5 Tips For Environmental Due Diligence In Business Transactions

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Thompson Coburn LLP
Crystal Kennedy

March 13, 2017

Virtually all business transactions involve some level of environmental risk. The key is to identify all of the potential risks and collect sufficient information about them early in the due diligence period of a transaction. This proactive approach to environmental due diligence will help the buyer determine whether the risks are acceptable in light of the overall transaction and develop a strategy for managing them, both in the contract negotiations prior to acquisition and after the transaction is complete.

How much and to what extent businesses should conduct environmental due diligence typically depends on the nature of the transaction and the anticipated use of the property after purchase.

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Stormwater Runoff from Construction Activities Subject to New EPA 2017 General Permit

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Spencer Fane LLP
Shelby Wood

March 12, 2017

Construction companies, general contractors, developers, and property owners involved in land clearance and disturbance activities will want to take note of the new Stormwater Construction General Permit (“Construction General Permit”) issued by the United States Environmental Protection Agency (“EPA”) and effective on February 16, 2017. See 82 FR 6534 (January 19, 2017). As with earlier Construction General Permits, the 2017 permit applies to land clearance and disturbance activities greater that one acre and requires site operators to comply with best management practices (“BMPs”), effluent limits, and other permit requirements, including developing a Stormwater Pollution Prevention Plan (“SWPPP”).

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Proposed Trump Budget Would Cut U.S. EPA Funding by Approximately 31%

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Jenner & Block LLP
Steven M. Siros

March 16, 2017

On March 15, 2017, President Trump released his FY 2018 budget blueprint titled “America First—A Budget Blueprint to Make American Great Again.” In addition to increasing defense spending by $54 billion, the blueprint proposes a $2.7 billion budget reduction for U.S. EPA. Highlights of U.S. EPA’s proposed $5.7 billion budget include:

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President Trump’s Executive Order Regarding “Waters of the United States” and his Deference to Justice Antonin Scalia: Does it Even Matter?

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Taft Stettinius & Hollister LLP
Kim K. Burke and E. Chase Dressman

March 9, 2017

On Feb. 28, 2017, President Trump issued the executive order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Section 3 of the order provides:

 Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with
 the proposed rule described in section 2(a) of this order, the Administrator and Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

Upon issuance of this executive order, many commentators claimed that it represented a reversal of the aggressive approach taken by the EPA and the Army Corps of Engineers in classifying remote wetlands and ponds as “navigable waters” that would subject them to the jurisdiction of the Clean Water Act. Justice Scalia’s opinion in Rapanos was and is known for its wit and clarity in addressing what the late justice considered a clear overstepping by the EPA and the Corps of their authority to classify virtually any body of water as subject to their permitting and other jurisdiction:

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