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SustainabilityBusinesses are increasingly looking to create long-term value, reduce risk, and enhance corporate citizenship by integrating sustainability measures into their core operations. Sustainability—the "triple bottom line" of social, environmental, and economic concerns—is how businesses are distinguishing themselves from their competition today and strategically positioning themselves for the future. Concerns about climate change impacts and global energy and water supplies are transforming the legal environments in which businesses operate. There is a growing body of standards, regulations, reporting and disclosure obligations, and corporate shareholder-led initiatives promoting or requiring the adoption of sustainable practices by business and industry.As an environmental and energy law firm, MGKF is uniquely positioned to work with an array of clients in addressing current and prospective legal mandates and market demands for sustainability. We assist in identifying and managing emerging legal risks, developing policies and programs, evaluating the application of current and prospective regulatory standards, and auditing current practices. We help clients capitalize on new opportunities in green building; renewable energy; energy efficiency; emissions trading; carbon sequestration; waste reduction, recycling, and beneficial reuse; and green marketing and product labeling. We also counsel clients with respect to their corporate governance and litigation issues that can arise in the sustainability context. Our sustainable business practices at MGKF serve as a foundation for the advice that we provide to our clients. We have been using green practices in our daily operations since our founding 20 years ago. Our commitment is evident with our selection to help pilot the American Bar Association's Law Office Climate Challenge Program, our charter membership in the Greater Philadelphia Green Business Program, the designation of one of our partners to co-chair Philadelphia Mayor Nutter's Sustainability Advisory Board, as well as our annual sponsorship of an Environmental Community Service Award ($5,000 cash prizes) for local high schools and middle schools. Our firm has organized an in-house Green Team, which monitors compliance with our sustainability policy and provides leadership in meeting our goal of continuous improvement. We have used our own experiences in green office practices to counsel clients who are implementing their own programs to "go green" at their offices and other facilities. Some specific areas of focus within our Sustainability practice include the following: Alternative/Renewable Energy and Energy Efficiency As global and national energy policy undergoes a revolutionary transformation, opportunities for energy generation from renewable and alternative sources—including wind, solar, geothermal, and landfill methane—continue to expand. Renewable and alternative energy companies and clients seeking to capitalize on energy efficiencies and incorporate renewables into their energy mix have turned to MGKF to provide sophisticated environmental counsel with respect to their projects. The construction and operation of renewable and alternative energy generation facilities may trigger federal, state, or local permitting; generate renewable energy credits ("RECs") with value; and present new issues in existing regulatory programs. Projects such as ethanol refining, waste coal combustion, or coal-to-liquids production implicate environmental regulatory issues across all media. MGKF assists clients with a wide range of alternative energy projects, including construction of new energy generation facilities, the purchase and/or sale of the energy generated from these facilities, strategic planning with respect to renewable fuel use options, and projects that implement energy efficiency upgrades. Additionally, many alternative energy projects are eligible for significant federal and state financial assistance in the form of grants, loans, tax incentives or other types of financing. MGKF helps clients to secure funding from these programs. Carbon Capture and Sequestration The capture and geologic sequestration of carbon emissions from power plants and other industrial sources, often referred to as carbon capture and sequestration, is frequently mentioned as a key component of any comprehensive plan to address global climate change. In addition, the federal government and many states have provided significant financial incentives to private industry with the goal of developing commercial-scale carbon capture and sequestration operations. Pennsylvania, in particular, on account of its anticipated favorable geologic formations, is a strong candidate for development of a carbon capture and storage network in the Commonwealth. Carbon capture and storage operations pose a number of new and complex legal and regulatory issues concerning, among others, drinking water protection, waste disposal, hazardous substance releases, pipeline safety, and tort liability. Extensive experience with a broad array of regulatory programs is critical in strategic planning and risk management associated with new carbon capture and sequestration opportunities. MGKF provides counseling to clients regarding carbon capture and sequestration initiatives at the state and federal level. Climate Change MGKF's climate change practice draws upon the practical experience of its attorneys to represent our clients in the full range of matters affected by climate change programs implemented at the federal, state, and even local levels. To that end, we have worked with clients in evaluating strategic opportunities for enhancing their position with respect to current and anticipated greenhouse gas regulation. Our experience includes providing advice to clients on the ongoing legislative, rulemaking and policy-based initiatives related to the Regional Greenhouse Gas Initiative ("RGGI") in the Northeast, Pennsylvania's climate change initiatives, New Jersey's Executive Order No. 54 and Global Warming Response Act, EPA regulations concerning monitoring, reporting and permitting greenhouse gas emission sources, and the numerous legislative proposals currently pending in Congress. We are also familiar with complex issues related to carbon trading, efforts to achieve "carbon neutral" status, and climate change risk disclosure. Corporate Governance Corporations are increasingly facing internal and external requirements or expectations to disclose potential or existing environmental risks and