Environment & Energy Transactions | McCarter & English, LLP

Clients rely on our ability to find practical solutions to help them complete transactions essential to their businesses. We are skilled negotiators who help clients implement deals, craft documents and reduce obstacles and risks that move initiatives and transactions forward.

Environmental Transactions

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Addressing environmental issues early and as an integral part of a transaction can be vital to controlling costs and securing important business outcomes. Our environmental team helps clients understand and manage the challenges that frequently arise in such business transactions. Whether reviewing site assessments, working on due diligence investigations, advising on environmental contingent liabilities, or negotiating environmental indemnities and insurance coverage, we advise a wide range of clients in numerous fields, industries, and markets regarding mergers and acquisitions, sales and purchases of property and assets, financings and real estate conveyances, and complex redevelopment and Brownfields projects.

Energy Development, Finance, and Transactions

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Advancing companies’ growth and long-term energy strategy can require access to financing and skill in negotiating project development and energy procurement contracts. Clients rely on our energy attorneys to cost-effectively deliver on such transactions.

Our group has broad experience in developing power plants from inception to operation—advising our clients throughout the planning, construction, environmental, commercial operation, and retirement phases associated with project ownership. We also help clients acquire ownership interests in generation facilities and secure related operating agreements. We can structure, negotiate, and document the full array of project agreements needed to advance clients’ objectives. These agreements cover projects involving traditional power sources and renewable ones, including solar, wind, hydroelectric, and biomass facilities.

Our energy finance lawyers have helped clients secure financing to move countless energy projects forward or to implement other operating or growth strategies. We help them obtain and comply with financing arrangements, including:

credit facilities for long-term, construction, or interim financing;
short-term asset financing;
syndicated credit facilities; and
general purpose lines of credit.

We have extensive experience serving electric cooperative clients in negotiating financing for acquisitions and loans with the Rural Utilities Service, National Rural Utilities Cooperative Finance Corporation, and CoBank, ACB.

Our energy team helps clients secure energy supply and related agreements and implement transactions supporting their energy strategy.

We are highly skilled in negotiating agreements for the short- and long-term purchase and sale of energy, transportation capacity, and related services critical to delivering, or gaining access to, electric and natural gas supply. We help secure agreements covering electric and natural gas transmission service, interconnections, and arrangements for coordination, transportation, and distribution. We also help clients acquire and sell generation and transmission facilities.

Our natural gas lawyers pioneered structured natural gas prepay agreements for municipal utility systems to save their customers tens of millions of dollars in gas costs. By creating joint action organizations and issuing municipal bonds, these clients prepay for long-term supplies of natural gas at a price below market rates. We have represented gas buyers in more than 30 gas prepayment transactions with total bond issuance amounts of more than $20 billion.

Represented a global manufacturer in the environmental aspects of its acquisition of certain assets of another manufacturer’s industrial campus located in Tennessee. The representation included assisting the client with environmental due diligence, negotiating environmental provisions of the purchase agreement, handling permit transfers, and evaluating and managing environmental contamination at multiple locations.

Served as lead transaction counsel, special gas counsel and commodity swap counsel for our client in a transaction that issued $446,760,000 of the District’s Gas Supply Revenue Bonds to purchase a 30-year supply of natural gas to be delivered to three Alabama gas districts—Clarke-Mobile Counties Gas District, The Marshall County Gas District, and The Southeast Alabama Gas District.

Negotiated new North American Energy Standards Board Base contracts for the purchase and sale of natural gas for an Alabama public utility with five major natural gas marketing companies, significantly expanding the utility’s options for purchasing natural gas for the customers of its municipal natural gas system at the lowest possible price and on the most reliable possible basis.

Represented a Connecticut municipal electric utility since 1987 on a broad range of issues, initially involving the purchase of power from a Federal Energy Regulatory Commission-regulated, investor-owned utility and more recently in matters related to participation in the ISO New England wholesale electric markets. He also has represented this utility in the leasing of municipally owned land to an independent power producer for the development of new generation, including such related matters as a property tax agreement and a Large Generator Interconnection Agreement.

Represented an electric cooperative in negotiating a contract for the purchase of the output of 100 MW of wind turbine capacity from a project under development in Colorado.

