Civil LitigationEnvironmental Law and Contract Litigation

June 11, 20200

Most people and businesses engage in contract negotiations and formation every day. What most do not understand, though, is the role that environmental attorneys play in reviewing contracts. An environmental attorney can particularly benefit a person or business in two specific ways. First, the attorney can suggest language to insert or remove from the contract to protect against liability. Second, the attorney can review a contract to ensure compliance with applicable environmental laws. In this way, environmental attorneys can assist clients in potentially avoiding costly and lengthy contract litigation.

How Environmental Lawyers Can Assist

One example of a field where environmental attorneys can add value is contracting for environmental services. Attorney Stuart Kaplow’s blog reviews a number of reasons why environmental attorneys should be consulted whenever contracts between a person or business and environmental consultants are executed. Certain contracts contemplate strict liability imposed for violations of laws such as the Comprehensive Environmental Response, Compensation, and Liability Act. Other contracts cover federal procurement. Both of these types of contracts require review for environmental considerations.

Contract Language

Thorough knowledge of contract drafting makes a huge difference. The issues that arise during contract litigation will depend on what, exactly, the contract says. This makes sense, right?

An attorney is aware of the methods of drafting as well as the case law that may apply to your contract. If all potential future issues are considered while drafting the contract, especially environmental issues, it is far more likely that the contract will provide the parties with all they need to settle disputes. By avoiding the need to seek assistance from the courts, the up-front costs of additional time spent drafting the contract saves the parties from the exponentially greater costs of contract litigation.

An environmental attorney can suggest to you whether a contract is missing any key language. Also, an environmental attorney can suggest whether certain clauses of the contract could potentially expose you to risk. This includes limitation of liability, waiver provisions, or indemnity clauses. Whether to include any environmental law-specific clauses and defining those “environmental laws” in the contract are tasks that an environmental lawyer assists with.

Compliance Review 

Making sure that a contract complies with environmental laws is critical to avoiding future contract litigation. An environmental attorney can review a contract to spot environmental laws that may affect the contract. Further, an environmental attorney will problem-solve to address risks and concerns ahead of time.

Just today, for example, the New York State Legislature passed a bill banning the burning of aqueous film-forming foam (AFFF, a controversial type of firefighting foam). This foam contains PFAS (per- and polyfluoroalkyl substances). A New York company contracted with the U.S. Navy to burn the material. But, the company did not inform local officials or the public of the illegal activity. Nor did the company conduct an environmental review. By neglecting to inform and review in advance, the company has possibly made itself liable. The liability may include contract litigation over the validity of the contract entered into with the Navy.

Environmental organizations including the Center for Biological Diversity sued the U.S. Bureau of Reclamation a few weeks ago. The lawsuit seeks to, among other things, set aside the conversion of short-term water delivery contracts into permanent contracts in California. The organizations cited the company’s refusal to comply with federal environmental statutorily-required environmental studies.

In both of the cases above, having an environmental attorney’s assistance during contract drafting could have prevented the resulting potential or actual contract litigation. The attorneys at Desautel Browning Law are uniquely qualified to help you or your business through the environmental considerations in the contract world.


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