Environmental Practice: Energy Industry

Morgan Lewis has long represented a large number of energy enterprises—and provided counsel to multi-industry associations—on regulations, litigation and other issues related to the federal Clean Air Act and state air pollution control laws. Our air quality attorneys have worked in this sector of environmental law and regulation for decades. They handle representations involving both federal and state laws, and assist clients with national policy advocacy. They also advise clients on matters involving new source pre-construction permitting, Section 114 requests, enforcement actions, Title V permitting and airborne toxic substances, and on the availability of emission reduction credits.

Our firm has been involved in such accomplishments as negotiating one of the first voluntary consent decrees in the utility industry to resolve allegations of noncompliance with New Source Review (NSR) and Prevention of Significant Deterioration (PSD) requirements. We successfully represented a Minnesota utility in litigation that produced an agreement limiting the reach of the Clean Air Interstate Rule.

As part of a proactive approach to our work, we have prepared explanatory materials, including the handbook Title V Permitting Under the Clean Air Act. The handbook incorporates general principles to be followed in negotiating permits; optional language to be included on key permit terms; approaches to be followed in negotiating acceptable compliance methodologies and other critical advice. We also have assisted industry groups in such efforts as the development of a model operating permit rule to be used by states, and in putting forward numerous recommendations that were accepted by the U.S. Environmental Protection Agency (EPA) for streamlining and simplifying Title V permit applications and permits.

Morgan Lewis helps clients respond efficiently and effectively to government mandates aimed at limiting greenhouse gas emissions from electricity generation and other industries, and we have long assisted companies in the renewable energy sector. Our attorneys closely track legislation, litigation, and regulatory actions involving greenhouse gases in order to assist clients in navigating this rapidly changing area of the law. We are actively monitoring and assessing developments such as the EPA’s finding that greenhouse gases pose a danger to human health—a potential precursor to regulation under the Clean Air Act.

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 allowance and offset programs, Morgan Lewis has helped companies develop compliance strategies and establish strategic positions on such critical issues as the auction of carbon allowances. The firm also has 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 regulation of greenhouse gas emissions. We advise companies on how to effectively respond to challenges such as disclosing climate change-related risks in public reports required by the U.S. Securities and Exchange Commission (SEC). We have prepared detailed advisories for clients assessing actions taken by states, investors and others in this emerging area. Within hours of EPA issuing a 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 are often asked to speak on these topics. Our assistance to the renewable energy industry covers all business and environmental aspects of developing large wind and solar projects. We also advise start-ups companies that are positioned to provide critical components to the clean technology and renewable energy sectors.

Integrating resources across the firm’s 24 offices coast to coast and overseas, we are equipped to handle all legal aspects of mitigating both immediate and long-term implications of environmental crises, such as sudden spills, fires, explosions, or other releases that threaten the environment, employees, or public health. We manage relations with governmental authorities, including environmental regulators and the Occupational Safety and Health Administration (OSHA), and private parties that may be involved. We also offer advice to clients on how to avoid crises before they occur, and on advance planning for emergency response.

Specifically, we bring together attorneys with backgrounds in counseling on environmental regulation and government enforcement, worker safety and health, toxic tort defense, criminal defense, insurance recovery, congressional investigations, and media relations. This coordinated approach serves to minimize consequences—such as employee injury or toxic tort claims and difficulty in recovering insurance assets—and assures that clients receive integrated legal advice that fully covers multiple areas of concern.

We assist companies and individuals facing investigations for environmental crimes, utilizing attorneys who have worked extensively—both within government and in the private sector—with the applicable federal, state, and local laws. We bring a national presence to our representations, allowing us to respond to both urgent and longer-developing situations regardless of location. Our firm can assemble a customized interdisciplinary team, including attorneys from our White Collar, Environmental, and Energy Practices, to favorably resolve enforcement proceedings or prosecutions, or, ideally, to assist clients in steering clear of criminal proceedings altogether.