liabilities, including those related to climate change such as greenhouse gas emissions, water resource availability and energy. We stay abreast of the rapidly changing regulatory programs and market-driven sustainability initiatives and provide strategic legal counseling to clients with respect to their environmental, energy, and sustainability concerns. We have assisted clients in establishing environmental risk management programs, developing corporate policies and programs, satisfying SEC disclosure requirements pertaining to environmental liabilities, fulfilling new and anticipated emissions reporting requirements under the Sarbanes-Oxley Act, and performing environmental crisis management. Green Building A growing number of jurisdictions have enacted green building codes or other programs mandating or incentivizing sustainable or "green" building. In addition, real estate developers, managers and building owners looking to strategically position themselves as leaders or to reduce potential liability risks are pursuing the use of voluntary green building standards. MGKF assists clients constructing or retrofitting green buildings, including projects aiming to achieve certification under the United States Green Building Council ("USGBC") Leadership in Energy and Environmental Design ("LEED") rating systems or other national or local standards. Our firm is a member of USGBC and we have both legal and technical staff accredited as LEED® Accredited Professionals ("LEED® APs"). We assist clients with regulatory approvals necessary to incorporate regulated aspects of green building into their projects, such as beneficial reuse approvals and water reuse approvals. We are also experienced in environmental site development and permitting issues and assist clients in negotiating environmental representations, warranties and indemnities in contracts, purchase agreements and leases. In addition, MGKF is experienced in identifying and developing strategic plans to maximize potential federal, state, and local funding and incentives for clients building green or undertaking green retrofits. Green Marketing and Product Labeling MGKF assists businesses with legal issues associated with the marketing of their "green" projects or services and counsels clients developing new technologies or expanding into new green market sectors to assist them in navigating opportunities and limiting potential risks. Compliance with the Federal Trade Commission's Guides for the Use of Environmental Marketing Claims, also known as the "Green Guides" (and similar state publications), is becoming an increasing focus of green marketing campaigns. We advise clients on product labeling requirements, product take-back programs, and the use of product labeling to mitigate product liability risks. Potential claims may also arise as a result of false or misleading statements made in marketing materials, agreements or other communications regarding the performance or attributes of green buildings. MGKF sponsored a Harvard Law School Environmental Law & Policy Clinic White Paper, The Green Building Revolution: Addressing and Managing Legal Risks and Liabilities, which provides recommendations on how to avoid or mitigate risks of such claims in the green building context. We have also counseled clients regarding partnering opportunities with green or sustainability focused organizations. Market-Based Programs Policymakers are increasingly turning to market-based regulatory programs to address a number of sustainability issues, including, for example, cap-and-trade markets to reduce carbon dioxide and other greenhouse gas emissions, energy portfolio standards and renewable energy credits to promote alternative energy generation capacity, and nutrient trading to control point and nonpoint discharges. While the application of market-based systems to achieve sustainability goals is an emerging area, market-based programs have been used in other environmental regulatory programs for some time, such as the Acid Rain Program and the NOx Budget Program under the Clean Air Act. MGKF professionals have extensive experience in these and other mature market-based regulatory programs and have assisted clients with, among other things, obtaining appropriate permits and allowances, ensuring compliance with necessary monitoring and reporting requirements, and securing emission reduction credits or offsets. MGKF can assist clients in formulating and implementing trading strategies under existing and emerging market-based regulatory programs and can provide counseling on how allowance or offset trading can fit within a comprehensive corporate compliance program. Waste Reduction, Recycling and Beneficial Reuse Management of waste is a concern—and an opportunity—for clients. Given the tremendous interest in material reuse and recycling at the state and local level, we are frequently called upon to advise clients whether ancillary materials generated in their processes are subject to waste treatment and disposal legal requirements or whether the materials may be reused or recycled. Likewise, clients purchasing secondary materials from others consult with us to analyze the regulatory status of these materials and how they may be used or reused in other applications. We assist clients in obtaining beneficial reuse approvals and other regulatory permits and approvals that may be needed to reuse certain materials or media. In addition, we counsel clients regarding building deconstruction and electronic waste (or "e-waste") management. MGKF has also advised businesses with respect to "waste-to-energy" projects including the use of solid waste as an energy feedstock, the cracking of waste tires to produce natural gas and oil, and landfill gas-to-energy projects. Litigation In the context of sustainability, litigation risks include, among others: challenges to anticipated federal and state climate change laws and regulations; disputes involving governmental authority to regulate greenhouse gas emissions; tort claims seeking monetary and injunctive damages for past emissions of greenhouse gases; certification and compliance of green buildings or products; false or inaccurate marketing (commonly known as "greenwashing"); and corporate liability disclosure. Our litigation practice deals with a wide range of litigation matters addressing natural resources, contractual disputes, regulatory obligations and class actions. Representative Matters The following are some of the representative matters MGKF has handled in the sustainability field:
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