This chapter looks at valuation. It explains that in a restructuring a paper valuation exercise is needed to establish who still is entitled to value and who is not. In a liquidation, where the business is sold to the highest bidder in the market through a proper sale process, a valuation exercise is not required. In liquidation, the value available for distribution is determined by the market. The chapter then offers a high-level outline of the key steps of the valuation exercise in the context of a restructuring. Terminology is defined, such as asset value, cash flow value, going concern value, goodwill, enterprise value, reorganization value, liquidation value, fair market value, and option value.
The issue is whether evidence of contamination is admissible and remediation costs may be offset in determining fair market value in eminent domain proceedings. The answer will depend on an analysis of methods of valuation and local acquisition statutes; economic impact of environmental regulation; effectiveness of attempts to resolve issues of environmental liability in the context of eminent domain proceedings; preclusive or nonpreclusive effect of the determination of value on future liability for environmental remediation; and use of the property. To understand these issues, an acquiring agency should view an eminent domain proceeding from the clear vantage point of a potential defendant or plaintiff in an environmental case. How these questions can be decided consistently with both local acquisition law and the other bodies of state and federal environmental law is the subject of a variety of recent court decisions. The theme that arises from the cases is that it appears fair to discount the valuation of property if the owner's procedural rights are satisfied, including determinations as to liability and third-party actions. Nevertheless, once payment is discounted, it is critical that the transferee does not have to pay twice for the same remediation but should be liable under the environmental laws for new or newly discovered contamination. A partial indemnification may be appropriate. In addition, issues regarding just compensation may be raised when an acquiring agency not only values a compensation award at zero but also seeks compensation for remediation costs that exceed the value of the property. Alternatives should be explored for escrowing the remediation costs, inviting the owner to clean up the property now or indemnifying the owner to the extent of the discount against future liability. One solution will not fit all cases, but these and other alternatives will make owners and states more thoughtful when property is acquired and better able to plan for the uncertainties that can arise in environmental liability.
Chaos in Kentucky: The Question of Standing to Recover the Fair Market Value of Indian Relics Found upon Private Property