McCarter & English provides a full range of legal counsel to its energy, public utilities and telecommunications clients with a significant focus on renewable energy projects. Services include corporate transactional representation; regulatory advice; mass tort and general business litigation; climate change and renewable energy counseling; renewable energy project financing and development, including solar, wind and cogeneration; emission reduction and carbon credit transactions; support services such as environmental, employment, tax and employee benefits; and intellectual property matters for natural gas, electric, water and telecommunications companies.
Individual state regulations affecting regulated industries can vary widely in the northeast. While some states are furthering deregulation and "decoupling rates," others are re-regulating and restructuring. Leading legislation such as the American Recovery and Reinvestment Act of 2009 (the federal stimulus bill), Massachusetts Green Communities Act and Connecticut's Electricity and Energy Efficiency Act are creating new opportunities even in this challenging economy, and our Climate Change & Renewable Energy Group of lawyers are leading the way. In this dynamic environment, clients may: operate fossil or nuclear power plants; transmit and deliver energy through local electric, natural gas or water distribution utilities; or engage in competitive retail sales of electricity and natural gas. Manufacturers and other large commercial customers of utilities are finding that for cost or reliability reasons, prudent risk management requires inside the fence development of distribution facilities like cogeneration or sustainable facilities like solar, sometimes using a power purchase agreement with a third party equity or tax investor.
McCarter & English represents such diverse interests before the Federal Energy Regulatory Commission, public utility commissions and facility siting boards and supports project development, merger, acquisition, divestiture and other transactional strategies. It provides advice on issues such as compliance, licensing, restructuring, disclosure and due diligence, and litigates before federal and state agencies and courts. The firm's attorneys have counseled investor-owned and municipal utilities through state regulatory review proceedings, facilitated electric and natural gas licensing, advised on contracts, counseled on watershed issues and advised major manufacturers on cogeneration and energy/utility contract matters.
On behalf of its energy and utilities clients, McCarter & English:
- Counsels utility holding companies on merger and asset acquisition issues, including a full range of transactional advice;
- Advises competitive natural gas marketers in administrative litigation with incumbent natural gas utilities;
- Represents clients on permitting and licensing issues before local, state and federal regulatory authorities;
- Advises on compliance with self-audit and disclosure requirements, including the disclosure regime applicable to public companies post enactment of the Sarbanes-Oxley Act of 2002;
- Performs due diligence evaluations of energy regulatory issues in the negotiation of merger, acquisition and divestiture agreements;
- Provides facility siting advice and secures regulatory approvals on a range of projects including undersea electric transmission cables, marine liquefied natural gas import terminal facilities, fossil-fueled power plants and wireless telecommunications towers;
- Assists competitive market participants in connection with auctions for standard offer generation services;
- Defends water utilities, power plant operators and owners of resource recovery facilities against civil and criminal claims including radiation injury claims, labor and employment litigation, and environmental enforcement proceedings.
Specifically, the firm has recently:
- Represented an energy industry aggregator on natural gas and electric licensing matters in multiple states;
- Acted as bond and securities counsel to facilitate utilities' access to public and private capital markets and tax-exempt financings, including underwriters' counsel for offerings by Elizabethtown Water Company;
- Counseled investment bankers with substantial energy infrastructure holdings in connection with project acquisitions;
- Advised private clients developing power plants with government entities, on matters including power purchase arrangements, management contracts and hedging transactions.
McCarter & English currently defends more than 80% of the U.S. commercial nuclear industry against radiation injury claims. Its attorneys have appeared before federal, state and local administrative bodies regarding contested case proceedings, enforcement actions and regulatory matters. The firm represents several investor-owned electric utilities, defending against mass toxic tort claims including asbestos, radiation, PCBs and MTBE. It is also experienced in litigating major property tax appeals involving watershed and water utility property and nuclear power plants.
The firm frequently assists clients in court or agency-supervised privately arranged arbitrations, mediations or other ADR proceedings. Its lawyers strive to provide clients with forceful and effective courtroom advocacy while recognizing clients' business objectives, and develop creative, cost-saving solutions to energy and utility disputes.
REGULATORY ADVICE AND COUNSELING
Industry deregulation and restructuring have created many new challenges for energy and utility companies and the major manufacturers who enter into transactions with them. State legislatures and regulators have required incumbent utilities to divest themselves of energy assets such as power plants that have led to contractual and regulatory issues. New market participants emerge with regulatory and licensing issues, and need sophisticated energy counsel to guide them through these inevitable administrative challenges.
Energy impacts are key in today's business and manufacturing arena, and manufacturers are among those to have found that aggressive energy policies and investments in energy infrastructure "inside the fence" of manufacturing facilities can add substantially to companies' balance sheets or enhance reliability for critical operations.
In responding to specific client needs, McCarter & English also addresses energy facility permitting; counsels on rulemaking, compliance, mergers, asset acquisitions and divestitures; and facilitates real property transactions. The firm has counseled water utilities on compliance with requirements for reporting water supply contaminants and providing notice to customers and users. It has also advised clients on the complex federal, state and local regulatory requirements applicable to marine-based liquefied natural gas terminal projects in the Northeast. The firm's attorneys have advised clients, including a western power plant sited on federal lands, on the permitting requirements for major federal energy undertakings subject to the National Environmental Policy Act, and the acquisitions of distressed energy assets from bankrupt merchant power plant operators.
McCarter & English assists energy and utility clients in addressing the difficult regulatory issues that frequently arise from complex business transactions. The firm advises major industrial corporations, financial institutions and developers in mergers and acquisitions, financings and real estate conveyances, including energy projects on brownfields.
Its lawyers are experienced in performing due diligence evaluations; assessing energy regulatory risk; formulating the energy-related terms of merger, acquisition, purchase and sale agreements; obtaining project development permits; and reviewing energy-related disclosures in publicly-held companies' filings with the Securities and Exchange Commission.
The firm serves as bond counsel to the New Jersey Environmental Infrastructure Trust, which provides loans to a variety of borrowers, including private water companies, for the purpose of financing infrastructure improvements. Its attorneys advise energy companies on environmental risk in transactions, including proposed acquisitions of natural gas pipeline assets, power plants, electric transmission infrastructure and wireless telecommunications facilities.
The group has substantial experience applying the New Jersey Industrial Site Recovery Act and the Connecticut Transfer Act to energy clients' transactions. To ensure that clients achieve all of their business objectives in energy transactional matters, the group's attorneys also leverage the experience and skills of the firm's Corporate, Construction, Tax & Employee Benefits, Real Estate, Environmental, Labor/Employment and Public Finance practices.