West Coast Land Use and Environment

As one of the largest law firms in the United States, Holland & Knight has extensive experience and knowledge in all aspects of land use and environmental law, from acquisitions and project development to environmental audits and compliance assessments. The firm’s West Coast Land Use and Environmental Group provides to clients the added benefits of working with a focused practice group, combined with the broader resources of a large multidisciplinary firm. The more than 20 attorneys and land use professionals operating in our three West Coast offices are uniquely prepared to represent clients as environmental and land use law continues its fast-paced evolution. Each work on local zoning and entitlement approvals, but also have extensive knowledge in three or more areas of land use and environmental law, including:

• agricultural and conservation easements
• air quality
• biological and radiological materials
• bond financing
• brownfields redevelopment; water supply
• community facilities financing
• hazardous materials handling
• hazardous waste management
• homeowner association formation and management
• redevelopment and annexation
• sewage and water treatment plants
• special district formation
• state and federal agency advocacy
• state and federal legislative advocacy
• stormwater
• threatened and endangered species
• transit and transportation improvements
• wetlands

Our clients range from developers and builders to industry and trade associations, as well as federal, local and state governments.

Due Diligence

Members of our West Coast Land Use and Environmental Group offer clients a wide range of environmental, corporate and real estate experience. Within the team, numerous attorneys and professionals counsel purchasers, sellers and lenders on evaluating the issues and structuring transactions to minimize risk. We are intimately familiar with all types of evaluations, from single properties to large, integrated chemical, mining and manufacturing companies with multiple domestic and international facilities.

For example, we have:

• evaluated clients’ current compliance matters of sites with environmental requirements and potential liability for past practices including on-site and off-site disposal of hazardous substances
• negotiated and drafted the environmental provisions of stock or asset purchase agreements, leases, indemnity agreements, releases and other documents to provide support to corporate transactional counsel
• counseled on the pros and cons of alternative provisions and structures
• reviewed various types of properties on behalf of major equity investors and institutional lenders, including evaluation of environmental risks, as well as future development potential
• created innovative techniques to help quantify the potential risks in a particular transaction in addition to working with qualified specialty consultants to speed the due diligence process

Entitlements

Our attorneys and professionals have broad and extensive experience guiding clients through the land use approval process, providing project-level direction for a wide range of federal, state, county and municipal level entitlements. For the past decade, we have provided assistance on large-scale projects in the development and implementation of public participation programs to ensure that the interests of the community have been adequately addressed in order to minimize the controversy and opposition that can lead to lengthy and expensive litigation and delays in project construction. In an effort to avoid the "budget override factor," we assist our clients with anticipating and planning for these multijurisdictional requirements and processes so as to avoid budgetary surprises throughout the project. In addition, we act as advocates on our clients’ behalf in front of governmental entities, including city councils, planning commissions, county commissions, redevelopment agencies, and state and federal environmental agencies. On the client services front, it is the West Coast Land Use and Environmental Group's primary goal to provide high quality, well organized and complete application materials that will assist the governmental regulators in completing their review in a timely fashion.

For example, we have:

• assisted with general plan, specific plan, master plan and zoning ordinance approvals
• coordinated development agreements
• advised clients on redevelopment plans, including disposition and development agreements and owner participation agreements
• counseled clients on federal and state resource agency approvals related to environmental remediation, wetlands, species, coastal resources, historic resources, water and air quality, water supply and transportation
• assisted clients with annexations and sphere of influence approvals (LAFCO)
• represented clients on matters related to the Geologic Hazard Abatement District and Community Facilities (Mello Roos) District establishment

Brownfields Redevelopment

Holland & Knight maintains a national brownfields practice whose primary goal is to assist real estate developers, corporations and municipalities in transforming contaminated lands into economically productive, environmentally safe projects that help communities grow. The firm’s Environment Team co-chairs Jennifer Hernandez (Los Angeles and San Francisco, CA) and Amy Edwards (Washington, D.C.) have both achieved national prominence in their work on brownfields redevelopment. Our brownfields practice has seen tremendous growth as federal, state and local governments openly endorse converting environmentally contaminated land to productive new uses. Our national brownfields practice includes numerous attorneys and professionals who have technical degrees in the area of environmental studies. We also partner with environmental insurers in the brownfields industry to help manage the cost variables and liability risks associated with cleanup efforts. In addition, should the need arise, we can assist clients in securing public and private financing for site assessment, remediation and pre-mediation acquisition costs, as well as create incentives with environmental engineering and consulting firms to keep costs and uncertainties at a minimum.

