Very few subjects have generated as much regulatory, political or social concern as electrical energy generation. Our country is in the process of reviewing policies related to traditional energy production and responding to environmental concerns. Although our firm’s experience with conventional power production technologies and related legal issues in the United States is extensive as described below, we continue to stay abreast of initiatives and regulatory proposals which may involve economic or operational constraints on existing technologies. We also monitor initiatives related to enhancements and incentives for reduced emissions and alternative energy development.
Stites & Harbison has an active Energy and Electrical Power practice and provides a broad spectrum of legal services related to the industry. From siting, permitting and constructing power plants and transmission facilities to prosecuting patents on electrical generating technology or negotiating and litigating power purchase or fuel supply agreements, the breadth of experience at the firm supports many facets of this vital industry.
Power Project Development
Our attorneys have been significantly involved in the development, financing, permitting, construction and operations of numerous electrical power generation and associated facilities, including coal, gas, waste coal, bio-mass and municipal waste-fired plants. We have also advised prospective independent power lenders and investors. Pursuing certificates of public convenience and necessity in connection with public utility power plant development has been successfully undertaken by members of our practice.
Associated with power generation facilities, we also have significant experience in transmission line siting and development, including NEPA analysis, wetlands, cultural resources, wild and scenic rivers and endangered species, along with associated real estate issues such as easement negotiations and eminent domain.
Permitting/Regulatory Review/Rulemaking
As a threshold to any energy development or operation project are the federal, state and local environmental regulation and enforcement concerns. Attorneys at the firm have significant experience in all of the related regulatory programs from greenfields development of a fuel or power generation source through permitting, development, operation, transmission, energy use and ultimate waste disposal and reporting requirements.
Conducting environmental and regulatory due diligence related to electrical energy production for management and investors routinely integrates our attorneys with plant management and engineering staff. We have defended major utilities in Clean Air Act litigation regarding PSD permitting requirements and have acted as special environmental counsel in developing over a dozen generating facilities. Our attorneys are also experienced in developing and/or responding to regulatory rulemaking in support of alternative fuels and coal combustion residue beneficial use programs.
Intellectual Property Support
Our firm has significant experience representing companies involved in electrical generation technology, including representing a major manufacturer of solar panels, large energy companies in patent litigation concerning boiler technology, defending a major utility regarding asbestos claims and federal investigations related to asbestos wrapped generator stator bar replacement, defending the alleged breach of warranty against the manufacturer of electrostatic precipitators, CO2 emission control technology, and dry low NOx combusters for heavy duty gas turbines. In energy industry related technology we have been involved in litigation on railroad hopper car technology for ethanol by products, large pipe couplings for hydro-electric power water pipes and have provided patent opinions regarding certain aspects of deep water Gulf of Mexico oil rigs.
Alternative Energy
Our nation is exploring various alternatives to traditional coal-fired electrical generation, including clean-coal, biofuels, wind, solar and waste fuel technologies. As one example of our experience, we represent the developer of a major state of the art 2.9 million ton per year coal gasification plant expected to produce 700 MW and 100 MMSCF/day of natural gas while capturing 99% or 4.2 million tons/year of CO2 to be utilized for enhanced oil recovery. Our involvement includes developing the specific EPC framework for the project, advising on real estate and mineral law issues, related regulatory issues and economic incentives.
We also represent the developers and owners of numerous Pennsylvania waste-coal fired power plants which meet that state’s Alternative Energy Portfolio Standards Act requirements. Our attorneys have also provided extensive assistance with federal stimulus grant and tax incentive applications for energy developers. This assistance has included preparation of U.S. Department of Energy carbon capture and clean coal power initiative grants and loan guarantees for east coast deep water wind and gulf coast pet-coke projects.
Power Purchase Agreements
In non-regulated jurisdictions or areas permitted by law, our attorneys have assisted industrial users in procuring large quantities of electric energy for their manufacturing processes, initially working with clients at the RFP phase and later negotiating terms and conditions and preparing contract documents. The firm has gained experience negotiating power supply contracts with electric utilities or other suppliers such as Cinergy (now Duke Power ), LG&E Energy Marketing, Big Rivers Electric, Constellation Energy, Ameren, Dynegy, Morgan Stanley, Southern Illinois Power Cooperative and Vectren. Energy acquisition documentation has utilized the EEI Master Purchase Power and Sale Agreement format or individually tailored agreements where required. Our experience has also included overseeing the purchase of transmission services for importing the energy and in some cases for exporting power being resold by the manufacturer.
Project Finance
Corporate finance, tax and PSC attorneys within our Energy and Electric Power practice advise on financing issues including traditional bond financing and have advised on more creative concepts such as synthetic leases. Representing energy companies before state and federal revenue agencies on tax issues is integral to our energy practice and has involved interstate gas transmission companies, national coal companies, industry associations and electric generation companies. Our attorneys often analyze financing and tax incentives available under federal and state law, including the ARRA. We have practiced many rate cases before state utility regulatory agencies representing utilities and end users and have represented independent power producers seeking exempt status.
Depending on the nature of the project, our firm brings together the skills and experience necessary to most cost effectively meet the client’s objectives. Through many of the projects described here and others like them, our firm has put together a team of experienced attorneys to most efficiently and cost effectively chart a course through the legal playing field that has been and will continue to be more complicated as our nation wrestles with new energy and related environmental policies.
