Expanding the Scope of Environmental Due Diligence in Mergers and Acquisitions

March 7, 2024

M&A Environmental Due Diligence
M&A environmental considerations go well beyond mitigating risks; they increasingly focus on leveraging opportunities for sustainable growth and aligning with evolving global environmental trends.


Mergers and Acquisitions Due Diligence Trends

In the realm of Mergers and Acquisitions (M&A), environmental due diligence is a pivotal aspect, essential for evaluating potential risks, liabilities, and costs, and ensuring adherence to environmental laws and regulations. This diligence profoundly affects transaction valuation, structuring, and negotiation.

The key to this process is verifying compliance with environmental regulations at target facilities, which encompass local, regional, and national laws and standards related to pollution, waste management, resource use, and other environmental aspects.

Conducting All-Appropriate Inquiries (AAI) is vital for assessing a property’s environmental conditions and potential contamination liabilities. Under CERCLA 101(35)(B), following established commercial and customary standards, these inquiries are crucial for certain CERCLA liability defenses, including bona fide prospective purchaser, innocent landowner, and contiguous property owner defenses. These defenses require the landowner to demonstrate AAI completion before property acquisition.

Environmental regulations like CERCLA can extend liability beyond the actual facility or business owner, potentially impacting lenders in certain scenarios. Entities acquiring contaminated property are liable for remediation, regardless of their role in the contamination. While they can seek indemnity or contribution from former owners, authorities can still hold the current owner accountable.

Evaluating potential liabilities from waste generation and disposal, both current and historical, is critical. This includes considering future regulatory actions, adhering to continuing obligations related to ongoing cleanup or monitoring, cleanup costs, and potential legal conflicts or penalties.

In share purchases, buyers typically inherit all environmental liabilities of the corporate target. Conversely, asset purchases may allow acquiring assets without inheriting certain liabilities, especially those linked to historical issues.

Environmental liabilities can significantly affect deal valuation. Buyers may negotiate lower prices or specific indemnities for significant environmental risks, while strong compliance records can enhance value.

Mergers and Acquisitions in Industry and Manufacturing

Due to higher inherent environmental risks, industries like manufacturing, chemicals, and energy necessitate more thorough environmental assessments. Furthermore, even though operational aspects of these facilities may not represent likely sources of contamination, they may still present the threat of future release if they are not well managed and have business risks related to regulatory noncompliance. Features such as air permitting and wastewater management are important to consider, as large fines or even temporary injunctions against one or more processes can result in a significant financial burden.

Environmental insurance products can manage risks identified during due diligence, providing a safety net against unexpected liabilities.

In bankruptcy transactions, unique environmental issues arise. Claims like ongoing noncompliance and remediation obligations often persist post-transaction.

A crucial aspect often overlooked is the requirement of regulatory approvals for some M&A transactions, which the environmental records of the companies involved can significantly influence. In today’s environmentally conscious world, the public perception of a company’s environmental stewardship, especially in environmentally sensitive industries, can greatly impact the success or failure of a merger or acquisition. This public image aspect necessitates a careful and proactive approach to environmental due diligence, aligning with regulatory standards and societal expectations.

A Sustainable Approach to Mergers and Acquisitions

As environmental justice, climate change, and sustainability become more central, the M&A approach is evolving. Companies are now scrutinized for their alignment with sustainable practices, including their carbon emissions, energy efficiency, and overall impact on climate. This scrutiny isn’t limited to their current practices but also encompasses future potential, especially for companies possessing cutting-edge green technologies or sustainable methods, as these can offer significant competitive advantages in the market. Furthermore, a critical consideration is the impact of a company’s operations on local communities, particularly in areas identified as disadvantaged and more prone to environmental hazards. The U.S. Environmental Protection Agency is placing greater emphasis on monitoring these areas. Therefore, companies involved in M&A must be aware of the importance of community engagement and building positive relationships with residents and officials, especially in these vulnerable areas.

In summary, environmental considerations in M&A go well beyond mitigating risks; they increasingly focus on leveraging opportunities for sustainable growth and aligning with evolving global environmental trends. These considerations necessitate a broader, more comprehensive approach to environmental due diligence, incorporating regulatory, public perception, and strategic planning for post-acquisition integration and sustainable growth.


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Posted by Diane Samuels at 10:32 am