policies. Like a traditional archaeologist, the insurance archaeologist gathers a host of evidence — much of it easily passsed over by the untrained eye — and painstakingly assembles it to reconstruct a past reality.

Paladin’s attorneys have identified more than a billion dollars of historical insurance assets using our stock-in-trade skills and methods. We have helped large corporate cients, small family-owned companies, and municipalities in bringing to bear these old insurance policies to pay for costs associated with the investigation, cleanup, and defense of claims and suits.

We represent policyholders in tendering claims, corporate claims management, negotiating defense and coverage terms, and litigating against insurance companies who have breached their duties to their insurers and acted in bad faith. Paladin Law Group has successfully resolved insurance coverage disputes and has recovered multiple millions of dollars for policyholders in matters involving pollution and asbestos. The firm has represented Fortune 1000 companies, municipalities, small businesses, and other individuals on coverage matter including those involving multiple domestic and international sites. Likewise, our clients have spanned industries that include manufacturing, metal finishing, hazardous waste recycling, dry cleaning, printing and many others. We have represented policyholders in negotiations with and in litigation against most major domestic and international insurers. Paladin Law Group remains on the cutting edge of coverage issues helping policyholders maximize insurance recovery for claims.

Although Paladin prefers the term Sustainable Building, the experience of its professionals in Green Building and LEED Certification precedes the more recent popularity of green construction. In addition, Paladin helps commercial tenants and landlords in drafting green leases to meet the ever-increasing demand for rental space with environmental features. Paladin’s experience in green building design and green building construction are invaluable in negotiating green leases which is a developing area. Paladin also advises clients on redevelopment funding opportunities under The Texas Property Assessed Clean Energy (TX-PACE) program, which enables owners of eligible commercial, industrial, nonprofit, agricultural, and multifamily properties to retrofit their facilities with more efficient technologies that will reduce energy and/or water usage.

Paladin’s lawyers are experienced in CEQA and NEPA compliance and enforcement. We have represented developers and public agencies on issues including climate change, endangered species and habitat, and wetlands.

Paladin Law Group has represented property owners in eminent domain actions to ensure that they received the maximum compensation for their property as required by law. In situations involving commercial or industrial properties, we assist property owners in responding to government agencies seeking to discount the fair market value of the property due to contamination.

Paladin Law Group assists clients in redeveloping abandoned industrial and commercial in-fill properties, which often include contaminated sites. Frequently, our combined experience with land use planning laws and environmental laws facilitates this process.

Paladin Law Group’s lawyers negotiate and document real property acquisitions and assist clients in conducting due diligence investigations.