From Special Interest Advocacy To A Mainstream Practice Intertwined With Other Practices

Saturday, April 1, 2006 - 00:00

Editor: Mr. Leland, would you tell our readers something about your professional background?

Leland: I have been an environmental lawyer for the last 32 years. I began my practice with a New York environmental boutique firm, and, after a Long Island detour, I have done environmental work exclusively in large New York firms since 1989.

Editor: How did you come to Kramer Levin? What were the things that attracted you to the firm?

Leland: I had worked for approximately 14 years with another New York firm - principally with their land use group and in real estate development - when the firm was acquired by a Chicago firm that did not consider land use as an important piece of their practice. Our group then decided to come to Kramer Levin.

Kramer Levin is very well positioned in the New York development community. It has a broad based real estate practice, and its corporate department provides an excellent platform for the corporate and regulatory counseling that I do. It has been a superb fit.

Editor: You have been an environmental lawyer for some 30 years. How has the practice evolved over the course of your career?

Leland: I began my career representing environmental groups almost exclusively. Much of this concerned opposition to federal and development projects at a time when much of the environmental regulation we deal with today did not exist. This was not a mainstream practice.

Today, the environment is on everyone's radar screen. Any corporate acquisition - indeed, just about any transaction - has an environmental dimension. The practice has gone from being a special interest advocacy business to a full-time counseling business.

Editor: And there are subspecialties that did not even exist a few years ago?

Leland: Prior to 1980, as but one example, there was no Superfund. Today there is a litigation explosion that requires full-time specialized expertise in this area. We have seen asbestos litigation as a major practice area, and the illnesses that derive from exposure to mold is similarly becoming an important area of litigation. Just recently, a verdict in Rhode Island imposed liability on a paint manufacturer for a plaintiff's exposure to lead paint. I believe this is going to become an increasingly important environmental concern and, of course, a focus for a specialized litigation practice. There are few businesses today that do not have the potential for some sort of exposure and, accordingly, a corresponding environmental law discipline.

Editor: And your own practice? How has this changed over time?

Leland: It has undergone a few evolutions. As I have indicated, I started out in an environmental group advocacy practice. In the late 1970s New York passed the State Environmental Quality Review Act (SEQRA), which incorporates environmental review procedures into the decision-making processes of governmental agencies and municipalities. The law created an obligation to analyze and mitigate environmental impacts and, concomitantly, a legal specialty involving shepherding clients through the process. I am still engaged in this work, which has as its purpose avoiding litigation down the road or, if that is not possible, avoiding the worst consequences of litigation. My practice encompasses both the litigation prevention and the litigation defense (and in rare instances prosecution) aspects of SEQRA and its national analog, the National Environmental Policy Act.

In the late 1980s, I was involved in a well publicized case involving the liabilities that lenders face under the Superfund. The prospect of a bank having to be concerned about Superfund liability brought about a real focus on environmental law and served to move my career in yet another direction.

Editor: Please tell us about some of the transactions you have handled recently.

Leland: I just completed an environmental review for a new stadium for the New York Mets. I am currently involved in the environmental review of the proposed new campus for Columbia University. I have also been involved in the environmental considerations that were part of the U.S. Steel bankruptcy and with the recent expansion of the Museum of Modern Art. I was also counsel to the Long Island Power Authority on a project involving the construction of five new plants - at a cost of $500 million each - in Long Island.

Editor: You have also had a parallel career as an environmental lawyer in the academic and professional association spheres. Please tell us about this aspect of your career.

Leland: I have taught at Hofstra Law School since 1991, alternating between a seminar on environmental law in real estate and commercial transactions and a land use course. This has been a wonderful opportunity for me to give something back, and, at the same time, the stimulation of this experience has injected creativity into my own practice that would not have otherwise been there.

On the association side, my primary activity is to serve as Chair of the Environmental Law Committee on the Real Estate Board of New York, a major trade association for New York's real estate industry. In that capacity, I assist the board in a variety of industry issues, including Brownfields issues. It is extremely rewarding to help in making sensible environmental policy.

Editor: Please give us an overview of Kramer Levin's environmental practice today.

