In the News

Four Haynes and Boone Lawyers Join the Firm On Shortlist for 2014 Americas Women in Business Law Awards

Haynes and Boone, LLP has received eight nominations for the third annual Americas Women in Business Law Awards, presented by Euromoney Legal Media Group. Four firm lawyers are shortlisted for individual awards which recognize excellence in specific practice areas. Haynes and Boone is also nominated for its initiatives in four firm wide categories, as well as the best overall firm in a region. >>

Haynes and Boone Lawyers Contribute to Third Edition of Thomson Reuters Texas Environmental Law Treatise

AUSTIN – Five Haynes and Boone, LLP lawyers, led by Austin Partner Jeff Civins, participated in the preparation of the recently released third edition of the Texas Environmental Law treatise published by Thomson Reuters as Volumes 45 and 46 of its Texas Practice Series. >>

Business Journals’ “Who’s Who in Energy” Directory Features Haynes and Boone Partners

Six Haynes and Boone, LLP Partners have been selected for the Business Journals’ 2013 “Who’s Who in Energy” directory, recognizing the nation’s top energy leaders. >>



Recent Publications

Has the Standard for Performing a Phase I Environmental Site Assessment Changed? Yes and No

Purchasers and lessees of commercial or industrial properties know to obtain Phase I environmental site assessments to identify the presence of contamination - so-called recognized environmental conditions (RECs) - because of the very substantial liabilities these conditions may create. >>

TCEQ Audit Guidance Updated to Reflect Legislative Changes Authorizing Use by Prospective Purchasers

In September 2013, the Texas Commission on Environmental Quality updated its guidance on the use of the Texas Environmental, Health, and Safety Audit Privilege Act to reflect changes recently made by the 83rd Texas legislature to allow prospective purchasers of facilities to take advantage of the protections afforded by the Act. >>

Diversity Highlights (2013)

The Attorney Diversity Committee (ADC) at Haynes and Boone, LLP is comprised of more than 60 attorneys, management and administrative team members that meets each month to advance our firm’s numerous diversity efforts. This document summarizes the efforts and accomplishments of 2013. >>



Mary Simmons Mendoza

Partner

Austin


600 Congress Avenue
Suite 1300
Austin, 78701
T +1 512.867.8418
F +1 512.867.8690
O +1 817.347.6600

Dallas


2323 Victory Avenue
Suite 700
Dallas, 75219
T +1 214.651.5000
F +1 214.651.5940

Fort Worth


201 Main Street
Suite 2200
Fort Worth, 76102
T +1 817.347.6600
F +1 817.347.6650

Mary Simmons Mendoza

Mary Mendoza concentrates her practice in the areas of environmental and administrative law. She represents clients in regulatory compliance matters, hazardous and solid waste cleanups, contested case hearings, enforcement matters, appeals of agency decisions, and toxic tort litigation. Mary counsels clients on general issues of regulatory compliance as well as on environmental issues associated with real estate, corporate and other transactions.

Selected Client Representations

  • Oil and gas exploration and production company in UIC permitting hearings.
  • National oil company in a multimedia environmental audit of refinery/chemical production facility.
  • Energy auditing firm in regulatory matters before Texas Real Estate Commission.
  • A major manufacturer in defending a CERCLA cost recovery action.
  • Major retailer in the environmental issues associated with the acquisition and development of store locations.
  • A private equity fund in the acquisition of environmentally impaired assets out of bankruptcy.
  • A major manufacturer in responding to a CERCLA information request.
  • Purchaser of contaminated property in negotiating a bona fide prospective purchaser agreement with EPA.
  • A manufacturer of water treatment equipment in a four week jury trial regarding alleged design defects.
  • A major corporation in a multi-million dollar remediation of a contaminated site under the state voluntary cleanup program.
  • Regulated industries in permit proceeding before the Texas Commission on Environmental Quality.
  • Defendants in enforcement hearings before the Texas Commission on Environmental Quality and the Environmental Protection Agency.
  • Defendant in enforcement action relating to alleged Clean Air Act violations arising out of release from commercial refrigeration system.
  • Defendants in negotiations of RCRA and CERCLA cleanup orders with the Environmental Protection Agency.
  • Multiple companies in the settlement of CERCLA liabilities with the Environmental Protection Agency.
  • A multi state corporation in multimedia compliance audits of plant operations.
  • Major property management companies in the defense of mold lawsuits and in the development of mold policies.
  • An alternative fuels plant in connection with permitting before the TCEQ.
  • A seller in a divestiture involving multi state property transfer notifications.
  • A corporation regarding compliance counseling and divestiture of a water and wastewater supply corporation.
  • Entities in appeals of agency orders.
  • Multiple defendants in toxic tort litigation regarding a commercial waste disposal facility.
  • Manufacturers in negotiations with the Consumer Product Safety Commission relating to product recalls.
  • Entities in a contested case hearing related to horse race track licensing before the Texas Racing Commission.

