Our understanding of bankruptcy’s effect on environmental interests and liabilities gives our clients an edge. At Bingham, we leverage our top-tier environmental and bankruptcy litigation practices to clarify the legal landscape of the murky, high-stakes world of environmental bankruptcy and to pursue positive outcomes for our clients.
What Companies Need
Industry leaders and financial institutions need highly skilled legal counsel with thorough knowledge about the changes occurring at the intersection of environmental and bankruptcy law — a fluid, complex and critical field. We are intimately familiar with this evolving area of law and its impact. Our experience extends to several contexts, from remediation working groups of Fortune 500 companies seeking a fair allocation of cleanup costs, to buyers pursuing valuable assets formerly tied to widespread legacy environmental liabilities, and lenders invested in an industry leader now crippled by toxic tort and contamination claims.
Creditors need counsel who understand and anticipate the effect of bankruptcy on their claims and environmental obligations. The bankruptcy of one potentially responsible party (PRP) is no obstacle to aggressive government enforcement against others under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); the Resource Conservation and Recovery Act (RCRA); the Clean Water Act (CWA); the Clean Air Act (CAA); and other environmental laws and regulations. Debtor settlements with the EPA and states are increasingly common and can significantly impact future government enforcement and site cleanup strategies. Furthermore, bankruptcy court-approved settlements can grant the government broad discretion in choosing how to use bankruptcy recoveries — choices that affect the extent a debtor’s estate offsets other PRPs’ liability and expenses.
What We Do
With a team of pre-eminent environmental and bankruptcy lawyers on the cutting-edge of their fields — including lawyers who focus their practices on the intersection of these fields — we help our clients prepare for and respond to debtors’ attempts to leverage bankruptcy and environmental laws to shed environmental liabilities. We work closely with state and federal agencies to address debtors’ liabilities for cleanup costs in ways that advance the interests of our clients, implement cost-effective remediation strategies and ensure a fair allocation of cleanup costs. We use time-tested strategies to protect the interests of our clients, and find unique and effective ways to guarantee their voices are heard in a bankruptcy case, including the filing of surrogate governmental claims and other strategies that require our clients’ interests to be considered when it comes time to prioritize the distribution of debtors’ assets. Our combined experience helps resolve the most complicated disputes.
We represent leaders in a variety of industries, including energy, oil, agriculture, telecommunications, real estate, and chemical manufacturing and distribution. Our clients are among the top decision-makers in PRP groups formed to negotiate and implement some of the most challenging site cleanups in the U.S. We also represent leading financial institutions, special servicers, and other debt and equity investors.
Complex Questions, Seamless Solutions
Bingham’s integrated team of environmental and financial restructuring lawyers provides seamless solutions to our clients, clarifying the complex legal landscape of environmental bankruptcy.
For Potentially Responsible Parties (PRPs)
When PRPs are faced with a potential enforcement action by the government, we are the go-to firm. We counsel and help protect PRP rights and interests, including identifying other PRPs at the site, forming PRP groups, and serving as common counsel to negotiate consent decrees and PRP contribution and allocation agreements. Our significant experience with the EPA and state environmental enforcement agencies, as well as our representation of PRP groups and other constituents in large, complex environmental bankruptcy cases, make us uniquely qualified to assert and prosecute PRP claims in bankruptcy and to recommend preventative measures that minimize risks in advance of bankruptcy.
For Financial Institutions
We advise pre-petition and post-petition lenders in determining the potential liability of the debtor, reorganized company or lender for environmental remediation, including where a debtor retains possession of or other interests in contaminated property while in bankruptcy, and where the lender acquires or contemplates acquisition of contaminated property through foreclosure. In addition, we help financial institutions, investors, underwriters and other enterprises investigate and obtain appropriate environmental indemnification in mergers and other transactions, assist our clients in enforcing those obligations when necessary, and counsel on measures that may be available to eliminate or minimize loss upon the bankruptcy filing and maximize opportunities.
For Buyers and Other Stakeholders
We help buyers understand and minimize exposure to environmental liabilities associated with contaminated property or other assets acquired in asset purchases or stock acquisitions in or prior to bankruptcy. This can include advice on 363 sales; defending against fraudulent conveyance, preference or other avoidance actions brought in bankruptcy court against the debtor’s pre-bankruptcy transferees; and identifying obligations and protections associated with proposed “brownfield” developments.
We have advised numerous industry leaders in energy and manufacturing, including many PRP groups, in several high-profile Chapter 11 bankruptcies involving significant and complex environmental issues and liabilities, including In re Tronox Inc., In re Chemtura Corporation, In re Motors Liquidation Corporation (formerly General Motors Corporation) and more.
For more information, please contact of counsel Milissa Murray at 202.373.6511. Milissa has more than 20 years of experience in the area of environmental issues in bankruptcy and has written extensively on the topic. Most recently, she advised clients in the General Motors, Chemtura, Tronox, Washington Mutual, Smurfit-Stone and Plastech Chapter 11 cases. Any of our highly experienced lawyers in the practice may also be contacted by clicking on the “Lawyers” link on the left-hand column above.