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  • "A firm that has ingrained the importance of responsiveness in all its staff to provide excellent service. We wouldn't hesitate to consider them for any environmental matter." 

    "The depth of their knowledge of both legal and regulatory requirements and their understanding of our company, are really impressive."
    - Chambers USA

     

     

     

     

     

     

Environment & Energy

About the Environment & Energy Team

McCarter & English has a full-service environmental, health and safety practice, as well a group of attorneys focused on energy industry transactions and issues. The team counsels clients; handles litigation, appeals and regulatory proceedings for regulated businesses; and supports projects, mergers, acquisitions, sales, regulated transactions, divestiture strategies, redevelopment projects and an array of other matters. Our attorneys also specialize in representing the unique interests of rural electric cooperatives, municipal electric and natural gas systems, other energy consumers and state and local consumer advocates.

The environmental team of attorneys is involved in Superfund, NRD, RCRA, Clean Water and Clean Air actions and provide advice on issues ranging from regulatory compliance, disclosure issues and due diligence to the resolution of complex administrative and judicial litigation before federal and state agencies and courts. The firm's environmental experience extends through not only the Northeast and mid-Atlantic regions where its offices are located, but also nationally in diverse matters that have involved every major federal environmental program.

In addition to the group’s core environmental practice, its energy team provides a full range of legal counsel. The firm's practice centers on traditional facets of federal and state regulation affecting the electric, hydroelectric, natural gas and oil utility industries, particularly the regulation of rates, terms and conditions of service of individual utilities and organized energy markets. We counsel our clients with respect to complex energy transactions; asset management; hedging; energy project development and financing; mergers and acquisitions; regulated transactions; divestiture strategies and redevelopment projects; transmission planning and cost allocation; and compliance with tariff, mandatory anti-manipulation and reliability standards. Services include those for the electrical and natural gas industries, including corporate transactional representation; regulatory advice; renewable energy and climate change counseling; renewable energy project financing and development, including solar, wind, biomass and cogeneration; emission reduction and carbon credit transactions. Our attorneys provide guidance with respect to federal agency regulations and reporting requirements, including the Federal Energy Regulatory Commission, Department of Energy, North American Electric Reliability Corporation, United States Department of Agriculture, Commodities Futures Trading Commission, and Securities and Exchange Commission. Our attorneys have appeared before numerous state commissions, agencies and courts throughout the country in approximately 40 states from Maine to California, and in the District of Columbia. And our attorneys represent the interests of our clients before rating agencies, municipal councils, Regional Transmission Organizations and trade associations, and in bilateral and multilateral business transactions.

Our Environment & Energy Practice Group provides support in the following areas:

Environmental Services

• Multi-party “Superfund” litigation, cost recovery cases, transaction or contract-related environmental claims

• Natural Resource Damage Assessments and Natural Resource Damage litigation

• Due diligence evaluations and negotiation of merger, acquisition and divestiture agreements;

• Regulatory compliance counseling on air, water, solid and hazardous waste, toxic substances, lead and asbestos issues, as well as workplace health and safety concerns;

• Compliance with self-audit and disclosure requirements, including the disclosure regime applicable to public companies under the Sarbanes-Oxley Act of 2002;

• Permitting and licensing work before local, state and federal regulatory authorities;

• Representation of developers, power purchasers and financing sources in both fossil based and renewable energy projects, including wind, solar, geothermal and pumped storage facilities located throughout the United States;

• Advice on the remediation, transfer and redevelopment of contaminated properties;

• Evaluation of the use of environmental insurance products for long-term management of existing liabilities as well as future remediation, property damage and personal injury claims;

• Defense of civil and criminal claims, including natural resource damage investigations;

• Prosecution and defense of cost recovery, property damage and toxic tort claims;

• Land use development counseling and litigation, including the siting of new energy and telecommunications facilities and structures including wireless communication towers, transmission lines, and landfills; and

• OSHA compliance.

As an example of the firm's leading role in the emerging national trends in environmental law, we are currently representing several clients in defense of alleged damage to natural resources in New Jersey -- claims that may be the new frontier in a national trend to revisit rivers, estuaries and other resources that were historically impacted by industrial activity.

Energy Services

• Supporting clients on various aspects of photovoltaic and thermal solar projects, including transactions concerning Solar Energy Generating Systems (SEGS) projects;

• Assisting clients with wind sector projects, including the Alta wind project in Mojave, CA;

• Representation of developers, power purchasers and financing sources in both fossil based and renewable energy projects, including wind, solar, geothermal and pumped storage facilities located throughout the United States;

• In coordination with the Firm’s other practice groups, drafting and negotiated power purchase agreements, inter-connection agreements, fuel handling and supply agreements, and various lending and security documents associated with different energy projects;

• Counseling utility holding companies on merger and asset acquisition issues, including a full range of transactional advice;

• Advise on competitive natural gas marketers in administrative litigation with incumbent natural gas utilities;

• Representing clients on permitting and licensing issues before local, state and federal regulatory authorities;

• Advise 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.