Served as gas counsel to The Southeast Alabama Gas Supply District concerning a 30-year natural gas prepayment transaction funded by our client’s issuance of $970 million in tax-exempt municipal bonds. The transaction produced substantial natural gas commodity price savings for municipal natural gas systems in Alabama, Louisiana, Tennessee, Mississippi, and Virginia and will save the natural gas consumer millions in the first six years.

Represented The Tennessee Energy Acquisition Corporation as General Counsel in acquiring a 30-year supply of natural gas financed through the issuance of $516 million in tax-exempt bonds that will save more than $40 million to its customers over the life of the prepaid supply agreement.

Represented an electric cooperative in negotiating a contract for the purchase of output of 30 MW of solar generation capacity from a project under development in Colorado.

Represented the off-take purchaser from a 12-MW, wood-fueled biomass facility in Colorado in the negotiation of a long-term power purchase agreement.

Represented an electric cooperative in the development and ownership of a 936-MW generation facility in Texas, consisting of one 480-MW, combined-cycle generating unit and three simple-cycle generating units with an aggregate capacity of 456 MWs. The legal work included contracts for fuel procurement and transportation of natural gas, transmission interconnections, major equipment purchasing, construction, off-take purchases, financing, and insurance.

Represented the municipal minority owner of a 520-MW, gas-fueled, combined-cycle generating facility near Las Vegas, Nevada, in negotiating joint ownership project documents.

Serve as special counsel to CHEFA since 2006, advising on environmental issues related to bond issuances supporting the construction or renovation of hospitals and private schools.

Represented the owner and developer of a 168-MW, quick-start generating facility near Lubbock, Texas, consisting of 18 natural gas-fueled reciprocating engine generators in matters related to fuel procurement and transportation, transmission interconnection, major equipment purchasing and construction contracting, off-take purchaser contracting, financing, and insurance.

Obtained for this developer the federal Army Corps of Engineers, state water quality certification, and local inland wetlands permits for the approval of a lifestyle center, part of a 1.2-million-square-foot development on 240 acres of land owned by Evergreen Walk in the Town of South Windsor, Connecticut.

Serve as environmental counsel to three major regional and national financial institutions and work to protect these clients from environmental exposure while making loans, acquiring portfolios, or foreclosing on non-performing loans.

Advising the owner and developer of a proposed pumped storage project on selected legal issues arising in development efforts, including potential treatment as transmission under Federal Energy Regulatory policy and precedent.

Negotiate and draft solar purchase agreements in Texas, Virginia, and Mississippi.

Represented a G&T electric cooperative in converting from a mortgage form of security agreement to an indenture.

Negotiated and drafted Asset Purchase Agreement and other related agreements on behalf of a prospective owner of a first-of-a-kind Integrated Gasification Combined Cycle Project and handled follow-up negotiations related to delays and cost overruns.

Negotiated and drafted joint ownership agreements related to a 665-MW coal-fired plant in Arkansas.

Negotiated and drafted operating agreements related to a 50-MW biomass project in Texas.

Negotiated and drafted off-take agreements for 200 MWs of wind generated at projects in Oklahoma.

Negotiate and draft full- and partial-requirements contracts with numerous investor-owned utilities, including, but not limited to, AEP, Entergy, and Southern Company. Assist in annual true ups of charges under certain of these contracts.

Negotiated agreements related to the development and construction of a 550-MW combined cycle gas-fired generating plant in Texas on behalf of minority owners.

Negotiated for an electric cooperative in Virginia EEI Master Agreements with multiple counterparties for purchasing energy or capacity to supply their customers or hedge pricing of their power supply arrangements.

Negotiate for nonprofit utilities ISDA Master Agreements with multiple counterparties, including as appropriate, the Power Annex, Gas Annex, Credit Support Annex, and Master Netting Agreement. We negotiate the transaction confirmations for the purpose of purchasing power (and incorporating the appropriate product, including RTO-specific products), hedging gas supplies, implementing transactions under energy management arrangements for facilities or utility systems, and arranging the interest rate swap for a financial deal.

Represented an electric cooperative in connection with the merger of three rural electric cooperatives, including handling merger agreements, renegotiating credit agreements, regulatory approvals, and the renegotiation of power supply agreements.

