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The global political and scientific responses to climate change pose both tremendous uncertainty and significant opportunity for business, and Morgan Lewis is positioned to assist companies in either circumstance. We help clients adapt to a new world of regulations, and capitalize on public and private resources available for clean technology, energy conservation, and emissions reductions. This work includes counseling on carbon trading programs and corporate disclosures of climate change risks.
We partner with companies potentially facing carbon constraints as a result of U.S. Environmental Protection Agency (EPA) mandates or regional control programs. We advise on permits and reviews required for new low-carbon, renewable, and nuclear power generation and associated transmission—as well as securing financing and access to incentives. We structure clean tech startups and defend their intellectual property, negotiate power purchase agreements, and litigate insurance recovery matters.
Environmental Regulation, Emissions Trading, and Financial Disclosure
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 lawyers closely track legislation, litigation, and rule-making actions involving greenhouse gases in order to assist clients in navigating this legal and regulatory environment.
A particular area of focus is on the EPA’s efforts to control greenhouse gases under the U.S. Clean Air Act, as well as their possible impacts on industries and motor vehicles. We assess regulatory actions such as those involving the reporting of carbon emissions, and the implementation of climate-related changes affecting clean air permit programs. We are prepared to assist clients in responding to any resulting government mandates, including those related to New Source Review and Prevention of Significant Deterioration regulations.
Our environmental team includes former high-ranking state and federal government lawyers, among them the U.S. Department of Justice’s former chief environmental lawyer, 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 it has served as counsel to business organizations that have challenged EPA rulemakings. We are able to apply the knowledge gained in those representations in a new context as the EPA employs the Clean Air Act as a tool to regulate climate change emissions.
We have worked with clients operating in the northeastern United States, 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 those instituted to control acid rain, 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.
Our lawyers have participated in presenting industry concerns to the EPA on greenhouse emissions regulation. Soon after the EPA unveiled a proposal to require thousands of businesses to report their greenhouse emissions, Morgan Lewis provided a detailed summary and analysis of the plan’s impact on industries. We have continued to keep clients abreast of important regulatory developments on that and other issues—such as proposals affecting such key U.S. government regulatory regimes as new source performance standards and Title V permits. Morgan Lewis’s lawyers publish numerous articles and participate in webcasts on matters related to climate change, clean technology, and renewable energy, and they often are asked to speak on these topics.
We have also closely followed the U.S. Securities and Exchange Commission’s activities regarding corporate disclosures of climate change–related risks. Our lawyers who are focused on corporate governance are observing these and 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. Lawyers 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. This can be critical to companies seeking to utilize the tens of billions of dollars in loans, grants, and tax benefits the U.S. government has committed to renewable energy and related programs.
Morgan Lewis’s project development-focused lawyers include a partner who represented clients in acquisitions of various thermal, electric, and wind power generating facilities totaling more than 1,500 megawatts (MW). 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 governments employ tax incentives to spur the development of renewable energy, Morgan Lewis is focused on helping its clients capitalize on the potential benefits. Legislation to boost the United States economy has included billions of dollars in tax incentives and incorporated other changes—some allowing direct grants in lieu of tax credits under certain circumstances—that affect renewable energy and energy efficiency projects including wind, solar, biomass, geothermal, and others. Morgan Lewis lawyers 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 nonenergy 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 stands to become an even more important part of the global energy system. Our Nuclear Energy Practice represents more than 60% of the existing nuclear power plants in the United States and is handling a similar percentage of the applications for new plants throughout the country. Lawyers devoted to this sector assisted a client in obtaining the first design certification issued by the U.S. Nuclear Regulatory Commission (NRC), helped another win the first early site permit, and helped many other nuclear plants renew and amend their operating licenses. Our clients include companies applying for design certifications, early site permits, or combined licenses from the NRC; clients applying for Generic Design Approvals and Nuclear Site Licenses from the UK’s Office for Nuclear Regulation, or engaging with the UK’s Nuclear Decommissioning Authority; and companies in developing nuclear countries that are working to establish and comply with a legal and regulatory framework for nuclear projects.
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.
Renewable Energy Generation and Transmission
Our lawyers assist utilities, project developers, investors, entrepreneurs, and lenders on solar, wind, biomass and other renewable energy projects across the United States and internationally, including in Latin America, Europe, Asia, and the Middle East. We advise on development and procurement, debt and equity finance, mergers and acquisitions, corporate restructuring, tax equity investment and other tax strategies, intellectual property protection, and environmental issues, including climate change. Morgan Lewis lawyers have also assisted clients with the legal aspects of wind turbine and solar panel technology development, manufacturing, and sales. Such work includes patent and other intellectual property issues, as well as contract negotiations related to turbine and solar panel sales and installation. We have helped developers complete wind projects totaling thousands of MW of capacity and close billions of dollars in wind project financing. The firm also assists clients with assembling the large land parcels needed for solar projects and in financing those projects. We worked with the purchaser in a $190 million transaction involving a portfolio of geothermal projects. The firm’s lawyers 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’s extensive background in all aspects of planning, siting, permitting, and constructing numerous transmission projects. 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 lawyers have extensively represented energy clients in matters before the U.S. Federal Energy Regulatory Commission (FERC), state public service commissions, and the courts.
Power Purchase Agreements and Renewable Energy Transactions
Morgan Lewis’s lawyers draft critical power purchase agreements and have experience that includes assisting a utility in the southern United States negotiate one of the largest photovoltaic power purchase agreements in the country. Morgan Lewis also has represented developers and manufacturers on large solar generation projects in the western United States, assisted generators in selling the electricity to utilities, and represented clients in renewable energy credit purchase agreements.
With the development of structured markets driving significant energy industry litigation, Morgan Lewis represents both buyers and sellers of power in disputes under bilateral purchase agreements. These representations can involve arbitrations, court proceedings, or agency proceedings, or a combination of any of them.
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 and Technology 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 related areas—in maximizing opportunities presented by the explosive growth in the clean technology arena. In a single three-year span, Morgan Lewis represented more than 100 energy companies and handled more than 150 energy-related transactions, including venture financing, project financing, corporate organization and structuring, strategic partnership development, and the conducting of merger and acquisition transactions for clean tech companies.
Morgan Lewis’s Clean Technology team—including lawyers from our Business and Finance, Energy, Environment, Litigation, Real Estate, Labor and Employment, Tax, and Intellectual Property practices—serves the full range of needs of energy companies involved in producing clean power and developing energy-efficient technologies. Our lawyers 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 cycles, 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.
Real Estate and Land Use
Our lawyers are well positioned to assist renewable energy enterprises that require large parcels of land—solar and wind generation, for example—to handle an array of land-use, right-of-way, environmental, and transactional issues that can cut across multiple jurisdictions. We can also assist clients in regions where governments seek to require planners or project developers to assess the potential climate change impacts of proposed industrial, residential, and transportation projects, or where new building codes and energy efficiency standards are in play. To secure project approvals, Morgan Lewis offers environmental, real estate, and land use lawyers, including those with high-level government backgrounds. The firm’s lawyers have guided highly controversial developments to fruition across the United States, successfully navigating some of the strictest regulatory structures in the nation, such as those in California. We develop an overall plan to secure development entitlements and manage the permitting and environmental review process to maximize each client’s competitive position.
Morgan Lewis facilitates its clients’ land-use plans while navigating the entire suite of applicable laws. These include such U.S. laws as 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 lawyers 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 lawyers 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. 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 also may play a prominent role—we are able to help businesses in the particularly vital area of 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 lawyers routinely counsel companies, including smaller businesses, on coverage issues, including those involving business risks and interruptions, and property damage.