Recent Publications and Presentations

  • "Impacts of Federal Environmental Laws on Oil and Gas Production," with J. Civins, presentation and article, National Oil and Gas Royalty Conference, Houston, Texas, October 22, 2013.
  • "Ethics for Energy Lawyers," with J. Civins, presentation and article, UTCLE Renewable Energy Institute, Austin, Texas, January 29-30, 2013.
  • "Sack(ing)ett To The EPA," with J. Civins, Law 360, March 22, 2012.
  • "Superfund's Transactional Defenses and the No Affiliation Prerequisite," with J. Civins, 239 Envtl. Due Diligence Guide (BNA) 231:2321, Jan. 2012 and Daily Envtl Report (BNA) March 9, 2012.
  • "Drafting Real Estate Contracts to Address Environmental Concerns," with J. Civins, State Bar of Texas Advanced Real Estate Drafting Course, Irving, Texas, March 1, 2012.
  • "American Law and Jurisprudence on Fracing," with T. Kurth, M. Mazzone and C. Kulander, Rocky Mountain Mineral Law Foundation Journal, Vol. 47, No. 2, 2010.
  • "Framework for the Environmental Regulation of the Use of Fossil Fuels for Energy Environmental Federalism: Background and Overview;" Essential Administrative and Environmental Law for Energy Projects Conference, University of Texas School of Law CLE program, November 18, 2010, Austin, TX and December 1, 2010, Houston, Texas, article and presentation.
  • "The Practical Impacts of Burlington Northern," with J. Civins, American Bar Association Section of Environment, Energy, and Resources as part of "Environmental Issues in Region 6: Recent Developments and Hot Topics" June 14-15, 2010.
  • "Energy and Climate Change Legislative Update: What's Hot, What's Not" Green Technology Law and Business 2010: Legislation, Financing, Carbon Trading and Sustainability conference, PLI, San Francisco, Feb. 22, 2010.
  • "Transactional Environmental Due Diligence - What diligence is due?" with J. Civins, January 5, 2010.
  • "Environmental Due Diligence - Counting Carbon," with J. Civins and A. Sencenbaugh, Natural Resources & Environment, Volume 24, Number 2, Fall 2009.
  • "Climate Change - An Overview," 21st Annual Texas Environmental Law Superconference, Austin, Texas, August 5-7, 2009.
  • "Corporate Dealmaking in a Carbon Conscious World," with J. Civins, State Bar of Texas 8th Annual Advanced In-House Counsel Course, July 30, 2009, presentation and article.
  • "The Carbon Revolution: Answering the Call," with J. Civins, Texas Bar Journal, April 2009.
  • "Companies Should Be Cautious When Making Green Claims," with J. Civins, Executive Legal Advisor, March/April 2009.
  • "Climate Change Disclosures - Avoid the Heat," with J. Civins, Texas Lawyer, February 2009.
  • "The Opportunities and Risks of the New Federal Stimulus Bill - Environmental Aspects," February 19, 2009, presentation.
  • "The Carbon Revolution," with J. Civins, UT CLE 2009 Carbon and Climate Change Conference, Austin, Texas, February 3-4, 2009.
  • "When It Comes to Eco-Marketing, It's Not Easy Being Green," with J. Civins, Austin Business Journal, November 21, 2008.
  • "Environmental Aspects of Corporate Transactions - Key Concepts," presented to Association of Corporate Counsel, Houston Chapter, September 25, 2007.
  • "Transactional Environmental Due Diligence - What Diligence is Due?" American Bar Association Natural Resources & Environment, Winter 2006.
  • "All Appropriate Inquiry ("AAI") Limitations and Concerns," AWMA Program, New Orleans, Louisiana, June 21, 2006.
  • "Reporting Environmental Liabilities and Risks After Sarbanes-Oxley" UT-Dallas Institute for Excellence In Corporate Governance, May 4, 2006.
  • "All Appropriate Inquiries - Are They Appropriate?" The Bureau of National Affairs, Inc., The Bureau of National Affairs, Inc., January 1, 2006.
  • "The Great Evolution of Environmental Law," @Law, Spring 2003.
  • "Texas' Use of Institutional Controls," for the American Bar Association's book, A Practical Guide to Implementing Institutional Controls at Brownfields and Other Contaminated Sites, August 2002.
  • Case Law Survey, 12th Annual Water Law Conference, CLE International, October 28-29, 2002.
  • "Environmental Case Law Update," 13th Annual Texas Environmental Law Superconference, August 2001.