Create partnership arrangements for the development of new transmission projects.

Represented an electric cooperative in FERC litigation regarding the allocation of System Security Resource costs in the MISO footprint.

Represented an owner in matters related to the acquisition of development rights and the development of a 78-MW wind facility near Amarillo, Texas, including handling transmission interconnection, off-take purchaser contracting, financing and insurance matters.

Negotiate ISDA Master Agreements and Confirmations for hedging swaps and gas forwards for municipal utilities as standalone arrangements and as part of prepaid gas deals.

Assisting a manufacturer in negotiating a construction contract with a developer for rooftop solar on its large commercial buildings.

Represented a major Japanese specialty glass manufacturer as special environmental counsel in acquiring a fluoropolymer manufacturing business with facilities in Bayonne, New Jersey; Thorndale, Pennsylvania; and Great Britain.

Represented an international chemical processing company in the phased sale of its former fluoropolymer manufacturing facility for redevelopment. The first phase involved the sale of a heavily contaminated portion of the property, which had historically been used as a large petroleum storage facility, for re-use as a retail shopping center. The second phase involved the sale of a formerly active portion of the company’s manufacturing plant for warehouse use by a specialty foods company.

Advised a wire and cable manufacturer on the environmental aspects of its purchase of businesses in Canada, New York, New Jersey, Florida, and Ohio. Continues to advise the company on post-acquisition environmental remediation and compliance work.

Represented a real estate investment trust in its acquisition and redevelopment—with its joint venture partner—of a former ship demolition and salvaging facility bordering the Delaware River. The representation included conducting an environmental due diligence investigation; evaluating site remediation status; and counseling regarding brownfield redevelopment, remediation reimbursement, and available brownfield grant and loan options.

Represent a pool parts manufacturer concerning the environmental aspects of numerous transactional matters throughout the United States and abroad. These matters have included acquisitions of pool and spa equipment manufacturers, a circulation systems manufacturer and automatic pool chemical distribution software company, the divestiture of a former manufacturing plant in California, and the leasing of a new corporate headquarters. The representation also has included counseling with respect to remediation and redevelopment of legacy manufacturing facilities in New Jersey.

Counseled a leading petroleum refiner and marketer in the acquisition of a petroleum refinery in the State of New Jersey.

Represented the purchaser of a landfill and rail transfer station in the southeastern United States on a complex transaction involving contested permits, environmental justice issues, multiple financing arrangements, and more.

Conducting an investigation of anonymous allegations regarding environmental compliance at an international specialty chemical manufacturer’s West Virginia plant.

Represent a leading real estate development company with respect to all environmental matters arising from the acquisition and subsequent redevelopment of a 250-acre former chemical manufacturing site. Our work at this brownfield site, which now boasts five new state-of–the-art industrial logistics buildings, has included handling environmental due diligence review and negotiation of environmental terms of sale and site remediation compliance issues arising from the post-acquisition subdivision and redevelopment of this former industrial tract. We also have reviewed and drafted terms for new environmental insurance coverage and for the assignment of, or rights under, certain existing environmental insurance policies.

Advise a home construction company on environmental issues concerning the acquisition of portions of a former industrial plant in New York for development of residential housing.

Assisted The Tennessee Energy Acquisition Corporation in acquiring a 30-year supply of natural gas financed through the issuance of $516 million in tax-exempt bonds that will save more than $40 million to its customers over the life of the prepaid supply agreement.

Represented a municipal utility in the acquisition of an 80 MW, natural gas-fired generating facility as part of a comprehensive overhaul of the client’s capacity supply portfolio on integration into an organized regional market.

Represented Patriots Energy regarding a publicly financed, 42-mile high-pressure intrastate natural gas pipeline. We also serve as general counsel to Patriots Energy.

Assisted a Florida city utility in negotiating agreements for natural gas transportation service involving the construction of a new intrastate gas pipeline, an interconnection to a new pipeline, and access to service on an upstream interstate pipeline.

Assisted an electric cooperative in negotiating and drafting of a 100MW solar power purchase agreement.

Assisted an electric cooperative in negotiating and drafting a 100MW wind power purchase agreement.

Assisting an electric cooperative with the negotiation and conversion to a Rural Utilities Service indenture.