Energy and Utilities

McCarter & English provides a full range of legal counsel to its energy and telecommunications clients. Services include transactional representation; regulatory advice; litigation; appeals; and representation before regulatory agencies.

In the dynamic energy industry, our clients 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 such as solar, sometimes using a power purchase agreement with a third-party equity or tax investor. More

Environment & Energy Litigation

The Environmental Practice Group has broad experience in trial and appellate courts, including experience in litigating challenges to “junk science” under Daubert and similar precedents.  We have also appeared before federal, state and local administrative bodies in connection with permitting legally mandated environmental response actions and other enforcement and regulatory matters, including supplemental environmental projects.

Our environmental litigators handle multi-party “Superfund” litigation, cost recovery cases, transaction or contract-related environmental claims, governmental enforcement proceedings and insurance coverage litigation (on behalf of policyholders).  In addition, we represent several Fortune 100 companies in the defense of mass toxic tort claims, either on behalf of individual defendants or as joint common counsel.

We frequently assist our clients in connection with court or agency-supervised privately arranged arbitrations, mediations or other ADR proceedings, including allocation proceedings among multiple PRPs.  We strive to provide our clients with forceful and effective courtroom advocacy, while at the same time recognizing the business focus for our clients, including the need for creative and cost-saving solutions to environmental disputes.

Environmental Regulatory Compliance and Counseling

Environmental impacts are a key consideration in today's business and manufacturing arena, and costly proceedings can result when environmental factors are overlooked. Our lawyers work to develop a sound environmental compliance strategy that avoids or minimizes future environmental liabilities.  Working side-by-side with risk managers, our attorneys provide innovative and cost-effective legal counseling in virtually all areas of environmental law, locally, nationally or internationally.

In responding to specific client needs, our lawyers also address permitting, rulemaking and compliance counseling; mergers, asset acquisitions, and divestitures; real property transactions and Brownfields; Superfund, CT Transfer Act, NJ Spill Act and UST Claims; and solid waste licensure.

We have advised clients on the complex federal, state and local regulatory requirements applicable to marine-based liquefied natural gas terminal projects in the northeast.  We also have experience advising clients on the permitting requirements for major federal undertakings subject to the National Environmental Policy Act, including a western power plant sited on federal lands.

Environment & Energy Transactions

The firm's environmental attorneys assist clients in addressing the difficult environmental issues that frequently arise in complex business transactions.  We advise major industrial corporations, financial institutions and developers in connection with mergers and acquisitions, financings and real estate conveyances, including Brownfields transactions.  Our environmental lawyers are experienced in performing complex due diligence evaluations, assessing environmental contingent liabilities, formulating the environmental terms of merger, acquisition and purchase and sale agreements, obtaining project development permits, and negotiating environmental insurance coverages and covenants not to sue.

We have experience advising energy companies on environmental risk in the transactional context, including proposed acquisitions of natural gas pipeline assets, power plants, electric transmission infrastructure and wireless telecommunications facilities.

We are regularly engaged in matters involving the New Jersey Industrial Site Recovery Act and the Connecticut Transfer Act, as these laws relate to business transactions.  We are also involved with regulatory developments at the federal level and counsel our clients on such emerging requirements as the new "all appropriate inquiry" standard.  In order to assist our clients in achieving all of their business objectives in connection with transactional matters, our environmental lawyers also work with lawyers in the firm's Corporate, Tax, Real Estate and Public Finance practices.

Environmental Insurance Coverage Disputes

The Environmental Practice Group understands the important role that environmental insurance increasingly plays in allocating environmental risk, facilitating liability transfers, ensuring finite cleanup costs, protecting multiple parties and completing the deal, especially when environmentally impacted properties are involved.  Our attorneys negotiate the terms of various types of policies and work with the key insurers, underwriters, brokers and environmental consultants that must coordinate to manage the client's environmental exposure.

Our attorneys have recovered hundreds of millions of dollars for clients' environmental losses, and are actively pursuing hundreds of millions more for policyholders with sites across the country and abroad.  While many of these claims fall within the scope of general liability policies, the Group has successfully prosecuted claims under environmental impairment liability and truckers insurance policies, and also counseled clients concerning Price-Anderson Act "facility forms," and pollution legal liability (PLL), cost-cap and finite risk policies. 