Professional Recognition

  • Selected for inclusion in Austin Business Journal's list of Who's Who in Energy, 2013
  • Leading Individual - Environmental Law - Chamber's USA America's Leading Lawyers for Business (2006, 2011-2013)
  • Who's Who Legal: Texas Environmental Law (2007, 2008)
  • Texas Super Lawyer - Rising Star - Texas Monthly (2005-2007)
  • Best Lawyers in America - Environmental Law (2006, 2008-2014), Litigation - Environmental (2012-2014)

Community Involvement

  • Any Baby Can of Austin, Immediate Past President (2009-2010), President (2008-2009), Board of Directors
  • Leadership Austin (Class of 2005-2006)

Selected Representative Experience


$161 Million Credit Facility
Represented lenders and investors in a $161 million credit facility and warrant issuance for a saltwater disposal company that services E&P companies in Texas and New Mexico.

Texas Wind Farm Financing
Represented construction lenders and energy hedge providers in Texas matters for secured project financing of the 200-MW Stephens Ranch Phase 1 wind farm.

Texas Wind Farm Project Financing
Represented Morgan Stanley Bank as construction lender and energy hedge provider in Texas matters for secured project financing of construction of 67-MW Windthorst - 2 wind farm sponsored by BlackRock.

Innovative Mag-Drive, LLC Acquisition
Represented Flowserve US Inc. in its acquisition of Innovative Mag-Drive, LLC d/b/a Innomag, a manufacturer of advanced sealless magnetic drive centrifugal pumps.

Alliance Acquisition
Represented CD Listening Bar, Inc. d/b/a Super D in its acquisition of Alliance Entertainment Holding Corporation, a multimedia wholesale distributor.

$160 Million Senior Secured Advancing Term Loan and $10 Million Equity Investment
Represented investment firm in credit facility with oil and gas waste disposal company and corresponding equity investment in company. Proceeds were used to refinance existing indebtedness and fund an acquisition.

Monetization of Energy Infrastructure Assets - Sale-Leaseback of Natural Gas Liquids Pipeline Gathering System
Represented publicly traded energy exploration and production company in connection with a $225 million sale-leaseback of a natural gas liquids pipeline gathering system.

$60 Million Senior Secured Credit Facility
Represented administrative agent and lender in a $60 million senior secured credit facility and equity kicker agreement with a borrower in the oil and gas waste disposal business.

Panda Power Funds/Sherman Gas-Fired Power Plant
Represented Panda Power Funds in the secured financing of the development of a natural gas-fired power plant in Sherman, Texas.

Panda Power Funds/Temple Gas-Fired Power Plant
Represented Panda Power Funds in the secured financing of the development of a natural gas-fired power plant in Temple, Texas.

Ruby Tuesday Acquisition of Assets of Lime Fresh
Represented Ruby Tuesday, Inc. in its $24 million acquisition of assets of Lime Fresh Mexican Grill, Inc. and its affiliates. The asset purchase includes the brand's intellectual property rights and the assets of seven company owned restaurants, as well as royalties from five franchised restaurants.

Wingate Partners in its Acquisition of Preferred Compounding Corp.
Represented Wingate Partners in its acquisition of Preferred Compounding Corp., a supplier of proprietary and custom mixed rubber compounds.

CARBO Ceramics, Inc. in its Acquisition of BBL Falcon Industries, Ltd.
Represented CARBO Ceramics, Inc. in its acquisition of BBL Falcon Industries, Ltd., a leading supplier of spill prevention and containment systems for the oil and gas industry.

U.S. Treasury Department
Representation of the U.S. Treasury Department in connection with the restructurings and bankruptcies of participants in the U.S. auto industry.

Panda Ethanol, Inc.
Haynes and Boone represented Panda throughout the development, as sole counsel, and in the final project financing as co-counsel in a complex $188 million debt financing of its 100 million gallon-per-year ethanol facility employing novel technology in Hereford, Texas. Senior debt financing consisted of a $158.1 million senior secured credit facility which includes a $5 million working capital facility and a letter of credit supporting $50 million in tax-exempt bonds that were issued by the Red River Authority of Texas. Additionally, the project financing included a $30 million subordinated debt credit facility.

Merger with the Boeing Company and Aviall
Haynes and Boone represented Aviall Inc. in the company’s $2.05 billion merger with the Boeing Company. The deal represented the largest purchase for Boeing in a decade. As the world's largest independent provider of new aerospace parts and related aftermarket services, Aviall is a leading solutions provider of aftermarket supply-chain management services for the aerospace, defense and marine industries.

