Climate Change

Morgan Lewis helps clients respond efficiently and effectively to government mandates aimed at limiting climate-changing emissions from all sectors, ranging from energy to chemicals to transportation to manufacturing to agriculture. Our attorneys are closely tracking legislation, litigation, and regulatory actions involving greenhouse gases in order to assist clients in navigating this rapidly changing area of the law. For instance, we are actively monitoring and advising clients on developments such as the U.S. Environmental Protection Agency’s conclusion that greenhouse gases pose a danger to public health, its proposal to regulate climate emissions from light duty vehicles, its recently finalized rules requiring certain industries and facilities to report their annual carbon emissions, and its recent proposals regarding how it will implement the New Source Review and Prevention of Significant Deterioration programs with respect to climate-change gases.

Our environmental attorneys include former high-ranking state and federal government lawyers, among them the U.S. Department of Justice’s former chief environmental attorney, a former chief executive of California’s top air pollution agency, and the former chairperson of the Pennsylvania Environmental Hearing Board. The firm’s Environmental Practice has, for many years, assisted companies on issues related to the implementation of the Clean Air Act, and has served as counsel to business organizations that have challenged EPA rulemakings, experience that is now being applied in a new context as the EPA moves toward using the Clean Air Act as a tool to regulate climate change emissions.

We have worked with clients operating in the Northeast, where states have embarked on a greenhouse gas emissions cap-and-trade program pursuant to the Regional Greenhouse Gas Initiative (RGGI). Having counseled clients regarding earlier air emissions allowances and offset programs, such as under the acid rain program, Morgan Lewis has helped companies develop compliance strategies and establish strategic positions on the auction and allocation of carbon allowances. The firm has also assisted utilities in obtaining renewable energy credits to help them meet state renewable portfolio standards.

At the federal level, we have participated in presenting industry concerns to the EPA on the greenhouse emissions regulation. Also, within hours of the unveiling of an EPA proposal to require thousands of businesses to begin reporting greenhouse emissions by 2011, Morgan Lewis provided a detailed report and analysis to clients. Morgan Lewis’s attorneys have published numerous articles and participated in webcasts on matters related to climate change, clean technology, and renewable energy, and they often are asked to speak on these topics.

With government officials and private organizations pressuring the Securities and Exchange Commission to require greater disclosures on the part of companies regarding their climate change-related risks, attorneys focused on corporate governance are observing related developments and advising companies on how to respond effectively.

Morgan Lewis assists companies with complex financing transactions in connection with clean technology and clean energy undertakings amid both favorable and challenging economic conditions. Attorneys with backgrounds in the particular industry or type of project assist in bringing together project developers and potential lenders.

Our lawyers who focus on project financing also scrutinize new or developing federal initiatives or incentives that may hold significant financing opportunities for some clients. Under the economic stimulus bill of 2009, the federal government has committed tens of billions of dollars in loans, grants, and tax benefits to renewable energy and related programs.

Morgan Lewis’s project development-focused attorneys include a partner who represented clients in acquisitions of various thermal electric and wind power generating facilities totaling more than 1,500 megawatts. Another represented utilities in sales of more than $14 billion of secured and unsecured debt, preferred equity instruments, tax-exempt bonds, and secured lease obligation bonds.

As federal and state governments employ tax incentives to spur the development of renewable energy, Morgan Lewis is focused on helping its clients capitalize on the potential benefits. The stimulus legislation alone included billions of dollars in tax incentives and incorporated other changes—some allowing direct grants in lieu of tax credits under certain circumstances—that will affect renewable energy and energy efficiency projects including wind, solar, biomass, geothermal, and others. Morgan Lewis attorneys assist companies in structuring and positioning themselves and their projects to take maximum advantage of these changes.

Morgan Lewis also assists clients with tax incentives aimed at encouraging non-energy businesses and industries to install small renewable projects, such as wind turbines, solar water heating, geothermal heat pumps, and similar equipment.

As a carbon dioxide-free energy source, nuclear power is poised to become an even more important part of the nation’s energy system. Our Nuclear Energy Practice represents the owners of nearly two-thirds of existing nuclear power generating stations. Attorneys devoted to this sector have handled 60 percent of the applications for new plants, assisted one client in obtaining the first design certification issued by the Nuclear Regulatory Commission, helped another win the first early site permit, and helped many other nuclear plants renew and amend their operating licenses.

Morgan Lewis represents companies in nuclear facility acquisitions, some of them involving cross-border transactions, and in matters involving the reorganization of nuclear assets through the formation of operating and generating companies. The firm provides counseling to clients on every aspect of nuclear licensing, regulation, and, if the need arises, investigations and enforcement actions.

Morgan Lewis attorneys have helped developers complete utility-scale wind projects totaling more than 1,700 megawatts of capacity and close wind project financing in excess of $1.6 billion. The firm also assists clients with assembling the large land parcels needed for solar projects. We worked with the purchaser in a $190 million transaction involving a portfolio of geothermal projects. The firm’s attorneys also advise companies involved in ventures to construct biofuel plants.

With renewable energy projects posing challenging demands for new or improved transmission facilities, clients benefit from Morgan Lewis’ extensive background in all aspects of planning, siting, permitting, and constructing more than 25 transmission projects. We have facilitated transmission developments serving wind generation in the West and Midwest and hydropower in the Pacific Northwest. The firm also has participated in the development of independent system operators, helped negotiate and implement joint ownership agreements and handled issues related to generator interconnections. Our attorneys also have extensively represented energy clients in matters before the Federal Energy Regulatory Commission, state public service commissions, and state and federal courts.

