For more information on Sullivan & Cromwell’s environmental practice, please contact Mark F. Rosenberg (litigation matters) or Matthew J. Brennan (transactional matters).
Sullivan & Cromwell provides expertise in virtually every aspect of environmental law. Some of the most sophisticated and demanding companies in the world, including those in the environmentally sensitive manufacturing, chemicals, petroleum and mining sectors, entrust environmental work to the Firm. The Firm’s environmental work is handled by an interdisciplinary team of lawyers who combine environmental law expertise with extensive corporate and litigation capabilities. We have deep experience:
- Providing environmental advice in commercial transactions, including risk analysis, negotiations and the development of protective transaction structures and efficient indemnity and cost sharing arrangements.
- Advising clients on ways to minimize environmental risks, including advice concerning environmental law requirements; structuring transactions and relationships with corporate affiliates to avoid alter ego and successor liability; preparing environmental policy statements and compliance programs; and obtaining reimbursement for losses under applicable indemnities and insurance policies.
- Handling a broad array of environmental statutory and toxic tort litigation involving CERCLA (Superfund), RCRA, Clean Water Act and other environmental laws, as well as complex contribution, indemnity and insurance issues relating thereto.
- Conducting negotiations with regulatory authorities to resolve environmental issues.
Sullivan & Cromwell’s Environmental Practice Group is consistently recognized by leading industry publications, including Chambers USA, which for the tenth consecutive year recognized S&C as one of the leading environmental firms in the United States. Additionally, both Mark Rosenberg and Matthew Brennan are regularly named as leading lawyers in the field. In 2011, Chambers USA highlighted Mr. Rosenberg as a “talented litigator, who earns praise for his creative negotiation skills,” and underscored Mr. Brennan’s “broad experience [with] commercial transactions” with feedback from “impressed sources” who called him “a pleasure to deal with.”
Clients S&C has represented in environmental law matters include, among others, Adelphia Communications, Andalex, Angiotech Pharmaceuticals, BHP Billiton, BP, Bucyrus, the Canadian Government, Chrysler, CSR, Dubai Ports, Dynegy, E.ON, First Manhattan Co., Goldman Sachs, Health Care Property Investors, Hess Corporation, Inco, Mack Trucks, Macquarie Securities, Mitsui & Co. (U.S.A.), NBTY, Philips Electronics North America, Rhône Capital, R.R. Donnelley & Sons, Sempra Energy, Suez, Tenaris, Thomson, Total and UIL Holdings Corp.
Environmental Practice Highlights
Among others, recent significant environmental transactional matters include representing:
- Dynegy (U.S.), first in a proposed sale (later withdrawn) to an affiliate of The Blackstone Group L.P. (U.S.) and subsequently to Icahn Enterprises L.P. (U.S.) (later withdrawn) in a tender offer followed by a merger for $5.50 per share in cash, or approximately $665 million in the aggregate including the assumption of $3.95 billion in existing debt subject to a “go shop” provision allowing for the submission of superior proposals. This was one of the largest announced energy deals of 2010 and involved the negotiation of complex environmental concerns, including environmental liability covenants and emission allowances for an environmentally sensitive business owning gas, coal and oil fired generation facilities.
- E.ON AG (Germany) in the $7.625 billion sale of its U.S. power and gas business to PPL Corporation (U.S.) involving a number of significant environmental contract issues, including Clean Air Act compliance and future regulatory risks regarding coal-fired utilities, ash impoundments and historical environmental impacts, and legacy manufactured gas plant liabilities.
- NBTY, Inc. (U.S.) in its $3.8 billion acquisition by The Carlyle Group (U.S.), which included the management of environmental liabilities in negotiations and post-signing environmental regulatory compliance with the newly-amended New Jersey Industrial Site Recovery Act governing the investigation and remediation of manufacturing facilities in that state.
- Rhône Capital III L.P. (U.S.) in the sale of a 75% equity interest in Arizona Chem Sweden Holdings AB (U.S.) to an affiliate of American Securities LLC (U.S.) and, as an alternative, the earlier filing of an initial public offering registration for Arizona’s shares, which did not proceed. These transactions involved the analysis of environmental risks associated with the manufacture of chemicals from sustainable forestry resources, including risks associated with future greenhouse gas regulation and sustainable fuel mandates in the EU, the negotiation of environmental terms and pass through indemnities to the purchaser and the drafting of an environmental securities disclosure for the public offering documents. Earlier, S&C represented Rhône Capital in the original acquisition of Arizona Chemical Company from International Paper Company and has since provided environmental advice in the interim to both Rhône and Arizona Chemical on various matters.
- R.R. Donnelley & Sons Company (U.S.) in its $481 million acquisition of Bowne & Co., Inc. (U.S.), which involved the investigation and analysis of historical liabilities associated with printing operations and the allocation of environmental risks in transaction documents.
- UIL Holdings Corporation (U.S.), one of the oldest electric utility companies in North America, in the acquisition of the Southern Connecticut Gas Company, Connecticut Natural Gas Corporation and the Berkshire Gas Company (U.S.) from Iberdrola USA, Inc., a subsidiary of Iberdrola SA (Spain), at a total enterprise value of $1.296 billion in cash, subject to post-closing adjustments. The transaction involved the assessment of complex historical environmental liabilities in multiple jurisdictions on an accelerated time schedule, including historical manufactured gas plant sites, and environmental rate base recovery issues, together with the negotiation of environmental terms and post-signing environmental compliance issues.
Among others, significant environmental litigation matters include representing:
- John Crane, Inc. in asbestos indemnity and insurance litigation in Delaware, which resulted in the pro-policyholder decision by Vice Chancellor Strine in Viking Pump, Inc. v. Century Indemnity Co., 2009 WL 3297559 (Del. Ch. 2009).
- BP plc and its directors in derivative, securities fraud and ERISA litigation arising out of the 2010 Deepwater Horizon incident and ensuing Gulf of Mexico oil spill. These cases are pending in state courts in Delaware, Louisiana, Texas and Alaska and in federal court in Houston, Texas. The federal cases are part of a Multidistrict Litigation proceeding involving Gulf of Mexico spill-related litigation. S&C is also advising with respect to other associated insurance and environmental issues.
- JPMorgan Chase in connection with the alleged assumption of environmental liabilities as a result of its acquisition of Wachovia.
- A senior living facility on indemnification and liability issues with respect to vapor intrusion claims.
- Chrysler in connection with asbestos-related bankruptcy and insurance issues.
- CSR Limited in obtaining settlements totaling more than A$280 million (approximately US$222 million) in asbestos insurance coverage litigation against more than 60 insurers worldwide.
- First Manhattan in a landmark Second Circuit decision holding that CERCLA does not preempt state corporation law.
- The Canadian Government as amicus curiae in connection with the appeal by a Canadian company, Teck Cominco, to the United States Court of Appeals for the Ninth Circuit. Canada took the position that disputes concerning discharges by Teck Cominco in Canadian waters should be resolved at the sovereign level by Canada and the United States, rather than by a suit against Teck Cominco in the United States under CERCLA.
- Andalex in obtaining judgment in its favor in CERCLA litigation alleging Andalex’ liability on alter ego and successor liability theories.
- Inco in connection with environmental claims against it at various sites, environmental coverage litigation, and environmental indemnity litigation.
- Mack Trucks in connection with the litigation and settlement of EPA claims pertaining to alleged violations of engine exhaust emissions.
- Dozens of other clients regarding a variety of environmental and related indemnity issues.
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