ALTERNATIVE ENERGY AND EMERGING TECHNOLOGIES: DESCRIPTION

The substantial legal, regulatory, and economic challenges that arise today in the alternative energy field impact the environment, capital markets, traditional ratemaking, cost-effectiveness, and capital infrastructure.

McKenna, Long & Aldridge LLP attorneys in the Alternative Energy & Emerging Technologies Practice Group help clients navigate the intricacies associated with alternative energy sources and development, including biomass, wind, tides and waves, solar, fuel cells, geothermal, solid waste, and coal gasification technologies.

MLA’s Alternative Energy & Emerging Technologies practice is comprised of lawyers and professionals with expertise in environment, energy, real estate, finance, government affairs, and government contracts. Our regional, national, and international experience positions us to support virtually every alternative and renewable fuel endeavor including:

• Wind
• Clean Coal
• Fuel Cells
• Biomass
• Solar

MLA is at the forefront of these expanding segments of the energy industry, navigating successfully through the related policy and regulatory issues. In addition, our relationships with venture capital firms, investment banks, and other investors provide alternative energy companies with access to leading sources of capital. Our public policy professionals have experience at the highest levels of local, state, and federal government and offer clients in-depth knowledge and skilled advocacy that shapes regulatory compliance strategies and energy policies. Added to these strengths is our deep understanding of how the energy industry operates and our practical insight that helps clients achieve their business objectives.

Our Alternative Energy & Emerging Technology team consists of more than 30 core professionals with experience and a comprehensive understanding of energy policy -- both of which are essential to helping our clients succeed. This cross-disciplinary team boasts experience in the following core areas:

• Greenhouse gas emissions reductions
• Green energy project development
• Environmental assessment and impact
• Energy regulation and contracts
• Federal and state legislation and regulation
• Tax credits, grants, and other federal and state incentives
• Litigation and arbitration
• Government contracts
• Project finance and venture capital
• Intellectual property
• Project engineering, construction, and procurement
• Land use and zoning
• Real estate
• Facility site selection and permitting

Our alternative energy and emerging technology practice is supplemented by attorneys with experience in related subject matter, including: 

Facility Siting and Crisis Management

The siting of energy facilities frequently requires the development of an early proactive multi-component strategy to obtain agreement among stakeholders such as non-governmental organizations, Native Americans, the scientific community, local ad hoc opposition groups, the financial community, and on occasion multilateral development banks and venture capital firms. From time to time, project development may be opposed on short notice by media-oriented groups. On such occasions, we work in a crisis management team with clients to counter and defuse such opposition.

Energy

MLA attorneys counsel clients in all sectors of the energy industry: electric and gas utility services, independent power production, power and energy services, marketing and national trade associations, as well as major energy consumers. We help clients find their way through the tangle of today’s complex legal and regulatory environment, assisting them with sophisticated business, contractual, financing and regulatory issues.

Real Estate

We routinely assist clients in all aspects of the development process, from due diligence and land acquisition through financing, development, leasing and disposition, particularly in the development of energy plants and associated facilities. Through longstanding associations, our firm enjoys cooperative working relationships with local and state governmental authorities, which has helped MLA to establish a solid foundation of credibility and trust in the course of advancing our clients’ interests.

Environmental

Investment in real estate requires a comprehensive understanding of the impact of environmental matters. Alternative energy projects are no exception. Our environmental attorneys have decades of experience in handling matters ranging from review of environmental audits to complex Superfund cleanup and litigation. We assist clients in preventing and resolving compliance problems at both the facility and corporate levels in all areas of federal, state, and local law.

Tax

Our tax attorneys provide comprehensive services in all areas of international, federal, and state taxation. MLA has experience addressing the tax ramifications of specific business transactions, particularly involving alternative energy facilities. Our tax attorneys handle tax matters that arise in the ordinary course of business such as the treatment of inventories, inter-company pricing issues, and the deductibility or capitalization of expenditures. We also represent clients before the Internal Revenue Service, state enforcement agencies, and the courts. MLA’s tax practice has been involved in many of the specific projects described here.

Corporate

The firm counsels clients in all stages of development of an alternative energy facility, including the many contractual relationships necessary to support the facility and its corporate structure. We assist clients in developing agreements with contractors and subcontractors, state and local governments, private owners and developers, engineers, architects, financial institutions, suppliers, and customers. MLA attorneys have drafted and negotiated agreements specific to the alternative energy field, such as biofuel feedstock and offtake marketing agreements.

Finance

MLA attorneys have helped clients provide prospective lenders with proxies for more readily financeable agreements, including detailed market and engineering analyses. We counsel owners, developers, operators, and lending institutions in connection with equity and debt financing and financial service and credit support agreements. We also help clients to secure financing through venture capital, private equity, and hedge funds and have the wide-ranging construction lending experience required to appropriately manage alternative energy projects.

Government Affairs

Increasingly sophisticated approaches are required to achieve client objectives in today’s complex alternative energy environment. MLA’s government affairs practice provides effective solutions and creates opportunities for clients seeking to impact government policy and decision-making or engage in business with governments on the federal, national, state, local, and international levels. Many of the attorneys and policy experts who practice in this area have held senior positions in the executive and legislative branches of federal, state, and local government.