We counsel clients with respect to regulations that apply to hazardous waste generators, as well as treatment, storage, and disposal facilities; recycling operations; and underground storage tanks. Our work includes obtaining necessary permits for these facilities, as well as appealing adverse decisions. We also defend against administrative, civil, and criminal enforcement actions, at times winning complete dismissals. Our attorneys assist clients in other areas, such as leak and spill reporting and response and the closure and postclosure care of treatment, storage, and disposal facilities. We have worked extensively in matters related to the Resource Conservation and Recovery Act (RCRA), litigating rules in the U.S. Court of Appeals for the D.C. Circuit, defending against citizen suits, and negotiating penalties with the EPA.

Morgan Lewis’s insurance recovery team helps clients manage their environmental liability by maximizing and preserving the value of their insurance assets. Often working in tandem with our colleagues in other practices, we assist companies at every critical step, from advising them on the procurement of environmental insurance to securing maximum recoveries when claims are filed.

We prosecute, bring to trial, and negotiate major environmental insurance claims for many of the nation’s most prominent companies, often employing innovative fee arrangements to share the risk. Our attorneys are admitted to practice in a dozen key jurisdictions. We have handled claims or adjudications in all 50 states and internationally.

Motivated by the central goal of assisting clients to expeditiously attain the right to build their projects with reasonable conditions and without litigation, our attorneys help energy companies obtain project approvals from all levels of government. These matters particularly involve renewable energy developments requiring large land commitments, often on public property. We counsel clients in obtaining land use and zoning approvals for development on private and publicly owned lands, as well as in securing permits from federal agencies such as the Bureau of Land Management (BLM). Our attorneys have also assisted clients on projects involving compliance with the National Environmental Protection Act (NEPA) and “little NEPA” laws such as the California Environmental Quality Act (CEQA). We help in analyzing potential impacts on threatened and endangered species, wetlands, water bodies, and historic resources.

The wide variety of matters on which we work includes helping companies obtain wind park easements and ground leases, and rights over federal and state lands for transmission rights of way. We have helped assemble thousands of acres of land parcels for wind, solar, gas, or gas-solar hybrid projects. We offer NEPA counseling with respect to wind projects on federal lands. On behalf of other clients, such as the owners and operators of nuclear generating stations, we also handle matters involving the Army Corps of Engineers, the National Marine Fisheries Service (NMFS), and the EPA.

Clients on either side of threatened or actual litigation implicating environmental laws are represented by Morgan Lewis’s courtroom-tested lawyers who have handled environmental cases at every level. Our environmental litigators advise companies regarding complex matters under both federal and state law, including cases involving multiple parties with competing interests.

Morgan Lewis’s attorneys have represented clients in disputes that include high-stakes Superfund cost-recovery matters, mass toxic torts, defense against citizen suits, defense against government enforcement actions, appeals of administrative decisions, and insurance recovery matters. Along with a large number of former high-level government attorneys, we also bring to our representations lawyers who have handled all aspects of environmental representations in private practice for decades.

We also engage in litigation involving rulemaking and implementation. We have represented energy clients and multi-industry associations in cases involving the imposition of state clean-fuel requirements, the Clean Air Act, the Emergency Planning and Community Right-to-Know Act (EPCRA), and RCRA.

Our attorneys have been deeply involved in environmental regulatory and policy issues since the 1970s. We are also active participants in industry groups such as the Edison Electric Institute and the American Gas Association. We closely monitor regulatory and legislative developments regarding environmental and energy matters, and we frequently produce timely explanatory advisories and analytical materials on these issues for our clients. In addition, we focus attention on such emerging concerns—some with potentially significant environmental components—as the evolving regulatory requirements for securing energy facilities and the electrical grid against terrorist attack and cyber threats.

Through our representation of such educational and advocacy groups as the Clean Air Implementation Project (CAIP) and the Clean Air Act Information Network, we have remained in the forefront of efforts to support industry’s policy positions and to keep companies informed about new developments in air quality regulation. The CAIP has participated in the development of virtually all major EPA clean air guidances and rulemakings since the early 1990s, while the Information Network provides education services and information to its members. We also act as counsel to a pair of major industry organizations: the Superfund Settlements Project, which seeks solutions to recurring problems that delay the resolution of Superfund cases, and the RCRA Corrective Action Project, which advocates for cost-effective cleanup standards and keeps its members up-to-date on critical developments.

