We serve the transactional, regulatory and litigation needs of clients involved in the development, acquisition and sale of energy assets, and the production, transportation, distribution, sale and purchase of energy commodities, including oil, natural gas, coal and electricity. We have assisted clients in all phases of project development, such as obtaining and managing licenses, permits and siting authorizations from federal, state and local agencies; structuring relationships among multiple project participants through joint ventures, partnerships and limited liability companies; and negotiating, preparing and reviewing project contracts and commercial relationships. We are also experienced in the financing of energy projects, including, among others, electric power, fuels and renewable energy projects. Our regulatory experience relating to the development of energy projects has included, among other matters, full representation before the Federal Energy Regulatory Commission and the U.S. Departments of Energy and Transportation on issues related to gas pipeline certification, natural gas storage, industrial gas use and pipeline safety.
Our experience includes structuring relationships between multiple project participants through joint ventures, partnerships, limited liability company agreements, and finance agreements and leases; analyzing project-related tax, tax credits, depreciation, grants and loans, and related regulatory consequences to optimize project structures; obtaining licenses and permits for electric generating and transmission facilities; advising on state environmental quality review act compliance; and assisting with real property acquisitions and assemblages and zoning approvals.
We have assisted in negotiating and structuring debt and equity investments and the preparation of loan, security, and intercreditor documentation and associated legal opinions, as well as the review of seismic, climatological and resource studies necessary to complete project financings for renewable energy projects. We also have advised on equity placements, nonrecourse and limited recourse construction, term debt, mezzanine debt, leveraged leases, equipment leases, and public offerings of taxable and tax-exempt debt. These transactions have also included intercreditor arrangements among multiple lenders lending on a pari passu basis or on a senior or subordinated basis.
Our experience includes control and assembly of property through options, purchase agreements and ground leases for wind power and clean coal facilities, including leases for meteorological studies; negotiation of wind leases and easements for all aspects of these facilities (including transmission line, conveyor, wind, utility and road easements); and drafting of necessary or appropriate restrictive covenants. With respect to clean coal facilities, we have negotiated right of way and sidetrack agreements for transportation purposes, water rights agreements, shared services agreements and dock agreements. We also have significant experience in obtaining zoning amendments and variances.
Energy Taxes & Credits
Our work includes review of tax credits to support project development and financing and review and presentation of private letter rulings before the Department of the Treasury and Internal Revenue Service (IRS) and state tax department advisory opinions. Our tax group offers additional value on strategic tax planning, corporate financial transactions, tax planning for investments and international companies, and development and evaluation of tax-advantaged structuring for project development.
We also have experience with the federal renewable electricity production tax credit (Section 45), particularly as it relates to electricity produced from open-loop biomass. The tax credit for open-loop biomass shares common features with the credit for electricity produced from wind power. Our experience includes analysis of Section 45 requirements and how electricity is produced from open-loop biomass; submitting a private letter ruling request to the IRS (prior to the announcement of the current IRS “no-ruling” policy); and meeting with IRS representatives to discuss open issues prior to the issuance of Notice 2006-88. We are also familiar with the tax issues presented by structured transactions (such as joint ventures and leasing arrangements) involving the Section 45 tax credit, and our lawyers have closely followed legislative developments and IRS guidance in this area, including the pertinent provisions of the American Recovery and Reinvestment Act of 2009.
In matters before the Ohio Power Siting Board (OPSB), we have litigated the proposed issuance by the OPSB of certificates of environmental compatibility and public need to nuclear and conventional electrical generating facilities and electric and natural gas transmission lines, represented a utility against a citizen claim that construction of a solid waste disposal facility required a certificate of environmental compatibility and public need, participated in OPSB proceedings in wind farm certification cases and obtained certification from OPSB for the siting of a 500 MW natural gas fired peaking power plant.