Our Experience

Wind & Solar

McKenna Long & Aldridge counsels clients who are involved in wind and solar energy development. We counsel clients on contracting, permitting, financing, and regulatory issues and are involved with all phases of project development. We also have significant international and domestic experience defusing and resolving complex multi-party disputes between companies, governments, international financial institutions, and non-governmental organizations.

MLA’s wind and solar projects include:

• The licensing and construction of a 320-420 megawatt facility of 130 wind turbines to be sited in Nantucket Sound off of Cape Cod ( Cape  Wind). The highly visible and controversial proposal has cleared some state and federal hurdles and is now awaiting NEPA review by the Federal Minerals Management Service.
• Obtaining state and local approvals for a 300 megawatt facility of up to 120 wind turbines to be sited in New York.
• Obtained FERC approvals for a wind power generation project in Wisconsin on behalf of the developer.
• Helping a solar company secure funding from the U.S. Department of Energy for the Loan Guarantee Program for which they have already applied. Additionally, setting up meeting with entire state delegation, U.S. Senators, Members of Congress, and the Governor’s office.

Biofuels

State and federal incentives, requirements for the use of renewable fuel, and increasing interest in cleaner combustion technology have spurred rapid growth in biofuel production. We serve as project, environmental, tax, and finance counsel for biodiesel and ethanol developers and have assisted clients in securing government assistance for projects. We secure the necessary approvals, negotiate project agreements (including construction, feedstock, and sales), prepare finance documents, and assist in obtaining tax and other incentives for the project. These projects pose special challenges for closing financing due to the general lack of long-term fixed price contracts in today’s market. We assist in providing the assurances that lenders need before they commit finances to the project.

MLA’s biofuels projects include:

• Working with non-partisan policy groups to gain acceptance of a Clean Air Act mobile source air toxics regulation that would lower the “aromatic” content of gasoline and replace it with biofuels, primarily ethanol.
• Development and $75 million financing of 30 million gallon per year biodiesel production facility in Mississippi in which we also provided counseling on project documents and enabled client to obtain certificates.
• Advised client on the development of biofuel facility in Thailand and counseled client on a manure-to-energy project in Texas.

Clean Coal

As energy demand continues to grow, energy sources will be needed to satisfy that demand by providing a diverse and balanced supply mix. Coal is one of the most important fuels for electric cell generation and is a vital input into steel production and other industrial processes. Consequently, coal will have a major role in meeting future energy needs, since it is often cheaper per energy unit and sometimes more price stable than other fuels.

One of the most significant challenges for coal producers is the reduction of greenhouse gas and other emissions. As companies refine techniques to produce cleaner coal, it is critical to develop partnerships between energy producers, energy consumers, and governments in order to ensure that demand for affordable and reliable energy is met, while managing sustainable development and energy security. MLA works with governors and energy offices of the western states on the multiples uses of coal and is actively involved in the development of legislative and regulatory solutions on the state and federal level.

Biomass

Today, industry is developing cost effective and environmentally attractive means of generating fuels, chemicals, materials, food, and feed from plant biomass. MLA provides counsel to clients on the business, legal and regulatory impacts of biomass fuel generation. In addition, the firm counsels biomass producers and end-users on all aspects of biomass projects, including environmental permitting, energy purchase agreements, utility rates and tariffs, real estate, and project finance.

• MLA secured more than $2 million for a biorefinery (turning biomass into energy) at a major state university. We also enabled the client to compete for additional funding under a “soft earmark” in an energy and water appropriations bill.
• MLA served as energy counsel to a Fortune 500 client in a 25 year garbage to electricity project in Missouri
• MLA helped secure funding for ethanol facilities and other alternative new projects.

Fuel Cells

McKenna Long & Aldridge has worked extensively with a company that integrates fuel cell technology into backup power products for telecommunications, utility, and uninterruptible power supply applications. We served as legal and public policy advisors, providing economic development assistance that includes securing research and development funds and negotiating with economic development agencies. We helped develop and secure passage of tax credit legislation in New York and assisted with amending tax credit legislation in Florida. We assist with the development of legislative initiatives, identifying and securing funding and drafting RFP responses. In the federal affairs arena, we provide counsel to environmental and public works committees, which involves interfacing with the Department of Defense and Department of Energy to ensure that fuel cell technology is included in agricultural bills and energy independence legislation.

•  MLA helped the manufacturer of proton exchange membrane (PEM) fuel cells to receive over $20 million in assistance from various agencies and authorities in New York. Our work has included identifying funding sources, drafting RFP’s, and drafting responses to RFP’s. We also assisted with passage of a State Tax Credit for the purchase of client’s products and with advocating for stronger back-up power requirements for critical 911 infrastructure and more stringent air emissions requirements on distributed generation.
•  MLA worked on incorporating fuel cells as an acceptable technology for back-up power in the State Wide Wireless Networks system and on the acquisition of client’s headquarters. We also prepared the loan documents associated with a $1 million job creation loan/grant from the State of New York Empire State Development Corporation.
• MLA counseled clients regarding the drafting and negotiation of agreements used in the deployment of our clients’ products. Additionally, we worked on our client’s behalf in connection with the creation of an investment fund vehicle that will take advantage of federal and state tax credits available for the purchasers of fuel cells.