Clients with business before regulatory agencies or legislative bodies, or whose interests would be affected by their actions, receive the benefit of the insights and contacts of Morgan Lewis attorneys who have senior-level public service backgrounds. Among our many government alumni are the former Assistant Attorney General for the Environmental and Natural Resources Division in the U.S. Justice Department; a former White House counsel or deputy counsel under three presidents; the formerly longest-serving general counsel in the history of the Nuclear Regulatory Commission (NRC); and a former NRC regional counsel who participated in hundreds of enforcement actions, as well as provided legal support for commission inspection and investigation activities, including the re-start of the Three Mile Island plant.

Because of its low carbon footprint and distinctive regulatory programs, nuclear power enjoys particular advantages in the environmental arena but also faces unique challenges. Our firm has long represented a majority of nuclear generating plants, giving our attorneys a thorough understanding of the environmental, regulatory and policy framework within which the industry operates. When environmental laws and regulations intersect with those governing the nuclear industry, we represent companies before the NRC, the EPA, and the federal courts. Attorneys in our Nuclear Energy Practice represent the owners of nearly two-thirds of existing nuclear power generating stations, and they have handled 60% of the applications for new plants.

Our environmental representations for nuclear generators include drafting environmental reports for new facilities to support governmental NEPA analyses, and providing advice on the implications of the National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA) for particular sites. We assist in securing Coastal Zone Management Act (CZMA) certifications, counsel with regard to surface and groundwater withdrawals, and advise on the full range of environmental issues that arise with the purchase of a nuclear facility.

We also handle the industry’s most challenging radioactive waste management, decontamination, and decommissioning issues. We counsel clients regarding the financial assurance requirements for decommissioning liabilities and the management and tax treatment of decommissioning trust funds. We assist in developing decontamination and decommissioning plans, and we provide advice on governmental standards for radiological contamination and other licensing issues.

Morgan Lewis has advised clients on site remediation issues in virtually every state, working with companies to find the most cost-effective and efficient means of accomplishing cleanups and addressing related obligations. Our attorneys—some of whom worked for remediation contractors before practicing law—assist clients in connection with federal and state remediation orders, natural resource damages issues and in complying with state property transfer laws such as the New Jersey Industrial Site Recovery Act and the Connecticut Transfer Act. We assist our clients in working with technical consultants conducting site assessments, remedial investigations and feasibility studies, and remedial work. We also have counseled clients regarding their involvement in projects covered by state voluntary remediation systems or “brownfields” programs, including helping facilitate the development of electric generating facilities on brownfields sites.

Our attorneys conduct due diligence for mergers and acquisitions involving energy companies and individual electric generating units. We draft and negotiate transaction terms, and complete and file documents required by regulatory agencies to accomplish the transfer of environmental permits in connection with the purchase of generation and delivery assets and companies. Our lawyers also prepare contract provisions relating to the purchase and sale of emission allowances and offsets.

Morgan Lewis’s environmental lawyers also team with other practices within the firm to help advance projects while avoiding unnecessary costs and delays. Working with the Business and Finance and Real Estate Practices, we represent clients involved in mergers and acquisitions, sales and leases of real property, corporate restructurings, and bankruptcies. We counsel clients in the acquisitions of refineries, fossil fuel and nuclear electric generating facilities, and distribution assets. We have also been involved in numerous renewable energy transactions, including the purchase of renewable energy credits, representing utilities in solar energy purchases, large-scale financings of wind projects, and negotiating sale-leaseback agreements.

We have counseled numerous energy companies on the critical issues surrounding electricity transmission. Morgan Lewis attorneys have been engaged in all aspects of siting and permitting more than 25 transmission lines. Our attorneys have assisted clients with addressing alternative routes for transmission lines, impacts on birds and threatened and endangered species, effects on water quality in locations where lines cross bodies of water, potential impacts on historic places and other resources from clearing and maintaining transmission corridors, and health impacts from electromagnetic fields.