For example, we have:

• advised clients on active agency enforcement
• counseled on balancing economic returns with risk management
• participated in the transformation of environmentally challenged land to productive new uses
• assisted clients in providing all of the tools necessary for future transactions involving brownfields efforts, including contractual indemnities, warranties, insurance, disclosures and lender and purchaser provisions
• provided ongoing litigation support (including federal and state "Superfund" sites)
• counseled on matters pertaining to future closure requirements for hazardous and solid waste facilities and land with underground tanks

Environmental Review (NEPA and CEQA)

Our attorneys and professionals assist a range of private and public entity clients in all aspects of compliance with both National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) requirements. Enacted over 35 years ago, NEPA is considered to be the leader of all environmental statutes. The Act, which requires federal government agencies to consider the environmental impact of all proposals that entail a "major federal action," has been a footprint for numerous other state and local governments when enacting similar statutes since its passage. A state statute similar to NEPA but considered to be perhaps even more stringent, CEQA requires agencies to mitigate impacts to the greatest extent practicable before approving a project. State and federal agencies also retain Holland & Knight for their legal needs in this area. In 2003, members of the West Coast Land Use and Environmental Group participated in the Council on Environmental Quality’s NEPA Task Force regarding modernizing NEPA implementation.

For example, we have:

• coordinated and prepared clients for the review process and worked to minimize additional costs and potential delays
• counseled on the numerous steps required in reviewing an action
• defended clients against third-party challenges when the need arose
• assisted clients in applying technical know-how in critical areas such as traffic analysis, air quality assessments, noise impact analysis, biological resource studies, wetlands delineations and water supply assessments

Wetlands

The Holland & Knight West Coast Land Use and Environmental Group has more than a decade of experience with the federal Clean Water Act Section 404 wetlands program and comparable state programs. We guide our clients through the complex regulatory requirements, as well as handle court challenges.

For example, we have:

• litigated avoidance strategies, preparation of the 404(b)(1) Alternatives Analysis and mitigation plans where avoidance was impossible
• assisted in securing individual, regional and national wetlands permits from the U.S. Corps of Engineers and state water quality agencies
• provided support in handling post-SWANCC wetland delineation issues
• coordinated efforts often on related matters involving endangered species, historic preservation, NEPA and other agencies at local, state and federal levels
• supported clients on a range of project types, including residential and planned communities, commercial developments, industrial developments, golf courses, ski resorts, developments, wineries and mining operations
• provided additional support for a range of clients that include developers and builders, major industrial corporations, governmental entities and individuals

Water Supply and Quality

In the area of water supply, our West Coast attorneys and professionals understand that the allocation of scarce water supplies is a critical issue, particularly in California. Members of our team advise public agencies and private clients throughout California on all aspects of water rights practice, particularly in development projects.

• assessed the water supply needs of a given project and identified potential challenges
• assisted in the acquisition, development and maintenance of surface and ground water rights
• navigated issues related to regional management of water supplies and water transfers

Water quality is also an area in which our attorneys and professionals possess a long history and substantial experience, specifically in matters pertaining to water programs at the state and federal levels that include permitting related to wetlands and aquatic resources, NPDES permitting and stormwater regulations. Our extensive knowledge in the area of complicated regulatory policies and procedures enables our team of attorneys and professionals to be creative in defining strategies and providing solutions that meet our clients’ needs. We provide counsel to a range of clients from developers, builders, industry and trade associations to local government agencies, and offer comprehensive support in such areas as regulatory counseling, permitting, compliance management programs, initiation or suppression of EPA rulemakings and TMDLs. On behalf of clients, our team has been involved in a variety of contested proceedings before federal and state agencies and courts, including a series of federal appellate opinions requiring the EPA to take cost effectiveness into account when setting discharge standards for conventional pollutants. Additional guidance is provided to clients in matters related to the management and defense of enforcement actions under state or federal clean water laws, including administrative actions, judicial enforcement actions of government and citizen suits.

In regards to complex regulatory policies and procedures governing this area, we work extensively with power plants throughout California to comply with new industry-specific water quality rules and to help shape the interpretation of these regulations. We also have comprehensive experience in hazardous substances permitting and groundwater contamination remediation and cleanup, working with state and federal agencies to achieve efficient solutions to water quality problems.