ClubCorp, Inc. in its $1.8 Billion Sale to KSL Capital Partners, an affiliate of KKR
Represented ClubCorp in its $1.8 billion sale to KSL Capital Partners (an affiliate of KKR). ClubCorp is the leading operator of golf courses and country clubs in the world.

Cogeneration Facility in Curacao, Netherlands Antilles
Lead counsel to sellers in the sale and purchase of a 133-MW electricity, steam, desalinated water and compressed air production facility in Curacao, Netherlands Antilles.

General Legal Affairs and Wind-Up - U.S. Subsidiary of Japanese Semiconductor Manufacturer
Advised in the general legal affairs and the windup of a U.S. subsidiary of a Japanese semiconductor manufacturer.

Racetrack Licensing Matter
Represented owner of horse racing venue in related licensing proceeding before Texas Racing Commission.

Representation of Majority Secured Lender in Chapter 11 Case - Manufacturer of Tissue Products
Represented the majority secured lender in the Chapter 11 case, filed on Newark, New Jersey, of a leading manufacturer of tissue products with a strong presence in the Northeast.

Memberships

  • Immediate Past Chair (2006-2007), Chair (2005-2006) and Executive Committee Member (2000-2007) of the Environmental and Natural Resources Law Section of the State Bar of Texas

Online Publications

11/25/2013 - Has the Standard for Performing a Phase I Environmental Site Assessment Changed? Yes and No
Purchasers and lessees of commercial or industrial properties know to obtain Phase I environmental site assessments to identify the presence of contamination - so-called recognized environmental conditions (RECs) - because of the very substantial liabilities these conditions may create.

10/02/2013 - TCEQ Audit Guidance Updated to Reflect Legislative Changes Authorizing Use by Prospective Purchasers
In September 2013, the Texas Commission on Environmental Quality updated its guidance on the use of the Texas Environmental, Health, and Safety Audit Privilege Act to reflect changes recently made by the 83rd Texas legislature to allow prospective purchasers of facilities to take advantage of the protections afforded by the Act.

04/12/2013 - DealThink: Environmental Due Diligence: How Much Diligence is Due?
You are general counsel of a publicly-traded medical device company. Your company’s Board has identified a publicly-held X-ray and CT scan component manufacturer that it would like to acquire. The target is a Delaware corporation based in California, with additional manufacturing facilities in Utah and Kentucky; within the past three years, it has sold two mothballed manufacturing facilities. It sends salespeople to 15 different states, but due to its Internet presence, it ships components worldwide. It also provides support services for its component parts within the continental United States.

01/25/2013 - New EPA Guidance on Tenant Liability under Superfund
On December 5, 2012, EPA issued revised enforcement guidance to assist agency personnel in exercising enforcement discretion regarding the treatment of tenants under Superfund’s bona fide prospective purchaser (BFPP) defense.

12/21/2012 - American Law and Jurisprudence on Fracing - 2012
Haynes and Boone, LLP energy attorneys have published an update to their comprehensive and highly regarded “American Law and Jurisprudence on Fracking,” a white paper that examines the legal, environmental and regulatory climate in active shale play states.

04/20/2012 - Oil and Gas Operations, Including Hydraulic Fracturing, Subject to New Air Quality Regulation - EPA Issues Final Rules Under the New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Programs
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on April 17, signed final rules that subject additional oil and gas operations, including hydraulic fracturing, to air quality regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) programs, and impose new and amended requirements under both programs.

04/02/2012 - EPA Proposes Greenhouse Gas Emission Standards for New Electric Generating Units
In response to a court order, EPA has announced proposed rules that would establish new source performance standards (“NSPS”) applicable to greenhouse gas emissions from new, fossil fuel-fired power plants (“power plants”). The proposal is a highly controversial one, which will effectively prohibit the construction of coal-fired power plants that do not capture carbon.

03/22/2012 - Supreme Court Rules on Pre-Enforcement Review Under the Clean Water Act - Sacketts Sack EPA
On March 21, 2012, the United States Supreme Court issued a unanimous decision in the much-publicized case of Sackett v. EPA (No. 10-1062), less than three months after oral argument, holding that the Sacketts were not precluded from judicially challenging EPA’s issuance of an administrative compliance order.

03/12/2012 - BNA Daily Environment Report Guest Article: Superfund's Transactional Defenses and the No Affiliation Prerequisite
To encourage brownfield redevelopment, Congress has enacted various defenses to superfund liability that require parties to show they have no affiliation with potentially responsible parties.

