Energy

Purchasing or selling an energy facility is one of the most significant transactions in an energy company's life cycle. Our deep experience assisting energy clients in the acquisition of facilities is well recognized in the industry. We have successfully counseled clients on the acquisition and divestiture of numerous types of facilities, including wind, solar, nuclear, and other power-generating facilities, metering infrastructure, automated meter reading (AMR) facilities, sophisticated computer information systems for billing and customer information, and coal unit trains. Our attorneys also assist clients in the design and development of leases and purchase options associated with various types of facility commitments.

We have played significant roles in several transactions involving the merger of energy industry companies. Our team has substantive experience in relevant areas of law that add value at every stage of such transactions — including large-scale “bet the company” deals. In addition to providing legal advice on these transactions, we add value by counseling you extensively on business matters, including identifying and evaluating acquisition candidates, maximizing value when selling, and minimizing risks when buying. We regularly represent public and private companies, private equity and venture capital funds, investment banks, and others in complex transactions.

Energy projects often involve complex, highly structured, limited-recourse financings or comprehensive restructurings. Our attorneys represent lenders, developers, investors, and other parties in limited-recourse financings at various stages of the development or acquisition of fossil fuel, hydroelectric, wind, and waste-to-energy projects, including cogeneration facilities and the repowering or expansion of existing projects. We also have represented investors, owners, underwriters, and other parties within the energy industry in breakthrough asset securitizations, corporate finance transactions, tax-exempt bond financings, various equipment and facility lease transactions, bankruptcies, and financial restructurings. We have particular experience with structured tax equity financings for renewable energy projects involving production tax credits, investment tax credits, and U.S. Department of the Treasury (U.S. Treasury) grant programs. Our attorneys also are very active in financing power plants for tax-exempt and other public utilities involving pre-pay power purchase agreements and related bond financings.

The availability of federal and state tax and other governmental incentives may impact whether your new energy project makes commercial sense. We are recognized as a leader in advising both developers and tax equity investors in structuring energy transactions to maximize the benefits available to the parties through the use of sale-leasebacks, "flip" partnerships, inverted leases, joint ventures, carried interests, and other planning tools. Our Energy attorneys have extensive experience in qualifying non-traditional energy projects for the popular U.S. Treasury Section 1603 cash grant program and maximizing grant eligibility.

In addition to our transactional tax experience, our attorneys assist with tax issues that may arise during the course of your energy company’s business operations. We are experienced in representing energy companies and achieving successful outcomes in local tax disputes, including sales and use tax audits and property tax assessments.

The experience and the communications network of our Energy Industry Team can help keep your projects in compliance with governmental requirements and in balance with the public's expectations. We have a long history of representing utilities and energy companies in the federal, state, and local regulatory aspects of the energy business. Our extensive familiarity with the industry positions us to tackle complex energy matters by communicating effectively with industry experts, regulators such as the Federal Energy Regulatory Commission (FERC), the Department of Energy (DOE), the courts, and the public, and to develop practical approaches to achieving your business objectives. Specifically:

FERC: We represent electric, natural gas, and hydroelectric clients in a variety of matters at FERC and the DOE, and in appeals from FERC decisions. Our attorneys have been at the forefront of the new independent system operation (ISO) markets; have addressed natural gas pipeline operations and distributors in traditional rate, tariff, certificate, and abandonment proceedings under Section 4 and 7 of the Natural Gas Act and FERC’s Order Nos. 636 and 637; and provide counsel to owners and operators of hydroelectric generating facilities throughout Wisconsin and Michigan’s Upper Peninsula.

Environmental Regulation: We have the experience in environmental permitting and federal, state, and local compliance necessary to facilitate the construction and continued operation of a range of energy industry facilities. We also have experience in contaminated site clean-ups for manufactured gas sites, as well as the brownfields redevelopment of contaminated sites. Foley attorneys routinely provide counsel on air emission credit trading to facilitate continued, expanded, or new plant operations. We also have experience in securing various site approvals and monitoring federal, state, and local environmental compliance associated with the siting of new energy industry facilities.

Public Policy and Government Relations: The Public Policy practitioners and attorneys on our Energy Industry Team provide a full range of services to help you achieve your legislative and public policy goals in and before every branch of government — from the U.S. Congress to the state legislature to local administrative and regulatory bodies. We provide counsel and representation to ensure that you are in full compliance with federal, state, and local laws governing campaign contributions, lobbying, public ethics, and related regulations.

Government and Public Finance: Long recognized as a leading provider of legal opinions in all sectors of the municipal and public finance markets, Foley can provide financial advantages in your efforts to achieve environmental compliance, brownfields development, or partnerships with private and public entities to pursue desirable energy outcomes.

Siting and Permitting: Our attorneys are well versed in the political, social, and environmental factors that surround site selection, certification, and permitting of new transmission and generation facilities. We advocate a flexible, realistic approach that combines a thorough understanding of technical and timeline requirements, legal constraints and opportunities, public sensitivities, and political realities. We are skilled at communicating with the public and working with regulators, technical professionals, expert witnesses, consultants, and parties who may oppose the project.

While we work closely with our clients to attempt to avoid and resolve disagreements, investigations and litigation are sometimes inevitable. The litigators on our Energy Industry Team are well versed and well respected in the energy industry and its related areas, and will work to represent your interests as conflicts arise. We address a wide range of litigation needs relating to hydroelectric dam failures, stray voltage, eminent domain, antitrust compliance, market power review, infrastructure acquisition, business reorganization, creditors’ rights, white collar defense, and corporate compliance.

