Cost-Cap insurance policies pay for costs that exceed the estimated cost of a remedial plan.  These policies typically have large “co-insurance” and deductible provisions, so that the insured must still pay a significant portion of the cost overruns.  Policies are also available to cover contractors and consultants for environmental liabilities.

New York’s Oil Spill Act, Article 12 of the New York Navigation Law, provides a natural and attractive starting point for people seeking to recover cleanup costs for petroleum spills. The Act imposition of strict liability holds out the promise of avoiding litigation over events and states of mind for which little or contradictory evidence exists, or that may be vulnerable to highly subjective interpretation long after the fact. Under the Oil Spill Act, if someone’s actions caused or contributed to a discharge of petroleum, he is liable for its cleanup, without regard to his state of mind or relationship to others at the time. (more…)

So, what are the implications of the background principles of law discussed in earlier blogs, and what principles overall should govern how your environmental lawyer makes herself really useful to you in the process?

Three Overarching Tasks and Principles or considerations for both Buyer and Seller that emerge from this: (more…)

We devote a whole blog to this because it’s one of those areas where standard practice in the field, pre-environmental law, has been totally overtaken by cases where “as is” clauses intersect with environmental problems (more…)

By way of background, if you’re a real estate lawyer, you’ll want to understand that environmental law principles as applied in the context mostly derive from established real estate principles, though with a few twists – others can skim through this discussion or even skip it, but you might find it’s interesting. Some of this is borrowed from my environmental law colleague Alan Knauf, with thanks:

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This is the first of a series of blogs designed to provide a detailed “primer” for the commercial real estate professional and investor. My goal is unlock what some still see as the mysterious world of environmental risk in the sale or lease of virtually all non-residential properties; more importantly, how do you do it to protect yourself to the maximum practical extent? (more…)

Pollution exclusions were first introduced in insurance policies beginning in the early-1970‚ to remove any doubt that may have existed in connection with coverage for damage caused by pollutants which were released as a normal part of the insured‚ business operations. By the late-1980‚ however, most insurance policies included ‚ absolute‚ pollution exclusions. (more…)

A typical Commercial General Liability (CGL) insurance policy includes two duties: (1) the duty to defend; and (2) the duty to indemnify. The duty to defend, when triggered, obligates the insurer to provide the insured legal counsel to represent them and to defend them from claims, including claims that may ultimately prove to invalid, or outside the scope of the policy.  The duty to indemnify, when triggered, obligates the insurer to pay any costs or damages the insured must pay if the claim is upheld. (more…)

A typical Commercial General Liability (CGL) insurance policy covers claims made by third parties for damages the insured party is legally obligated to pay as the result of an “occurrence” resulting (more…)

5. Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who has discharged the petroleum, provided, however, that damages recoverable by any injured person in such a direct claim based on the strict liability imposed by this section shall be limited to the damages authorized by this section. (more…)