03/01/2012 - Drafting Real Estate Contracts to Address Environmental Concerns
Environmental laws sweep broadly, regulating a wide range of business activities. The obligations and liabilities they create affect not only ongoing businesses, but also business transactions, including real estate transactions, stock transactions, financings and leases.

12/07/2011 - EPA to Regulate Fracing Substances under the Toxic Substances Control Act
EPA recently made an announcement of interest to those in the oil field services sector as well as in the energy sector itself. On November 23, the agency announced that it was granting in part a petition by Earthjustice to initiate rulemaking under the Toxic Substances Control Act (TSCA), relating to chemical substances and mixtures used in oil and gas exploration or production.

08/23/2011 - Fracking Legal Landscape Updated in Haynes and Boone White Paper
HOUSTON – Haynes and Boone, LLP energy attorneys have published an update to their comprehensive and highly regarded “American Law and Jurisprudence on Fracking,” a white paper that examines the legal, environmental and regulatory climate in active shale play states.

08/16/2011 - It's Not Easy Being Green: The Ins and Outs of Environmental Touts

08/16/2011 - The IP Beacon, August 2011
A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law.

08/11/2011 - New EPA Oil and Gas Air Quality Standards
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on July 28 signed a 604-page package that proposes to subject additional oil and gas operations to regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPS) programs and to impose new and amended requirements under both programs.

06/21/2011 - American Electric Power v. Connecticut: Greenhouse Gas Regulation Derails Common Law Claims
On June 20, 2011, Justice Ginsburg delivered the unanimous opinion of the U.S. Supreme Court in American Electric Power Company, Inc. v. Connecticut, holding that the Clean Air Act and EPA action under it displaced the federal common law nuisance claims against CO2 emitters that plaintiffs sought to pursue.

12/01/2010 - Federal Environmental Framework For Energy Projects
At the federal level, the regulatory framework governing energy projects is complex and can involve a number of federal agencies. Which agencies will be involved depends on a number of different project-specific factors, including the type of activity, the location of the activity, and the type of fuel involved.

12/01/2010 - American Law and Jurisprudence on Fracking
The substantial growth of domestic unconventional shale resources in recent years has partially been a result of the increase in the use of hydraulic fracturing. This report deals with hydraulic fracturing and the legal and technical issues associated with it.

11/15/2010 - The Bureau of Ocean Energy Management, Regulation and Enforcement’s New Safety Environmental Management Systems Rule
On October 15, 2010, the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) issued a final rule that makes mandatory and expands API RP 75, a voluntary industry standard initially promulgated in the 1990s, that addresses the management of safety and environmental risks associated with Outer Continental Shelf (“OCS”) operations and facilities.

08/31/2010 - August 31, 2010 TCEQ Meeting to Discuss Oil And Gas Air Quality Permitting Changes
The TCEQ will hold an informational meeting today (August 31) from 9:30 A.M. until 3:00 P.M. (CST), to discuss the proposed changes to the air quality permit by rule and standard permit for oil and gas production facilities.

08/24/2010 - Recent Statutory and Regulatory Developments Related to Hydraulic Fracturing in New York, Pennsylvania, West Virginia and Ohio
The use of hydraulic fracturing, sometimes called "fracking," has made it economically possible to produce hydrocarbons, mainly gas, from the central Appalachian region of the eastern United States. Shale gas development from the Marcellus Shale is focused in four states: New York, Pennsylvania, West Virginia and Ohio.

08/05/2010 - EPA/TCEQ Dispute Over Greenhouse Gas Emissions Heats Up
The public dispute between EPA and the Texas Commission on Environmental Quality (TCEQ) over air quality issues continues to intensify. The latest salvo is a strongly worded letter from the state of Texas to EPA on the issue of air quality permitting of greenhouse gases.

07/08/2010 - Law Applicable to Hydraulic Fracturing in the Shale States
The use of hydraulic fracturing has made it economically possible to produce hydrocarbons from reservoirs which previously would have been uneconomical to develop. Now, an extraordinary oil and gas boom is afoot in America, and onshore natural gas production is advancing at an extraordinary pace.

06/14/2010 - The Practical Impacts of Burlington Northern
On May 4, 2009, the United States Supreme Court issued its opinion in two consolidated cases, Burlington Northern and Santa Fe Railway Co. v. United States (“BNSF”) (No. 07-1601) and Shell Oil Company v. United States, (“Shell”) (No. 07-1607), 129 S. Ct. 1870 (2009), on the related issues of joint and several liability and arranger liability under Section 107 of the Comprehensive Environmental Response Compensation and Liability Act, commonly referred to as CERCLA or Superfund.