We have extensive experience representing public utilities subject to the jurisdiction of the Public Utilities Commission of Ohio (PUCO), including litigating service territory matters, defending and prosecuting complaints and other disputes filed by and against public utilities, representing companies seeking PUCO certification and representing companies in all aspects of state regulatory compliance.
We have represented a wide range of clients in all aspects of developing and financing both domestic and international energy projects. We have assisted in obtaining licenses and permits; structuring ownership relationships; planning tax strategies; and structuring to secure tax credits, accelerated depreciation and grants. From project inception to postcommercial operations, we have advised clients on every aspect of energy project development and project finance. Our experience is derived from representing project developers, equipment manufacturers, major construction companies, industrial companies and end users, regulated utilities and their unregulated subsidiaries, foreign industrial companies, power marketers, and financial institutions on these projects. We have been involved in the development of and contract negotiations for power projects utilizing a variety of fuels and technologies, as well as utility and asset privatizations representing a total potential generating capacity of more than 3,000 MW from renewable energy resources.
Renewable Energy Regulatory Experience
- Counseling clients regarding the regulation of qualifying facilities (QFs), exempt wholesale generators (EWGs), foreign utility companies (FUCOs) and project owners under the laws of various state public service commissions, the Federal Power Act (FPA), the Public Utility Regulatory Policies Act of 1978 (PURPA), the Public Utility Holding Company Act of 2005 (PUHCA) and other federal statutes.
- Representing clients in a broad range of regulatory proceedings, including QF certification under PURPA, EWG and FUCO filings and SEC no-action letters under PUHCA, electric rate, merger, financial, corporate and power marketing applications under Part II of the FPA, hydroelectric licensing under Part I of the FPA, and various state regulatory programs pertaining to renewable resources.
- Securing landmark FERC orders involving the implementation of PURPA affecting renewable and cogeneration facilities over the past two decades, precedential developments under PUHCA and the FPA, and the review and approval of energy sales, interconnection, transmission service, and ancillary services tariffs and contracts.
- Managing PUHCA matters on behalf of registered, exempt and non-utility companies. Several of our lawyers appear regularly before the state public service commissions and have been involved in industry restructuring proceedings.
- Representing existing and prospective preliminary permit holders and licensees for hydroelectric projects under Part I of the FPA in permitting, licensing, headwater benefits, dam safety and compliance matters before the FERC, and in related appellate proceedings. Most of the projects listed under Project Development have also involved our experience in the regulatory area.
Development of Project Support Contracts & Relationships
- Negotiating and reviewing critical contractual relationships, such as electric interconnection contracts, power sale contracts, asset management and optimization contracts, transmission service contracts, power brokering and marketing contracts, steam and thermal energy sale contracts, turbine procurement contracts (including warranty and guaranty provisions), operation and maintenance contracts, ash management and disposal contracts, and engineering, procurement and construction contracts.
Fuel Supply & Transportation
- Drafting, negotiating and reviewing critical supply, transportation, terminaling and storage contracts for fuels, including peat, biomass, natural gas and biogas.
Emissions Credits & Trading
- Building on the multinational emissions trading schemes for major carbon dioxide initiatives and regional exchanges on behalf of our clients. We offer unique capabilities in carbon credits, emission credits and trading regimes from experience derived in a variety of assignments.
- Counseling on best practices in multiple state and international markets, contracting and experience from international trading regimes and techniques to recognize emission reduction credits generated by international emission reduction projects (JI and CDM projects).
Secondary Market Transactions & Restructuring
- Representing owners, sellers, purchasers, creditors and contractors of operating renewable energy projects in workouts, placement of secondary market equity and project debt restructuring.
- Providing services to operating projects including bankruptcy counsel, regulatory compliance, fuel supply restructuring and assistance in the restructuring of financial arrangements governing such assets.
Energy Project Development
- Representing a client in connection with an equity investment in 10.5 MW of biomass electric generation facilities in California.