• assisted on SPCC plan preparation and compliance for manufacturing facilities
• coordinated permitting, compliance and reporting advice for industrial companies
• advised both industrial and developer clients regarding stormwater pollution prevention plans and compliance
• worked with industrial manufacturing companies regarding reporting of wastewater discharge violations

Endangered Species Act

Holland & Knight’s West Coast Land Use and Environmental Group members have extensive experience with the federal Endangered Species Act (ESA) and its state equivalents, such as the California Endangered Species Act (CESA). The federal ESA has become an extremely powerful tool to control local land use decisions.

For example, we have:

• worked to develop strategies to assist projects through the ESA process
• challenged listing or critical habitat designation decisions
• negotiated for permits when the species is already listed or critical habitat is already designated
• pursued litigation and defended enforcement actions under federal and state laws

Historical Resource

Our land use and environmental attorneys and professionals regularly assist clients with listing requirements under the National Register of Historic Places and state and local analogs, the building demolition or rehabilitation limits and possibilities and the mitigation options under the National Historic Preservation Act (NHPA) and the relevant state and local historic preservation statutes, as well as under the federal National Environmental Policy Act (NEPA) and state equivalents, such as the California Environmental Quality Act (CEQA).

For example, we have:

• navigated the requirements of the Secretary of the Interior’s Standards for Treatment of Historic Buildings
• counseled clients through the identification process of historical or cultural resources within the "area of potential effects"
• negotiated a comprehensive Memorandum of Agreement with the relevant State Historic Preservation Office (SHPO) pursuant to federal resource agency permitting on behalf of clients
• counseled clients through the project entitlement process – preparing, reviewing and defending the cultural and historic resources elements of Environmental Impact Reports, which have gained increasing scrutiny in California under new legislation and recent court challenges
• appeared before local preservation boards and commissions
• advised clients on the requirements, restrictions and benefits involved in renovating listed historical structures for redevelopment

Takings Law

We regularly represent property owners, as well as condemning authorities, in the acquisition of road rights-of-way, school sites, fire/rescue stations, parks, convention centers and electric transmission line rights-of-way. In addition to direct condemnations, the firm represents clients in connection with inverse matters, both regulatory takings and physical invasions.

For example, we have:

• assisted clients with a range of property types – from small residential parcels to a 7,000-acre planned development
• provided mediation and advocacy counsel in an effort to resolve as many condemnation cases as possible
• worked effectively with a variety of authorities, including cities, counties, school boards and transportation authorities

Environmental Health and Safety

In the area of Environmental Health and Safety, our attorneys and professionals serve a range of industrial and commercial clients across numerous industries.

For example, we have:

• conducted company compliance audits, preparing and revising compliance manuals, and advising clients on creating, implementing and maintaining environmental management systems that are ISO compliant
• represented clients in enforcement matters by California and federal OSHA: inspections and enforcement, asbestos compliance, challenges to Cal-OSHA citations and enforcement actions
• reviewed third-party compliance audits and worked with auditors on interpretation dispute issues
• represented real estate companies in matters involving worker safety and training, emergency reporting, asbestos, lead, indoor air quality and mold
• provided biotechnology work, including a company-wide "gap-analysis" to assess EH&S compliance relative to standards such as U.S. Sentencing Commission and Department of Justice guidelines, EPA and Cal/EPA audit policies, and best-practice standards such as ISO 14001 and OSHAS 18001, and designed facility specific environmental management systems (EMS) conforming to ISO 14001 and EMAS

Air Quality

Holland & Knight attorneys and professionals represent stationary and mobile sources, as well as real estate developers, in the full scope of air quality compliance, permitting and enforcement matters.

For example, we have:

• provided counsel on legislation and policy matters at the federal, state and local levels
• worked in conjunction with the California Air Resources Board and South Coast, Bay Area, San Joaquin Valley and other area air quality management districts, as well as EPA and Region IX
• assisted with compliance auditing to ensure privilege is maintained
• monitored emissions standards for NOx, SOx, PM10 and PM5, VOCs, CO2 and other toxic and hazardous air pollutants
• effectively coordinated relationships with consultants and technical advisors
• provided assistance on annual deviation reporting

Our work in the above mentioned areas has produced outcomes such as:

• a manufacturing company in a SCAQMD enforcement action resulting in dismissal of Notices of Violation due to flawed VOC test methods
• a manufacturing facility in an enforcement action under the South Coast’s RECLAIM emissions trading program where four violations were rescinded based on flawed calculations and lack of evidence
• a Central Valley food products manufacturing facility in connection with a new air district rulemaking, where an explicit exemption in the rule for the industry was ultimately secured

Hazardous Materials and Waste

In the ever-evolving area of hazardous materials and waste compliance, permitting, and enforcement, the West Coast Land Use and Environmental Group advises industrial companies on inventory and business plan compliance, transportation and closure requirements, compliance and permit-by-rule permitting and soil and groundwater clean-up actions initiated by local, state and federal agencies. In addition, our experience carries over into our leading brownfields practice, where potential groundwater contamination is often a major aspect of the environmental liabilities encumbering a site.