Assisted in the negotiation and development of the approximately $1 billion public/private DC PLUG distribution facility undergrounding initiative, which included the use of securitized financing, subsequent legislative amendments, and the ongoing implementation of the program.

Negotiated and drafted a 5MW solar power purchase agreement for an electric cooperative.

Advised a financial holding company regarding the environmental regulatory issues associated with the Pennsylvania assets of a wind energy products manufacturer in connection with a financing.We provided environmental advice and due diligence related to this lender debt offering of the Pennsylvania assets.

Represents a major urban educational institution concerning multiple environmental matters, including addressing site remediation and permitting and providing environmental-related development and transactional support.

Advises a national real estate investment corporation regarding environmental issues in potential acquisitions and investment opportunities; assists in evaluating and managing associated risks and negotiating documentation.

Represents a major Massachusetts transit authority concerning environmental compliance and land use matters. Significant examples have included (i) negotiating with environmental regulatory agencies regarding alleged violations, including resolutions via negotiated consent agreements; (ii) coordinating with real estate attorneys to represent the transit authority in a major air-rights/terra firma development project located in a highly desirable area of Boston; and (iii) representing the client in environmental matters alleged by abutters to client-owned properties throughout Massachusetts.

Assisted a consortium of major colleges and universities in Massachusetts to locate, permit, develop, and operate a state-of-the-art high performance data center in western Massachusetts.

Assisted a Florida power generator in negotiating natural gas transportation and gas supply agreements to support the development of a new gas-fired power plant, including agreements involving the construction of a new intrastate pipeline lateral and upstream capacity expansions on interstate pipelines.

Serve as Special Gas Counsel to the Public Energy Authority of Kentucky (PEAK) since its inception in 1998. Negotiate municipal bond-financed, prepaid long-term natural gas supply purchases. Between 2018 and 2019, PEAK issued more than $2.2 billion in municipal bonds to prepay such purchase agreements. The client sells such gas to its members and more than two dozen municipalities at below market prices; their ratepayers will save millions in gas cost over the next 5-6 years

Represented a mining company in redeveloping a former metals refining facility in New Jersey into industrial space and the sale of the company’s joint venture interest in a portion of the redeveloped complex.

Negotiated and drafted a 220MW virtual wind power purchase agreement for a corporate entity.

Assisted a municipality with drafting a renewable power purchase agreement involving small power production hydroelectric facilities.

Helped a municipality draft and negotiate multiple Edison Electric Institute Master Agreements and confirmations to facilitate block power purchases.

Assisted a power production company in negotiating and drafting an Engineering, Procurement, and Construction Contract for a 560MW combined-cycle generation facility.

Assisted an electric cooperative with the prepayment of an existing Rural Utilities Service debt and the negotiation and drafting of a take-out loan agreement and security documents.

Assisted electric cooperatives with a merger or consolidation of generation and transmission cooperatives.

Represented a California biotech company in acquiring the stock of a resins manufacturing company with facilities in Linden, New Jersey. Our subsequent representation of this biotech company included the divestiture of the resins manufacturing business to a major chemical company and the handling of ISRA proceedings related to the Linden facilities.

Assists a self-storage company in its acquisition of properties throughout the country. We conduct environmental due diligence and negotiate environmental issues in the transaction documents.

Represented a bulk liquid storage company in acquiring a co-generation facility and in negotiating a related lease termination and steam power agreement termination near one of the company sites.

Negotiate EEI Master Agreements (including Schedule M) for nonprofit electric cooperatives with multiple counterparties for purchasing energy or capacity to supply their customers (and incorporating the appropriate product, including RTO-specific products) or hedging the pricing on their power supply arrangements.

Represent a solar energy company in acquiring or leasing project sites for the installation and operation of solar photovoltaic facilities. We recently negotiated the lease of a current Superfund site from the municipal owner and secured an agreement with the parties responsible for remediating that site to install and operate a solar facility on the site as a form of beneficial reuse.

Closed successfully a merger of two generation and transmission (G&T) electric cooperatives into a third G&T cooperative under Texas law, performing the due diligence and drafting the merger instruments and governance documents for the surviving entity having G&T cooperative and distribution cooperative members.

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