Our lawyers also handle matters concerning both the Federal Energy Regulatory Commission (FERC) and state siting authorities, and they routinely address NEPA and state regulatory issues. Working together, attorneys in our Energy, Environmental, and Land Use Practices assist clients in understanding the scope of requirements under NEPA, preparing environmental reports for the relevant agency, and defending the resulting studies during hearings and appeals.

Our work in the water quality area includes extensive counseling on Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits and on Section 404 dredge and fill permits. We assist with discharge permits and pretreatment permits, and we negotiate permit terms and handle challenges in adjudicatory hearings. We advise electric generating clients on the regulation of cooling water intake structures under Section 316(b) of the Clean Water Act. We also work with clients in their interactions with state regulatory authorities, such as those overseeing water quality programs and wastewater discharge requirements. Additionally, we have assisted clients in obtaining state certifications and letters of concurrence required under federal laws such as the Clean Water Act and the Coastal Zone Management Act (CZMA) when building or expanding certain facilities.

We provide full-service regulatory and litigation representation—including civil and criminal, transactional, and insurance recovery—to energy companies in environmental matters arising from federal and state statutory requirements, agency regulatory programs, and common law. We represent companies before regulatory agencies when our clients are seeking permits or permit modifications for new, modified, or expanded facilities, and we negotiate permit conditions. Our attorneys also provide advice on compliance and best practices to reduce the threat of enforcement actions or litigation, and we help develop customized training programs to further prevent regulatory conflicts.

Our attorneys work with all major environmental agencies and statutes, including the following:

Federal Laws

• Clean Air Act
• Clean Water Act
• Coastal Zone Management Act (CZMA)
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)
• Emergency Planning and Community Right-to-Know Act (EPCRA)
• Endangered Species Act (ESA)
• National Environmental Policy Act (NEPA)
• National Historic Preservation Act (NHPA)
• Oil Pollution Act (OPA)
• Resource Conservation and Recovery Act (RCRA)
• Safe Drinking Water Act (SDWA)
• Toxic Substances Control Act (TSCA)

Federal Agencies

• Environmental Protection Agency (EPA)
• Department of Commerce (including National Marine Fisheries Service, or NMFS)
• Department of Defense (including Army Corps of Engineers)
• Department of Energy (DOE)
• Department of Justice (including FBI, Office of the Attorney General, U.S. Attorneys offices)
• Department of the Interior [including Bureau of Land Management (BLM); Fish and Wildlife Service (FWS); Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE, formerly Minerals Management Service); Office of Surface Mining (OSM)]
• Department of Transportation (DOT)
• Federal Energy Regulatory Commission (FERC)
• Nuclear Regulatory Commission (NRC)
• Occupational Safety and Health Administration (OSHA)

State Laws

• California Environmental Quality Act
• California Global Warming Solutions Act
• California Proposition 65
• Connecticut Transfer Act
• Delaware River Basin Compact
• New Jersey Industrial Site Recovery Act
• New Jersey Spill Compensation and Control Act
• New Jersey Air Pollution Control Act
• Pennsylvania Air Pollution Control Act
• Pennsylvania Clean Streams Law
• Pennsylvania Coal Refuse Disposal and Control Act
• Pennsylvania Dam Safety and Encroachment Act
• Pennsylvania Fish and Boat Code
• Pennsylvania Game and Wildlife Code
• Pennsylvania Land Recycling Act
• Pennsylvania Safe Drinking Water Act
• Pennsylvania Solid Waste Management Act
• Pennsylvania Surface Mining Conservation and Reclamation Act
• Susquehanna River Basin Compact

State Agencies and Regional Entities

• California Energy Commission
• California Environmental Protection Agency (Cal-EPA)
• Delaware River Basin Commission (DRBC)
• New Jersey Department of Environmental Protection (NJDEP)
• Pennsylvania Department of Environmental Protection (PaDEP)
• Western Climate Initiative (WCI)
• Regional Greenhouse Gas Initiative (RGGI)
• Susquehanna River Basin Commission (SRBC)