For example, we have:

• assisted clients on how to quickly and safely remove hazardous wastes from their facilities to avoid regulatory requirements and contamination of their facility and exposure of their workers in cases where they have only incidentally generated hazardous wastes
• achieved interpretive clarification or substantive changes to the regulations that favored business development without jeopardizing the human health or the environment in cases where regulations have impeded business operations
• worked as in-house counsel to governments and trade associations advising them on changes and challenges to the regulatory regime
• advised the owners of contaminated properties on cleanup and preparation for the reuse of those properties

Energy

The Holland & Knight West Coast Land Use and Environment Group complements the firm’s national Energy Team by providing counsel on all environmental aspects of regulatory work for a broad range of utilities, power companies and developers.

For example, we have:

• participated in large power plant transactions involving an array of energy reliability environmental and natural resource regulatory challenges
• counseled clients on FERC and state PUC enforcement
• assisted in regulatory restructuring and development matters
• counseled clients on environmental permitting and enforcement
• represented clients in numerous complex transmission line siting projects
• provided surplus land management strategy advice for California’s utilities

Biotechnology

Our land use and environmental attorneys and professionals have been at the forefront of biotechnology since federal regulation first began in the United States and today our team members stay current on the latest breakthroughs in the industry. We advise clients seeking to buy or sell biotechnology businesses. In addition, the geographic footprint that we provide as a firm enables us to negotiate and implement international agreements.

For example, we have:

• assisted with product reviews (government, competitors and activist groups)
• filed court actions (including challenges to government activities that are inconsistent with the law, defending approvals opposed by competitors or public interest groups, and resolving disputes with other private parties)
• met federal and state requirements for approvals
• advised on compliance issues (including labeling and potential liability)
• advised on import and export restrictions
• counseled clients regarding permissible relationships with contracting, manufacturing and marketing

Tribal Law

The West Coast Land Use and Environment attorneys and professionals work seamlessly with the firm’s Native American Law Practice Group on environmental issues arising from all aspects of Tribal economic development and natural resources management and protection. Our attorneys and professionals have routinely advised the Administrator and other senior officials of the United States Environmental Protection Agency (EPA) on environmental regulation in Indian country and we have unparalleled experience with the application of federal environmental statutes on Indian lands.

For example, we have:

• guided Tribally-owned combined heat and power facilities through the permitting process in the most polluted air basin in the United States to provide power to casinos, resorts and spas, independent of the non-Indian utilities
• trained Tribal environmental staff on the application of NEPA to the development of Indian gaming and other development projects
• helped clients prepare NEPA and similar documents required by Tribal-state compacts for casino and other economic development activities
• participated in fee-to-trust acquisitions
• represented Indian Tribes in processes before environment and natural resource agencies, such as the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, NOAA Fisheries, the Federal Energy Regulatory Commission and U.S. EPA

Insurance

In the area of contaminated land, special handling is a must. Holland & Knight attorneys and professionals have experience in a range of insurance coverage issues from discovery to cleanup. We act as an experienced guide to clients in their efforts to choose the appropriate coverage for environmental insurance policies, specifically those for real estate and corporate acquisitions that might include pollution legal liability, remediation cost cap, blended finite risk and secured creditor policies.

For example, we have:

• negotiated dozens of pollution legal liability (PLL) and "cost cap" environmental insurance policies with all of the primary carriers to facilitate real estate and corporate transfers
• negotiated innovative risk transfer mechanisms, such as a guaranteed fixed price remediation contract together with environmental insurance policies, to facilitate the sale of 200 convenience stores from a bankrupt entity to a new owner

Litigation

When litigation issues arise, the Holland & Knight land use and environmental group members work efficiently to address your needs.

For example, we have assisted clients in the following areas:

• Proposition 65
• mass toxic tort and Safe Drinking Water Act litigation
• administrative litigation under the California Environmental Quality Act
• challenges to permits and regulations under the Clean Air, Clean Water and Endangered Species Acts
• injunctive relief under the Resource Conservation and Reclamation Act
• settlement agreements and litigation of third party challenges brought under the California Environmental Quality Act