Our attorneys not only have litigated in state and federal courts in many jurisdictions, but have been counsel of record or represented amici curiae in every important New Jersey Supreme Court decision over the last ten years (see, e.g., Owens-Illinois; Pfizer; Carter-Wallace; Quincy Mutual; Spaulding Composites, and Benjamin Moore).  We recently convinced a New Jersey court to apply, over insurers' objection, the allocation law of the waste site in a multi-state, multi-site environmental coverage action.  The court's ruling was the nation's first and most comprehensive allocation choice-of-law decision.

Because the successful resolution of environmental coverage disputes requires keen technical knowledge, our attorneys have substantial industry and regulatory backgrounds.  Scientists and science librarians assist in handling environmental losses of every kind, including those arising from alleged natural resource damages matters, PCBs, contaminated sediments, DNAPLs, abandoned landfills, leaking USTs, radionuclides and other accidental releases of alleged pollutants.

Environmental Infrastructure and Solid Waste Remediation Finance

We have represented the New Jersey Environmental Infrastructure Trust as its sole Bond Counsel since 1988 with respect to the Trust's annual pooled financing program for wastewater treatment projects and drinking water supply projects undertaken by local and regional governmental bodies, state authorities, nonprofit entities and private entities throughout New Jersey.  As Bond Counsel to the Trust, we have experience with the legal and structural complexities of the Trust's financing program, including the environmental issues involved; the full range of financing issues presented by hundreds of borrowers; and the logistical challenges presented by such large and complex pooled financings.  We have served as Bond Counsel in connection with the issuance of approximately fifty series of bonds totaling over $1 billion.  Currently, we are working with the Trust with regard to the development of a specialized financing program for privately sponsored Brownfield projects.

The firm has extensive experience relating to solid waste remediation financings.  The firm served as bond counsel to the New Jersey Economic Development Authority in connection with the issuance of approximately $300 million in Economic Development Revenue Bonds.  These financings consisted of solid waste exempt facility bonds.  The proceeds of the bonds were loaned to a for-profit entity to finance the remediation of approximately 785 acres of real property in the Meadowlands.  This multi-agency effort, involving the New Jersey Economic Development Authority and the New Jersey Meadowlands Commission (formerly known as the Hackensack Meadowlands Development Commission), as well as the New Jersey Department of Environmental Protection, will finance the remediation of this landfill area in a way that takes advantage of the financial benefits of the Brownfields and Contaminated Site Remediation Act.  This remediation project is designed to facilitate over $1 billion of development over a ten-year period and is expected to include the construction of golf courses, a hotel, an office complex, townhouses and related facilities.  

We also served as bond counsel to the NJEDA in connection with its 1998 financing for Glimcher Properties Limited Partnership in connection with the development of a portion of the Jersey Gardens mall in Elizabeth, New Jersey.  This solid waste remediation project, like other projects we have handled, presented a range of complex issues, both environmental and financial, that needed to be resolved in order to ensure the tax-exempt status of the bonds. We continue to counsel NJEDA with respect to potential financings for privately sponsored solid waste remediation projects, particularly with respect to the requirements of the Internal Revenue Code relating to the tax-exempt status of such bonds.

Climate Change & Renewable Energy

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Our attorneys assist clients in developing and understanding industry-specific strategies for mitigating emissions of carbon dioxide, participating in voluntary emerging carbon-trading markets, assessing whether insurance policies cover errors and omissions related to climate change disclosures, building with "green" materials, and siting clean energy facilities. We work with major wind, hydro, and geothermal power developers to quantify and qualify renewable energy credits and greenhouse gas emission reductions, and draft contracts and contractual provisions related to ownership rights and sale of these credits.

Our experienced team draws from the firm’s energy and utilities, environmental, tax, real estate, insurance coverage, litigation, and intellectual property lawyers to address the myriad legal needs of our clients. Members of our team are leading members of American Bar Association committees that focus on climate change and have participated on national and international panels that are educating lawyers in this emerging area of the law.

Please find below some helpful links on Climate Change & Renewable Energy:

California AB 32 law, Sept. 2006

California Climate Action Registry

Carbon Disclosure Project Site

Earth Institute - GROCC statement is non-binding

IPCC Climate Change Report Summary For Policy Makers

Pew Center Climate Change

Summary of Pending Federal Legislation on Climate Change

U.S. Climate Action Group Call to Action

 

Speaking

08/14/14
07/25/14
Advanced Natural Resource Damages Conference - Santa Fe, NM
06/17/14
Recent Developments in Environmental Law: Trends & Tips
The Legal Intelligencer’s In-House and General Counsel CLE Seminar
06/04/14

Publications

6/01/2014
02/19/14
Ira M. Gottlieb, David J. Lender, Weil, Gotshal & Manges LLP, James A. Pardo, McDermott Will & Emery LLP
65th Annual Oil & Gas Law Conference
02/14/14
02/04/14