05/25/2010 - U.S. Senate Bill Looks to Move Cap-and-Trade Plans Forward - EPA Issues Final Tailoring Rule
There have been two significant new developments in the regulation of greenhouse gases (“GHG”). One is the long awaited introduction of new draft legislation that sponsors hope will bridge the disagreements that have prevented the passage of comprehensive GHG legislation. The other is the issuance, on May 13, 2010, of EPA’s greenhouse gas tailoring rule, the final piece of EPA’s multiple promulgations to commence control of GHG from stationary sources.

04/06/2010 - TCEQ Proposes Restrictions on Standard Permits and Permits By Rule
On April 14, 2010, the Texas Commission on Environmental Quality (“TCEQ”) Commissioners are scheduled to consider proposing new rules that would significantly restrict the ability of companies who rely upon Standard Permits and Permits by Rule (“PBR”) for air quality authorizations to install new facilities or expand or modify existing facilities.

03/30/2010 - EPA Sets Timeline for Regulating Greenhouse Gases in Permits
The EPA said Monday that it will begin regulating greenhouse gas emissions no earlier than January 2, 2011. The EPA announcement came in its March 29, 2010 decision regarding reconsideration of the December 18, 2008 memorandum from then EPA Administrator Stephen Johnson (“the Johnson Memorandum”) that addressed when air pollutants become regulated pollutants under the federal Clean Air Act (“the Act”).

03/25/2010 - More Proposed Regulation of Oil and Gas Operations: Greenhouse Gas Reporting and Changes to Air Permits
Over the last several years, the environmental agencies have increased their focus on air quality issues associated with oil and gas production activities. On March 23, 2010, both EPA and the TCEQ announced new proposals that would increase air quality regulation of the oil and gas industry.

02/11/2010 - SEC Clarifies Climate Change Disclosure Obligations
On February 2, 2010, the Securities and Exchange Commission (the “SEC”) announced guidance regarding public companies’ disclosure obligations related to climate change. On February 8, 2010, the SEC published that guidance in the Federal Register, at which time it became effective. As a result, calendar year-end companies with upcoming annual reports on Form 10-K should evaluate whether their disclosures concerning climate change are consistent with the new guidance.

02/02/2010 - SEC to Clarify Climate Change Disclosure Obligations
On January 27, 2010, the Securities and Exchange Commission (the “SEC”) voted to provide interpretive guidance on SEC disclosure requirements as they apply to business or legal developments relating to the issue of climate change.

01/08/2010 - EPA Proposes Revised Ozone Standard
On Jan. 6, Environmental Protection Agency Administrator Lisa Jackson announced that the EPA is proposing to revise downward the primary National Ambient Air Quality Standard (NAAQS) for ozone. The primary standard was established to protect human health. The agency also proposes to develop a new secondary standard, established to protect public welfare. 

01/05/2010 - Transactional Environmental Due Diligence - What Diligence is Due
Enacted in 1980, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) discouraged parties from acquiring, financing, and developing contaminated properties - so-called Brownfields - by dramatically changing the scope of liability and corresponding risks for parties dealing with such properties.

12/07/2009 - EPA Issues Greenhouse Gas Endangerment Finding
On December 7, 2009, EPA Administrator Lisa Jackson announced EPA’s finding that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (“the endangerment finding”). Administrator Jackson also made a related finding that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (“the cause or contribute finding”). These findings have far reaching impacts on commercial and industrial operations, including many that have not previously been regulated under the federal Clean Air Act (“CAA”).

10/02/2009 - Greenhouse Gas (GHG) Regulatory Update: Three New Proposed Actions Continue the Debate
Greenhouse gas (“GHG”) regulatory developments to address climate change concerns continue. On September 23, 2009, we noted EPA had finalized its GHG reporting rules. On September 30, 2009, three new proposals were released, two of which, if adopted, would initiate air quality regulation of GHGs.

09/23/2009 - EPA Releases Final Rules for Reporting Greenhouse Gas Emissions
On September 22, 2009, EPA released its final rules for the reporting of greenhouse gas (GHG) emissions, impacting a wide range of businesses. The importance of these reporting requirements is enhanced because of the likelihood that either Congress will adopt a cap and trade GHG reduction program, EPA will move to regulate GHG under the existing federal Clean Air Act, or both.

09/15/2009 - Environmental Due Diligence - Counting Carbon
This article provides background information on the concept of carbon constraints and available options to reduce carbon. It then discusses how carbon constraints create assets and liabilities and makes suggestions as to how to identify those assets and liabilities through due diligence.
Published in Natural Resources & Environment, Volume 24, Number 2, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission.

