Renewable Energy

Squire Sanders has long been at the forefront of the renewable energy industry around the globe. Our lawyers advise some of the world’s largest renewable energy companies and have worked on some of the most newsworthy matters in this dynamic, rapidly growing and changing industry.

Whether your interests involve wind, solar, biomass, waste to energy, hydro, tidal or other renewable power sources, we can help you address every aspect of any project including:

• Renewable energy project development (including land rights, PPAs, EPC contracts and O&M agreements)
• Renewable energy project finance
• Renewable energy equity transactions
• Corporate matters
• Planning and consents
• Tax structuring and incentives
• Financial incentives
• Environmental and emission credits
• Competition and antitrust issues
• Regulatory challenges
• Intellectual property protection
• Dispute resolution
• Health and safety challenges

The following is a summary of our experience in some of these areas.

Renewable Energy Project Development

We have advised in connection with the development of some of the most noteworthy renewable energy projects in the industry. Several of our deals were the first of their kind in their respective sectors. Our energy lawyers have extensive experience in preparing and negotiating all types of project documentation required for renewable projects including:

• Land Rights – Assisting our clients in securing the land rights required for renewable energy projects including purchases, easements, options, leases (from government and/or private parties) and rights of way.
• Power Purchase Agreements (PPA) and Other Power Trading Arrangements – Negotiating and preparing power purchase agreements and wholesale energy trading contracts that meet the needs of both renewable energy project sponsors and lenders, appropriately allocate project risks, and encompass both off- and on-site supply arrangements.
• Engineering, Procurement and Construction (EPC) Contracts – Negotiating and preparing EPC contracts relating to renewable energy facilities and any related subcontracts, including turbine purchase orders and grid connection agreements.
• Other Contracts and Documents – Negotiating and preparing other renewable energy project contracts including:
  • Equipment master purchase agreements
  • PV module and wind turbine supply agreements
  • Operation and maintenance (O&M)
  • Rights of way documentation
  • Permits and licenses
  • Wheeling agreements
  • Project and construction management agreements
  • Technical service agreements
  • Plant fuel and feedstock arrangements

Renewable Energy Project Finance

Squire Sanders’ lawyers have extensive experience in the area of energy project finance and frequently work with major project sponsors, financial advisers, investment banks, commercial banks, export credit agencies and multilateral financial institutions. Many of our lawyers have been internationally recognized for their expertise in this area.

Our work in energy project finance covers both multilateral and commercial bank debt, as well as other sophisticated finance structures such as leveraged leasing and public finance. In fact, we have one of the largest and best known public finance practices in the world, with more than 60 lawyers engaged exclusively in this practice. In the United States alone, Thomson Financial Securities Data consistently ranks Squire Sanders among the top five bond counsel teams in the United States. In 2009, when we ranked fourth for the year, we participated in 229 transactions totaling more than US$11.3 billion. Our services include:

• Lending Documents – Representing both lenders and borrowers in transactions including loans with multilateral financial institutions, export credit agencies and commercial banks. Our representation includes commitment letter preparation and negotiation, loan structuring, loan documentation, creation and verification of funding compliance requirements, security documentation, guaranties (if applicable), evaluation of fraudulent conveyance issues, and preparation and negotiation of related documents.
• Leveraged Lease Financing – Representing parties engaged in leveraged lease (sale and leaseback) financing projects and providing counseling from commercial, regulatory, tax and securities law perspectives.
• Renewable Energy Equity Transactions – Advising in relation to a broad array of private and public market transactions in relation to the equity structuring, financing, acquisition and divestiture of renewable energy projects including:
  • Equity Fundraisings – Advising equity investors and companies seeking equity financing on both private and listed markets, including initial public offerings and secondary offerings.
  • Mergers and Acquisitions – Acting on both the buy and sell side in relation to a range of national and international M&A mandates, often involving competitive multiple-track auction processes.
  • Private Equity and Institutional Investment – Acting for a number of clean tech funds and houses that are active in the sector (including in relation to management buy-outs and buy-ins) as well as acting for investee companies.
• Loan Guaranties – Advising renewable energy project sponsors participating in governmental schemes (such as the US Department of Energy’s Loan Guaranty Program), as well as other financial guaranties.
• Project Risk Assessment and Due Diligence – Performing onsite project due diligence, conducting risk assessments, preparing and negotiating confidentiality agreements, analyzing bid requirements and participating in post-bid clarification conferences with government entities.
• Tax Structuring – Advising on appropriate tax structuring in relation to debt financing arrangements.

