Lost Insurance Policy? Pursuing Coverage for Long-Tail Environmental Liability Still Feasible

Beveridge & Diamond P.C.
John H. Kazanjian, Nicole B. Weinstein

April 20, 2017

Companies facing environmental cleanup liability typically confront claims that are brought multiple decades after the alleged polluting activity took place. This passage of time often results in the loss or disappearance of crucial historic documents, including insurance policies, necessary to respond to the claims.  Historic general liability insurance policies issued before pollution exclusions became commonplace in the 1970s are of particular value in protecting a company from exposure to “long-tail” environmental liability.  Finding these policies, or evidence of their existence, therefore is a must.  A recent New Jersey federal court decision serves as a helpful reminder that when the actual policies cannot be located, even limited documentary evidence of their existence, when buttressed by the expert testimony of a credentialed insurance archaeologist, may be sufficient to prove the coverage and facilitate recovery.

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Brownfields Reauthorization: U.S. House of Representatives Committee on Energy and Commerce (Subcommittee on Environment) Hearing Addresses Draft Legislation

Mitchell Williams Selig Gates & Woodyard PLLC
Walter Wright

April 7, 2017

The Subcommittee on Environment of the United States House of Representatives Committee on Energy and Commerce (“Subcommittee”) held a hearing on April 4th titled:

“Discussion Draft: Brownfields Reauthorization” (“Hearing”)

The focus of the hearing was the development of legislation reauthorizing the United States Environmental Protection Agency (“EPA”) Brownfield Program.

An additional objective was stated to be statutory improvements to the Brownfield’s aspect of the Comprehensive Environmental Response Compensation Liability Act (“CERCLA”).

EPA and most states (including Arkansas) have governmental programs addressing properties whose marketability has been impaired because of perceived or real environmental contamination issues. The interest in initiating reuse of idle properties is not limited to commercial development or industrial manufacturing facilities. For example, the impediments to the purpose and reactivation of abandoned mining or retail motor fuel properties might involve similar issues.

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Pulling the Plug on The Clean Power Plan

Bryan Cave LLP
Thomas S. Lee

April 10, 2017

On March 28th President Trump signed the Executive Order on Promoting Energy Independence and Economic Growth (the “Executive Order”) signaling a sea change in the way that the executive branch will regulate industries and emissions that contribute to climate change. The practical outcome of the Executive Order will be determined over the next few years, but what is immediately clear is the administration’s policy statement that the Federal Government’s new priority is “avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” (Section 1(a)).

The Executive Order covers several topics, but the following are the key takeaways for stakeholders in the energy industry:

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Regulatory Reform: Be Careful What You Wish For

Venable LLP
Fred R. Wagner

This article was originally posted in the Venable’s EnviroStructure Blog

April 12, 2017

A constant refrain from clients over the years, in both the public and private sectors, is that certainty may be the most valuable characteristic of any regulatory program. The “Waters of the United States” controversy perfectly illustrates this perspective. One could argue whether the Army Corps of Engineers’ reach over jurisdictional waters governed by Section 404 of the Clean Water Act has expanded or contracted over the years. But there can be no dispute, thanks to a series of confusing Supreme Court decisions and regulatory inertia, that a property owner still doesn’t know precisely whether all or part of her land qualifies as “waters of the U.S.” This reality leads to the legitimate complaint from the regulated community that its cost of proposed development rises dramatically because of regulatory uncertainty.

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