Morgan Lewis’ attorneys are experienced in drafting critical power purchase agreements. The firm has assisted a Southern utility in negotiating one of the largest photovoltaic power purchase agreements in the country. Morgan Lewis also has represented developers and manufacturers on big solar generation projects in the West, assisted generators in selling the electricity to utilities, and represented clients in renewable energy credit purchase agreements.

The development of structured markets has also produced an increase in litigation in the energy industry. Morgan Lewis litigators represent both buyers and sellers of power in disputes under bilateral purchase agreements, which can involve arbitrations, court proceedings, agency proceedings, or a combination.

Clean technology, with its twin potentials of reducing society’s environmental impact and generating significant returns for entrepreneurs, is a highly dynamic economic sector. For clean tech companies in every stage of development, our Emerging Business Practice provides customized legal guidance and international connections to address critical business issues. We advise companies of all sizes, in all industries—including those involved in energy efficiency, battery technology, solar technology, and all related areas—in maximizing opportunities presented by the explosive growth in the clean technology arena. Over the last three years, Morgan Lewis has represented more than 100 energy companies and handled more than 150 energy-related transactions, including venture financing, project financing, corporate organization and structuring, developing strategic partnerships, and conducting merger and acquisition transactions for clean tech companies.

Morgan Lewis’s interdisciplinary Clean Technology team of attorneys—including those from business and finance, energy, environment, litigation, real estate, labor and employment, tax, and intellectual property, to name a few—serves the full range of needs of energy companies involved in producing clean power and developing energy-efficient technologies. Our attorneys analyze company business models and advise on the best potential sources of capital and financing, and they commonly introduce promising entrepreneurial clients to venture capitalists. With new legislation and funding opportunities continuously being created, we work with clean technology clients to chart the best course of action for their companies.

As clients pursue these new opportunities, we remain committed to their success for the long term. We partner with clean technology companies throughout their life cycle, from R&D, financing and patent protection to commercialization, strategic partnerships, and exit strategies. In all these ways, the firm provides clean tech clients with a comprehensive and coordinated approach to business opportunities emerging as a result of both the domestic and international effort to reduce emissions.

Renewable energy enterprises that require large parcels of land—solar and wind generation, for example—face an array of land-use, rights-of-way, environmental, and transactional issues that can cut across multiple jurisdictions. In some regions, governments are also seeking to require planners or project developers to assess the potential climate change impacts of proposed industrial, residential, and transportation projects. Yet others are imposing new building codes and efficiency standards to address energy use. To assist in securing project approvals, Morgan Lewis offers environmental, real estate, and land use attorneys, including those with high-level government backgrounds. The firm’s lawyers have helped guide highly controversial developments to fruition across the United States, successfully navigating some of the strictest regulatory structures in the nation, such as California. Our attorneys develop an overall plan to secure development entitlements and manage the permitting and environmental review process to maximize the client’s competitive position.

Morgan Lewis facilitates its clients’ land use plans while navigating the entire suite of applicable laws. These include the Coastal Zone Management Act, which if not properly followed allows a state to effectively veto a federally permitted project, and the Endangered Species Act (ESA), which likewise can halt a project. Our attorneys represent clients in obtaining dredge and fill Clean Water Act (CWA) section 404 permits from the U.S. Army Corps of Engineers, and assist in developing the closely related environmental impact analyses conducted pursuant to the National Environmental Policy Act (NEPA) and state counterparts such as the California Environmental Quality Act.

The firm commonly deals with agencies at all levels of government, including the U.S. Bureau of Land Management, the U.S. Fish and Wildlife Service, the California Regional Water Quality Control Boards, state environmental permitting agencies, and historic preservation agencies. Our attorneys have represented energy companies in assembling tens of thousands of acres of land to facilitate wind, solar, or hybrid projects, and they also have assisted in obtaining rights-of-way or other discretionary entitlements for renewable generation sited on both federal lands and private land under various state jurisdictions, including wind projects generating over 1,000 megawatts. This work has included conducting analyses of right-of-way permits pursuant to NEPA, as well as related reviews under the ESA, CWA, and state and federal historic preservation laws.

In an era of heightened competition—one in which public sources of funding for renewable energy, clean technology, and other low-carbon technologies have become increasingly prominent—businesses must be particularly vigilant about protecting their intellectual property. Morgan Lewis’s Intellectual Property team includes patent litigators and professionals with technical knowledge in chemical, electrical, and mechanical engineering, and an array of other relevant fields.

The firm’s intellectual property lawyers have advised a global clean-vehicle company on trademark clearance and registration, copyright and advertising issues, and domain name disputes. Morgan Lewis also represented a solar company in an international trademark dispute and advised a biofuels company on trademark prosecution and related matters.

Climate change presents a potentially new set of risk calculations for both emerging and mature companies with respect to business-specific coverage or threats to infrastructure, transportation, and business continuity. Morgan Lewis’s Insurance Recovery Practice assists businesses in tailoring coverage to their particular needs and in securing clients’ rightful insurance assets when disputes arise. In the energy sector alone, the firm has obtained more than $1.5 billion in recoveries for energy industry and utility clients.

Morgan Lewis represented a large power producer facing potential liability as a consequence of climate change-related litigation brought in the aftermath of Hurricane Katrina, and successfully preserved the company’s insurance assets in the event any liability was ever found. The firm’s insurance recovery attorneys routinely counsel companies, including smaller businesses, on coverage issues, including those involving business risks and interruptions, and property damage.