09/11/2009 - EPA Proposes Disapproval of Certain Texas Air Quality Permitting Programs
In a widely publicized announcement, EPA is proposing to formally disapprove certain aspects of the air quality permitting of the Texas Commission on Environmental Quality (“TCEQ”). If adopted, the EPA proposal could have significant ramifications for companies that have relied upon those aspects of the Texas program that provide flexibility for making changes at existing plants without the need for amending existing permits.

08/05/2009 - Climate Change - An Overview
A recent study by the U.S. Global Change Research Program states that evidence showing a warming of the climate is “unequivocal” and attributes this warming to human activities. This June 2009 study caps what has been a year of increased focus on combating the perceived threats of climate change.

07/30/2009 - Corporate Dealmaking in a Carbon Conscious World
On June 16, 2009, the Obama Administration released a report entitled, “Global Climate Change Impacts in the United States,” that “confirms” that “global warming observed the past 50 years is due primarily to human induced emissions” of so-called greenhouse gases (GHGs) - collectively referred to simply as “carbon” - and is producing “immediate and local impacts.”

07/08/2009 - House Passes American Clean Energy and Security Act
On June 26th, the House of Representatives narrowly passed the American Clean Energy and Security Act (“ACES”), H.R. 2454. The bill will next be considered by the Senate, with some predicting a full Senate vote held in October. Because of the significance of this bill and the material effect it will have on many sectors of the economy, we thought it would be useful to summarize the House-passed version.

05/05/2009 - Supreme Court Limits Superfund Liability – In Two Ways
The United States Supreme Court yesterday handed down its eagerly awaited opinion in the consolidated cases of BNSF v. U.S. and Shell Oil Company v. U.S., on the issues of arranger liability and joint and several liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), or Superfund. On both issues, the Court ruled eight to one in favor of the potentially responsible parties, and those rulings should have positive repercussions for defendants in other cases involving these issues.

04/20/2009 - EPA Proposes Greenhouse Gas Endangerment Finding and that Greenhouse Gases from Motor Vehicles Contribute to Air Pollution
On April 17, 2009, EPA Administrator Lisa Jackson issued a long awaited proposal that would have EPA formally “find” that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (the “endangerment finding”). Administrator Jackson also issued a related proposal that would have EPA determine that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (the “cause or contribute finding”). These proposals are the latest developments in the controversial issue of whether EPA should regulate greenhouse gases to protect against the adverse impacts of global warming and are sure to generate significant debate.

04/16/2009 - Proposed Changes to Federal Estate Tax Laws
This alert from Haynes and Boone's Private Client Group lawyers provides an overview of two proposed changes to federal estate tax laws: the Baucus Bill and an amendment to President Obama's budget plan.

04/07/2009 - EPA Sheds Light on Availability to Tenant of Bona Fide Prospective Purchaser Defense to Avoid CERCLA Liability
Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, tenants—as well as landlords—may be considered present or past owners or operators of contaminated properties, and thus liable as "potentially responsible parties" (PRPs) for the substantial costs of investigating and remediating contamination, regardless of fault. Recently, the Environmental Protection Agency (EPA) issued guidance regarding the availability of a particular CERCLA defense to tenants. Although there are other arguments and defenses against liability, prospective tenants may wish to consider the protections afforded by this defense and the steps necessary to take advantage of it.

04/01/2009 - Draft Global Warming Bill Released
On March 31, 2009, U.S. Representatives Waxman and Markey released draft global warming legislation: The American Clean Energy and Security Act of 2009. The 648-page draft bill consists of four titles addressing clean energy, energy efficiency, reducing global warming pollution, and transitioning to a clean energy economy.

04/01/2009 - The Carbon Revolution: Answering the Call
This article provides basic information regarding GHGs, touching on the science and the law. It then identifies measures an individual manufacturer can take to address GHGs, especially carbon in the form of CO2, discussing some of the legal issues raised by those measures. Finally, it explains the relationship between carbon management and sustainability and then offers a conclusion.

03/16/2009 - EPA Proposes Rule for Greenhouse Gas Emissions Reporting
On March 10, 2009, EPA released its proposed rule for the reporting of greenhouse gas (GHG) emissions. This proposed rule is mandated by the Fiscal Year 2008 Consolidated Appropriations Act (H.R. 2764; Public Law 110-161) and will require a wide range of businesses to track and report their GHG emissions.