As global demand for natural resources increases, companies with interests in developing natural resources face significant challenges in the current business and political climate. Federal and state regulators must balance the need to develop land and resources with increased public demand for conservation and sustainable business practices. We provide a full range of legal and business services to help companies in the natural resources industry, both renewable and extractive. We also help companies whose interests are affected by federal and state environmental regulations applicable to the extractive industries, as well as project permitting at both greenfield and existing mining or energy industry locations.

We represent operators, lessees, and claimants regarding development and operations issues involving coal, oil and gas, hardrock and non-energy minerals, and related rights and property on private lands throughout the country. We have considerable experience with natural resource and renewable energy operations occurring on federal and Native American lands, including supervision of federal and Indian oil, gas, and coal lease operations by the Bureau of Land Management (BLM); federal royalty collection on federal and Indian leases, and the U.S. Department of the Interior management of offshore outer continental shelf (OCS) operations; the Office of Surface Mining’s regulation of coal mining; and the BLM and U.S. Forest Service regulation of hardrock mining operations.

Along with property rights, acquisition, and permitting experience, we have a strong group of EPA lawyers with experience in air, water, Resource Conservation and Recovery Act (RCRA), and related permitting and enforcement for both greenfield and existing site operations. We counsel and handle litigation challenging and defending agency permitting actions, as well as administrative cases at the U.S. Department of the Interior, the EPA, and FERC. We also work on strategy and participation in development of rules and legislation pertaining to the federal regulation of natural resources affecting our clients.

Green energy technologies embrace a diverse range of products, services, and processes such as biofuel, wind, batteries, and smart grid, which enable clean or alternative energy production and/or conservation by providing superior long-term performance and efficiency. Our Green Energy Technologies attorneys offer legal services to help you protect your technology while leveraging it to your advantage in the growing cleantech sector.

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Foley has long been recognized as a leader in the U.S. wind industry, helping companies with wind projects since 1989, when our attorneys acted as lead counsel to a group of lenders involved in the structuring, document negotiation, and financing of complex onshore wind energy projects in Southern California. In addition, in 2003 we were one of the first law firms to be engaged by a developer on a major offshore wind project, representing a finalist for more than three years in the Long Island Power Authority’s Request for Proposals for power supply from an offshore wind park.

Since working on these original wind energy financings, our Wind Energy attorneys continue to be very active within the industry, helping both onshore and offshore wind energy clients with the changing issues they face in securing financing, obtaining regulatory approval, facility siting, and operational issues. If you are a lender, equity investor, or financial intermediary, we have developed innovative financing structures, including flip partnerships, an equity financing structure that has been widely used for wind energy projects. Our distinct emphasis, however, remains on developers and active acquirers of wind energy projects.

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If you are pursuing a solar energy project, you can count on our significant experience in representing solar thermal and photovoltaic developers and investors in many U.S. projects and applications. We have extensive experience as lead outside counsel for acquisitions, development, construction, and financings of all types of solar energy projects. Our team has represented numerous developers and investors in, and has closed multiple financings and acquisitions of, solar energy development projects from California to Massachusetts and Texas to Ontario. Foley is a leading firm in the solar energy space, with experience that includes hundreds of energy transactions involving document preparation and negotiation, due diligence, data rooms, budgets and project management, tax advice, and other matters.

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Our attorneys have the depth and breadth of experience to serve the needs of your business in the biofules/bioenergy, geothermal, and hydroelectric sectors. From permitting, to financing, to compliance — we add value and bring insight to helping you achieve your goals.

Biofuels/Bioenergy: As biodiesel and ethanol production expands, Foley's Energy attorneys are well positioned to help you with matters such as facility siting, air permitting, water supply, and discharge permitting; all aspects of project financing, mergers, and acquisitions; intellectual property issues, including licensing, trademark, and patent protection; government procurement and contracting; and labor and employment issues, including union representation matters. We represent developers, feed-stock suppliers, lenders, investors, agricultural cooperatives, offtakers, and producers in connection with biofuel production plants.

Geothermal: Recent years have seen renewed interest in geothermal energy development, and the western United States holds many potential geothermal resources. If you are an energy company or developer seeking to bring geothermal resources online, you will likely face many of the same challenges encountered by our clients in other renewable energy sectors. In addition, there are other challenges that are unique to geothermal energy that our Energy Industry Team is well positioned to effectively and efficiently handle.

Due to our significant experience, our attorneys are able to add value in every phase of geothermal energy development, from securing land and water rights, understanding vital permitting and licensing issues, financing the project to construction of the project, and sale of the energy generated, to operation and management issues. Our team has represented numerous developers and investors in, and has closed multiple financings and acquisitions of, renewable energy development projects. Foley is a leading firm in the renewable energy space, with experience that includes hundreds of energy transactions involving document preparation and negotiation, due diligence, data rooms, budgets and project management, tax advice, and other matters. Our extensive work in the renewable energy industry gives us an in-depth understanding of the rapidly evolving business and legal issues facing developers, equity investors, utilities, contractors, and financing parties in the geothermal energy sector.

Hydroelectric: Our experience in the hydroelectric sector of the energy industry includes representing developers, purchasers, sellers, investors, and lenders with regulatory and environmental compliance, permitting, dam failure and dam safety, clean up, due diligence, mergers and acquisitions, insurance coverage, and litigation, such as hydroelectric relicensing, compliance, and land disputes, before administrative bodies and state and federal courts.

Our Energy attorneys have experience in the project financing of hydroelectric facilities, including acquisitions and non-recourse project financing of hydroelectric generating assets of electric services companies, and representation of independent power producer (IPP) bidders in the auction of hydroelectric generating facilities.