Corporate Matters

We offer comprehensive advice and support in relation to all other corporate matters including the structuring and establishment of partnerships, contractual consortia arrangements and special-purpose joint venture vehicles at the project and holding company level. We are able to provide dedicated project support and a range of administration services.

Site Acquisition and Permitting

We have a dedicated team focused on site acquisition and permitting issues. Our team, which has been acting for renewable energy developers for more than 20 years, includes a number of highly experienced lawyers well versed in appearing before planning inquiries, and is experienced in challenging decisions at both the local and national level. The renewable energy projects for which we have provided site-related advice include onshore and offshore wind farms, solar energy plants and biomass and waste-to-energy plants.

Tax Structuring and Incentives

We provide renewable energy clients with the full range of tax-related services for their projects. We have extensive experience with domestic tax exempt financings, lease financings, capital allowances, tax structuring for international projects, and national and local tax issues. Our tax team delivers a range of advisory services including traditional tax planning and innovative product design and implementation.

Financial Incentives

We regularly advise clients in connection with renewable energy-related incentives, such as investment and production tax credits, renewable energy credits (RECs) and other green certificates, feed-in tariff mechanisms, cash grants in lieu of credits, and the creation and trading of emission reduction credits. These financial incentives take many forms (special financing terms, tax incentives, recycled levies and grant funding) and come from many sources (international, national, state and private). Properly employed, these opportunities significantly improve and are often imperative to the economic value and sustainability of a project. New revenue streams from a project can also be used to attract more favorable financing terms.

Environmental and Emission Credits

We advise on the full array of environmental regulatory challenges impacting the renewable energy industry. Our environmental team is well versed in all aspects of substantive environmental law, and renewable energy clients benefit from our extensive experience in matters arising under environmental and land use statutes, regulations and ordinances around the world. We offer unique strategies for tapping the potential rewards of greenhouse gas emission credit trading opportunities, and we have helped develop the rules governing emission reduction credit banking and trading. We also counsel both private clients and governmental entities regarding the generation, use, valuation and trading of emission reduction credits and other market-driven strategies for environmental compliance.

Competition and Antitrust Issues

We advise renewable energy clients on a wide range of competition, state aid, public procurement and international trade law issues. These include advising on global merger control requirements for corporate transactions and representing clients before regional and national competition authorities and sector-specific regulators. Our advice covers the competition aspects of various types of commercial agreements such as distribution agreements, technology transfer agreements and R&D and specialization agreements. We also undertake competition-related due diligence and training in relation to antitrust investigations, and design and implement procedures and processes to facilitate pre-completion data exchange within the requirements of applicable competition legislation.

Regulatory Challenges

We advise a broad range of clients on the energy- and carbon-related statutes, licenses and regulatory regimes impacting the renewable energy industry globally. We have an outstanding track record in providing advice on the interpretation and enforcement of these regulations across borders. For example, in the United States, we routinely advise on issues such as utility commission approvals, interconnection, ratemaking and marketing, and all aspects of FERC certificate proceedings (including cost recovery methodologies for expansion facilities and environmental review).

Intellectual Property Protection

Our multidisciplinary intellectual property team combines business, regulatory and technical knowledge and skill to provide renewable energy clients reliable counsel in patent, trademark and technology licensing matters. We proactively protect their intellectual property rights and defend them from charges of violating the intellectual property rights of others. We regularly help clients secure national and international patent rights for technology innovations in solar, wind, biofuel, fuel cell and smart grid technologies; resolve disputes spanning a wide range of technologies; offer validity and infringement opinions; and provide merger and acquisition advice.

Dispute Resolution

We represent owners, contractors and subcontractors in litigation and arbitration of construction and warranty disputes, pricing issues, acquisition challenges, environmental compliance, fuel supply disputes, labor disputes and other issues that affect our renewable energy clients. We work with clients to resolve disputes through mediation or settlement in an expeditious and cost-effective manner whenever possible, and are experienced in litigation matters around the globe.

Health and Safety Challenges

We have a team of lawyers covering all health and safety issues pertinent to renewable energy projects. We provide advice in connection with serious incidents and have expertise in coordinating accident investigations under privilege, handling regulatory investigations, representing clients at inquests and representing clients prosecuted for safety and health violations.