02/18/2009 - EPA Reconsideration of Carbon Dioxide in Air Quality Permits
On February 17, 2009, EPA Administrator Lisa Jackson issued a response to the Sierra Club’s Petition for Reconsideration of the December 18, 2008 memorandum issued by Ms. Jackson’s predecessor, Stephen Johnson (“the Johnson memorandum”), regarding reviewing carbon dioxide in air quality Prevention of Significant Deterioration (“PSD”) permits. This action is of interest to those seeking PSD permits, as well as those concerned about carbon dioxide regulation generally.

02/09/2009 - Companies Must Be Cautious When Making Green Claims
Texas Lawyer
While no overarching federal program addresses climate change and greenhouse gases (GHGs), many companies are voluntarily decreasing their emissions. When they inform investors, customers and regulators of those actions, legal liability can result should their claims prove inaccurate or misleading. Lawyers should be aware and prepared to advise their clients of these risks.

Companies provide climate change information to their investors in securities filings, Web sites and reports to nongovernmental organizations (NGOs) such as the Carbon Disclosure Project. They may tout their products’ green credentials to customers in multimedia advertisements and product labels. As a result, liability may arise under the common law, state deceptive trade practices acts, the Federal Trade Commission Act, and the Securities and Exchange Act.

02/06/2009 - Justice Department Targets Coal-Fired Power Plants
Since the November elections, there has been intense speculation regarding what environmental policies the Obama administration might adopt, particularly those involving enforcement and coal-fired power plants. An indicator of what is to come may be the February 4, 2009 announcement from the Department of Justice that it is filing a Clean Air Act enforcement action against Westar Energy for alleged violations of the new source review (“NSR”) permit requirements at a coal-fired power plant in Kansas.

02/03/2009 - The Carbon Revolution
The lyrics to the Beatles song, “Revolution,” can be applied, with some poetic license, to changes effected by the “Carbon Revolution,” as well as to changes in the turbulent 60s about which it was written. With the belief that the generation of carbon dioxide (CO2) by the burning of fossil fuels contributes to global warming, which in turn produces destructive changes in our environment, many are singing off the same page: “We all want to change the world,” to combat increased global warming - in an open-minded and constructive way.

12/29/2008 - Clean Air Interstate Rule Reinstated
In an unusual action, the U.S. Court of Appeals for the District of Columbia reversed its earlier ruling that would have vacated the entirety of the Clean Air Interstate Rule (“CAIR”).

12/22/2008 - EPA Administrator Says Carbon Dioxide is not a “Regulated Pollutant”
In a December 18, 2008 interpretative memorandum, EPA Administrator Stephen Johnson provided an answer to the Environmental Appeals Board’s decision on In re: Deseret.

12/03/2008 - EAB’s Decision Leaves Permitting Up in the Air
In its recent decision in In re: Deseret Power Electric Cooperative, the Environmental Appeals Board (“EAB”) of the U.S. Environmental Protection Agency (“EPA”) addressed whether and to what extent CO2 emissions needed to be considered in air quality permitting. 

11/21/2008 - When It Comes to Eco-Marketing, Its Not Easy Being Green
Austin Business Journal
Many believe that corporate America wouldn’t go green without governmental arm-twisting, but the fact is corporations are on the sustainability bandwagon, and the government is finally catching up. However, in marketing themselves as green companies, the maxim “no good deed goes unpunished” applies, and companies that are marketing themselves as green face legal risks.

05/01/2008 - Corporate Sustainability and Social Responsibilty: A Legal Perspective
This article provides an introduction to the concept of corporate sustainability and its legal ramifications.

01/24/2006 - All Appropriate Inquiries-Are They Appropriate?

ENVIRONMENTAL TIP: "No Further Action" Letters Do Not Preclude Further Action

01/01/2006 - Transactional Environmental Due Diligence: What Diligence Is Due?

11/04/2005 - New Environmental Due Diligence Standard - EPA Declares What Diligence is Due

07/01/2005 - The Third Party and Transaction-Related Defenses of CERCLA: An Overview
As appeared in the Environmental Litigation and Toxic Torts Committee Newsletter, July 2005, Volume 7, Number 1, Section of Environment, Energy, and Resources, American Bar Association.

Arranging Liability - A Waste is a Terrible Thing to Mind

10/28/2002 - Survey of Recent Cases
This paper provides an overview of 2002’s significant court decisions regarding water law. Although the paper focuses on the Clean Water Act and other water programs, the paper discusses selected major decisions in other areas of environmental law as well.

08/02/2001 - Litigation - Environmental Case Law Update

05/01/2001 - 77th Regular Session, Texas Legislature Real Estate Legislation

04/27/2000 - Transactions - Institutional Controls for Property Remediation

05/07/1999 - Transactions - Environmental Issues In Real Estate Transactions