- Representing a client in connection with investment in a dry well ethanol production facility to be constructed in Ohio with an annual capacity of 100 million gallons.
- Representing several clients in Ohio and the Midwest region with respect to development of wind farms (both owned and leased).
- Representing a client in connection with the development of a 14.7 million gallon continuous process biodiesel facility to be constructed in Texas.
- Representing a client in connection with the development a of a 35 MW geothermal plant in Nevada.
- Assisting in the development of a financial structure for, and representing client investment in, an operating company for the development of biodiesel from waste grease in the northeastern United States.
- Representing a client in connection with the investment, participation and construction, and operation of a wind farm in British Columbia.
- Representing a client in the development and construction of a landfill gas project in New York, and the acquisition of an investment interest in an operating landfill gas project in Connecticut.
- Representing an energy and wind developer, the operator of power facilities in North America, in an equity investment by GTCRGolderRauner, LLC, a leading private equity firm. The transaction started to build a portfolio in the power sector of approximately $1 billion after the closing of the equity contribution agreement.
- Representing the owner in restructuring the ownership of two wind farms in California, including structuring the ownership to meet FERC requirements for utility ownership and to support acquisition in the $58 million transaction.
- Providing counsel and assisting with documentation of a loan agreement and an option agreement to purchase a 19 MW operating biomass facility in New York; providing support in due diligence leading to exercise of option; preparing LLC interest purchase and sale agreement; amending and restating LLC operating agreement; assisting with power purchase and REC sales agreements; and advising on state regulatory transfers.
- Representing a client in a joint LLC investment in 55 MW of mid-Atlantic wind farm projects during construction loan and financial closing. Also advised on LLC operating agreement and membership interests, related risk management and participation in project financing led by informational lender club.
Energy Project Financing
- Advising and representing a financial entity in connection with landfill gas onsite cogeneration projects in California to securitize the revenue stream from power purchase agreements between the developer and certain hospitals.
- Advising and representing a resort and event facility chain in connection with onsite cogeneration that is being project financed based on the strength of the securitized revenue stream from the resort chain to the developer.
- Advising and representing a financial entity in connection with proposed onsite cogeneration projects to be installed throughout Mexico and financed by securitization of agreements between the developer, a Mexican energy services company and the host governmental facilities.
- Working on a placement memorandum for a private equity venture capital investment of $5 million in a biomass technology company, structuring and review of debt and equity funding, transaction strategy, market review with the board of directors and senior management, and related documentation requirements.
- Assisting the municipal owners of a hydroelectric power plant in marketing green tags relating to the plant’s electricity sales.
- Representing numerous clients in the preparation of environmental impact statements and proposed findings of no significant impact under NEPA and analogous state programs for energy and other projects.
- Advising a corporate dairy farm concerning the feasibility of installing available wind turbines as a supplemental energy source at its dairies in North Carolina. The effort included evaluating local zoning and related requirements, wind conditions and capital costs versus the potential cost savings associated with the turbines.
- Advising a manufacturing company on a carbon management program, including carbon footprinting protocols.
- Advising a client concerning liability stemming from Nuclear Regulatory Commission (NRC)-licensed operations, including liability relating to low-level radioactive waste and NRC and applicable state requirements for the handling, storage and disposal of radioactive materials.
- Advising clients on risk management issues relating to the transportation and disposal of low-level radioactive materials and the transportation and processing of enriched uranium.
- Assisting a client concerning the environmental aspects of an initial public offering related to integrated gasification combined cycle plants.
- Providing environmental compliance counseling and transactional due diligence, including permitting and permit transfer, and addressing enforcement and liability issues for alternative energy projects of various types, including hydroelectric, geothermal, biomass and a variety of cogeneration installations.
- Providing assistance during project development on state and federal permit requirements.
- Representing clients during the due diligence stage of project financing and acquisition and continuing representation during post-completion and operation compliance.
- Representing owners of generating facilities in preconstruction permitting and post-construction enforcement.