Leland: Due diligence is the starting point for us, as it is with any lawyer engaged in a transactional practice. We work with environmental professionals and with databases. In light of the fact that what we are doing is assessing and allocating risk, information is essential. That data are now housed in very sophisticated electronic due diligence rooms. Our group has a great deal of experience in sifting through the data, and we work with the client's in-house staff to assess it. That, in turn, leads to the allocation of risk through indemnities, representations, warranties, and so on. Regulatory compliance is something that we do in connection with due diligence, since it is important for our client to know whether, and to what extent, the other party to the transaction has been in compliance.

We are also engaged in day-to-day corporate representation. We deal with the various regulatory agencies on an ongoing basis with respect to such things as a client's compliance with, say, a fuel spill or an air quality issue.

Environmental issues in bankruptcy come up in several ways. Sometimes it is a regulatory question. At other times we may represent a creditor that winds up with an asset formerly belonging to the insolvent party, and we review the environmental exposures.

We are also engaged in counseling with respect to the structuring of transactions. The right structure may enable you to protect a corporate parent from liability. I have learned more about "piercing the corporate veil" as an environmental lawyer than I could ever have imagined when covering that topic in law school. It is an important issue in environmental law and one that is changing all the time.

We handle litigation on Superfund matters, Clean Air Act matters, Resource Conservation Recovery Act litigation, solid waste litigation, and so on - pretty much the entire gamut of the litigation one might encounter in the environmental arena. That includes both private matters and governmental matters. One interesting subspecialty here has to do with insurance. Clients are anxious to know if their insurance covers a wide range of liability in the environmental field, and this is an active and growing aspect of the practice.

Land use development is another important part of my practice and that of the group. It deals with agency approvals under the National Environmental Policy Act and the State Environmental Quality Review Act. We are among the very few attorneys who handle these major undertakings.

Editor: Speaking of which, how do you put together a team to handle matters that require support from different disciplines and practice groups?

Leland: It all begins with Kramer Levin's Environmental Department, which now consists of six attorneys with between five and 30 years' experience in environmental practice. One of the benefits of being in a full service firm is that it enables me to reach out to Kramer Levin's other departments - land use, corporate, real estate and others - so that we can take a truly interdisciplinary approach to environmental practice.

For example, I recently received a call from a client who is considering applying to the New York State Brownfields cleanup program. One aspect of the program involves a generous - if arcane - set of tax credits. I was able to turn to a member of our tax department who has become an expert in this area.

Similarly, our creditors' rights group has become very proficient at handling issues where environmental law and bankruptcy converge. We also work with a variety of corporate groups and litigators. Our own litigation work is very general across the environmental field. We have one litigator in the group who is with us to do environmental and land use litigation exclusively.

Today everything is intertwined. It is not possible to practice law in a specialized area - even one with the breadth of environmental law - without recourse to other areas. That is why I find a large general practice firm a much better platform for my practice than a boutique.

Editor: Who are the clients? New York City developers? Is there a regional or national dimension to the department's practice?

Leland: The focus is New York, but on the regulatory and transactional cleanup advice side our practice is nationwide. Similarly, our corporate counseling work has a nationwide and, indeed, international reach. I recently handled work in Europe for a large Japanese enterprise that had acquired an American company with plants all over the world.

Editor: Are U.S. standards accepted on a worldwide basis?

Leland: That is a difficult question to answer. In some way the EU is stricter, but their views on the environment are more proactive than ours. They emphasize making the world green rather than cleaning it up. It is the difference between asking for permission rather than for forgiveness.

Editor: What are the trends in environmental law today?

Leland: There are increasing pressures for business to be more "green." That does not mean paying more attention to regulations or to the enforcement of existing standards. Rather, business is being asked to think about the environment proactively when building or outfitting office premises. Developments that require governmental approval are making an effort to design and build facilities that are more environmentally friendly. The green roof technique - with plants and trees on the roof - is one example, and it is a good way of reducing both heat loss and cooling expense. The use of what is called gray water for non-potable purposes is another example. Renewable resources are going to be increasingly important.

There are challenges that one must meet even when the project is put forward with the best of intentions. I recently represented a public utility that proposed to build a windmill. The local municipality turned it down on the basis of aesthetics and noise concerns.

Brownfield redevelopment is fairly new to New York, so the program is going to generate new issues. There is also, and not unconnected, the issue of environmental justice, which asks that minority communities not be disadvantaged by, say, having all the solid waste transfer stations and incinerators placed in those communities.

Environmental law is an exciting place to be, not least because of the unexpected issues that arise. One never stops learning in this field. And one is never very far from the knowledge that this work represents a contribution toward a better world for all of us.

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