Practice/Industry Group Overview
With decades of service to a broad spectrum of the energy industry, the Energy Industry team of Husch Blackwell has dedicated lawyers with a depth of experience in the development, construction, financing and operation of major energy installations and supporting facilities.
Our development, financing and operations work has included coal and gas-fired power generation, electric transmission, distribution and interconnection facilities, gas gathering, processing and storage facilities, gas and oil pipelines, oil and gas exploration and production assets, wind generation, and a significant number of ethanol and other renewable fuels facilities.
Our lawyers are experts in structuring and negotiating a wide range of joint ownership arrangements, including joint development agreements, common ownership of undivided interests, and joint ownership of project companies through various legal entities. Given our experience, we recognize and proactively address the impact of changes that inevitably arise over the life of a long-term project, including future capital projects and transfers of ownership. We also work with our clients to harmonize differing needs and strategies of joint owners with respect to project financing, commodity procurement, and commodity price risk management.
Our joint ownership experience is broad and includes, for example, the structuring and negotiation of undivided joint ownership of new regulated power generation facilities, the sale and purchase of partial partnership or corporate interests in power generation and other energy and industrial asset project companies, and the formation of joint ventures to acquire and operate utilities and other energy- and commodity-related assets, both domestically and internationally.
Management and Operations & Maintenance Agreements
We combine our in-depth understanding of the ownership and operation of energy and industrial assets with our contracting and contract risk expertise in assisting clients with facility management and O&M contracting at all levels. Our experience enables us to ensure that delineations of authority and responsibility between the parties are appropriately addressed so as to provide a solid framework for a long-term working relationship.
We have structured and negotiated management and operations arrangements ranging from single-function outsourcing to full-service asset management and O&M responsibilities, across a wide array of energy and industrial assets, including jointly owned base-load power plants, cogeneration facilities, electric distribution utilities, ethanol and other biofuels plants, gas storage facilities, landfill gas installations, pipelines, commodity terminals and processing facilities, and industrial testing facilities.
We have handled arrangements with a variety of management and O&M fee structures, including fixed and variable compensation, as well as equity compensation components.
With extensive experience at both the federal and state level, the tax members of our Energy Industry team assist our clients with tax-efficient structuring, ranging from acquisitions, divestitures and joint ventures, to advising managers of public funds regarding the structuring of investment vehicles and the acquisition of passive interests in publicly-traded master limited partnerships. We have extensive experience with an array of tax incentives and credits, for both traditional and renewable projects. In addition, our attorneys have represented energy clients in tax controversies, including audits, administrative appeals, and judicial proceedings in federal and state courts and local administrative bodies.
Real Estate and Easements
Our real estate attorneys handle the preparation and negotiation of options, leases, and acquisitions of real property for the development of energy facilities, including fee ownership, easements and tower leases. Our oil and gas lawyers regularly negotiate oil and gas leases and royalty agreements.
We have successfully litigated numerous condemnation issues with respect to fee property for generation facilities and substations, and with respect to easements for power and natural gas transmission and distribution lines and for water distribution lines. We regularly assist clients with a variety of related issues, including issues relating to public right-of-way, dedicated utility and private easements, plat vacation, easements by prescription and franchise agreements.
Certificates and Rates
Our energy regulation lawyers have extensive experience in federal and state certificate processes and rate proceedings for natural gas, electric and other energy commodity assets. We have acted on behalf of marketers, end-users, interstate and intrastate pipelines and distribution systems in numerous cases involving new pipeline and storage service and facilities. Our regulatory team has extensive experience in proceedings involving rates, charges and terms of service of interstate and intrastate natural gas pipelines. We also represent clients in FERC application processes and proceedings regarding rates and terms of service with respect to generation and transmission facilities.
Our environmental attorneys provide advice to clients on regulatory compliance, planning and permitting in over 40 states, including representation in administrative proceedings. We have assisted clients with the multitude of issues arising in the siting and development of major energy and other industrial facilities, including gas-fired, coal and wind power generation, oil refineries, gas processing plants, coal facilities and chemical plants. We also assist clients in acquiring, securing and protecting long-term water supplies and water rights. Our environmental attorneys include former practitioners with the United States Environmental Protection Agency, the Department of Justice, and several state agencies. Our environmental litigation practice is national in scope, and handles major litigation matters for companies in the oil, power, natural gas, chemical, mining, manufacturing and transportation industries.
Construction and Design
Our construction and design team has prepared and negotiated hundreds of construction, design, design/build, and EPC contracts for a wide range of projects on behalf of every type of service provider involved in the construction process. Our lawyers have substantial experience working with clients to avoid work stoppages and other job delays resulting from labor issues, and have successfully defended against hundreds of mechanic’s lien and bond claims in dozens of states, ranging from thousands to millions of dollars.
We have helped clients raise billions of dollars for the development, construction and acquisition of energy assets, including non-recourse and limited recourse project and acquisition debt, as well as corporate debt and equity financings. The types of transactions in which we have been involved are extensive, but have included secured and unsecured revolving and term loan facilities, synthetic and leveraged leases, tax abatement and pollution control bonds, and the private placement and public offering of equity and debt securities.
We are intimately familiar with the credit structures commonly used to support project-based financing of energy assets, including power and commodity tolling agreements, off-take obligations, subordinated debt, and the pledge of project agreements and assets. Our lawyers are also well-versed in the wide array of commodity, power, credit, weather and financial hedges, swaps, and other derivatives.
Capital Projects and Procurement
Our commercial transaction team has a first-hand understanding of the day-to-day operations of major energy, commodity and industrial facilities. We regularly negotiate agreements for major capital projects, equipment purchases, and commodity supply and transportation, and we understand and respond to the common urgency of the contracting process. Our lawyers are experts with respect to contractor insurance and indemnity, credit and supply risk, personnel responsibility, and other issues of paramount importance to the efficient, risk-controlled operation of major facilities.
Labor, Safety and Health
Our labor and employment attorneys are extensively involved in proactively counseling and assisting clients to implement mechanisms to effectively manage people and businesses and avoid litigation or similar adversarial situations. We have successfully defended discrimination and other employment litigation matters for Fortune 500 and other leading global companies. For our traditional labor clients, we provide strategy and support for the preparation and administration of the collective bargaining process. We have successfully guided leading companies in traditional labor arbitrations, negotiations, defense of NLRB allegations, strike preparation and union prevention campaigns.
Our safety and health attorneys provide legal services to workplace environments governed by the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA), including mining, construction, commodity processing and electric generation facilities. We counsel and defend clients in the settlement and litigation of MSHA and OSHA citations throughout the country, and provide supervisor training in safety and health regulations, record keeping and citation responses.