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Services Available
Commercial Transactions
Sutherland's diversified energy practice has given our lawyers experience in virtually all facets of the broad energy industry and the commercial transactions that characterize today's evolving energy markets. We structure and document portfolio and individual asset acquisitions (hard assets and contractual assets), joint ventures, inventory financing, processing and long-term supply agreements, development and construction of power projects, asset management transactions and corporate reorganizations. We negotiate all forms of energy, crude oil, petroleum products and gas purchases (wholesale and retail), including load serving, system or unit specific, energy tolling, qualifying facility or distributed generation, financial derivative and other supply transactions. We prepare management and governance agreements as well as trading policies and provide general corporate and legal advice to business organizations of all kinds that are engaged in energy industries.
Combining the experience of years of practice with our awareness of the most current techniques and regulatory, environmental, tax and other energy industry issues, we are able to provide timely, focused and relevant advice to help our clients achieve optimum results. We supplement the experience of the members of our energy practice group with the sophisticated and detailed knowledge of business transactions drawn from Sutherland's business, finance and tax practices. As a result of the size and experience of our energy practice, we are able to provide clients with efficient and effective legal advice and due diligence even in the most complex and time-sensitive transactions.
Whether negotiating an international joint venture for exploration or production of oil or gas reserves, advising on the reorganization of electric cooperatives, performing due diligence on the environmental risks of a refinery, structuring processing agreements or structuring forward purchases or sales of oil and products, Sutherland's energy group brings both industry experience and legal skills to bear on the needs of our clients.
Energy Environmental
The firm's energy Environmental practice covers (1) oil spill planning and risk management; (2) fuel specifications and mobile source programs; and (3) matters related to due diligence, compliance, permitting and enforcement.
Due Diligence Compliance/Permitting/Enforcement
An important part of our practice consist of advising our energy clients on the environmental issues associated with lending transactions and in acquiring or disposing of businesses and property. This work has included advising on and participating in due diligence reviews and environmental audits, negotiating purchase price and escrow terms in light of risks discovered or presumed, and drafting contract language to accommodate environmental contingencies.
Our attorneys have obtained environmental evaluations for many types of transactions and with respect to a wide variety of facilities, structuring the scope of investigations to reflect the particular role of our client and the projected allocation of environmental responsibility among the parties. Complementing their review of ongoing operations, our lawyers analyze the impact of upcoming legislative and regulatory proposals in order to predict the projected costs of future compliance.
With the foundation of our investigative findings, our team of corporate and environmental attorneys can effectively advise its selling, purchasing and financial institution clients as to how best to assign responsibility for environmental matters in each transaction. This advice includes drafting the necessary corporate documents, developing plans for the continuation of ongoing cleanup activities at the facility after closing, creating holdback and other security arrangements, and negotiating with the EPA and state agencies to work out pending enforcement matters.
The firm has a thriving practice based on preventive counseling and general advice on compliance with state and federal requirements. We regularly advise individual companies and trade associations in the myriad questions arising under the complicated and ever-changing environmental laws and regulations. We routinely work with both the United States Environmental Protection Agency and counterpart state agencies to resolve issues that arise from inspections and review of monitoring reports. Our goal is to correct potential compliance problems before they rise to a level where formal enforcement proceedings are initiated.
Our permitting work has included siting and permitting new facilities, procuring required construction and operating permits, planning for compliance with Title V of the Clean Air Act and its regulations relating to prevention of significant deterioration and new source performance, and compliance with the Clean Water Act's effluent guidelines and water quality regulations. In addition, we have handled the defense of contested permits.
In addition to obtaining and defending permits, we have been successful in contesting proposed limitations on individual National Pollution Discharge Elimination System (Clean Water Act) permits, air emission permits, and solid waste disposal permits. We have extensive experience in defending against proposed fines for alleged violations of the Clean Air, Clean Water, and Hazardous Waste laws, and have successfully defended against, or won reductions of, proposed penalties before both state and federal administrative law judges, as well as in the federal courts. We also offer special expertise in dealing with enforcement actions against energy companies accused of violating the various federal mobile sources laws and regulations.
Assisting our clients in avoiding exposure to Superfund liability also is an important component of our environmental practice. We review our clients' operations and waste management practices with an eye toward advising them how to avoid liability as a generator of hazardous waste at off-site disposal areas that may become subject to Superfund cleanup actions. In the same vein, we counsel companies about the potential liability under the Superfund laws of their individual officers, directors, shareholders and affiliates.
Fuels Specification and Mobile Source Programs
Our Environmental practice covering fuels specification and mobile source programs has served refiners, gasoline blenders and importers for over two decades. We participate in every aspect of the development and implementation of the environmental regulations that govern gasoline and diesel fuel specifications nationwide. Among other things, our attorneys have litigated major cases concerning the state and federal rules governing the manufacture and distribution of clean gasoline and have worked closely with the Environmental Protection Agency to assure that our clients' interests are reflected in federal and state fuels policies. Our activities in this arena include:
- We are counselors to refiners, blenders, importers and the New York Mercantile Exchange concerning EPA's reformulated gasoline and antidumping requirements, the agency's gasoline and diesel fuel desulfurization programs, federal additives requirements, and the mobile source toxics program.
- We are advisors to refiners, blenders and importers on California Air Resources Board regulations governing gasoline and diesel fuels and assist petroleum industry participants in addressing comparable state requirements in Georgia, New York, New Jersey and elsewhere throughout the United States.
- We represent petroleum industry clients on mobile source policy matters, including renewable fuels requirements and emerging prohibitions concerning the use of additives such as MTBE.
- We have assisted foreign refiners in making sure that EPA fuels policies allow them to compete effectively in the U.S. oil markets.
- We assist refiners, importers and marketers in EPA mobile source program audits and defend them in enforcement proceedings.
- We have acted as expert witnesses in commercial proceedings involving U.S. mobile source environmental regulations.
- We have litigated critical legal issues about the relationship between federal and state laws concerning environmental fuels specifications.
Oil Spill Planning and Risk Management
In the arena of oil spill planning and risk management, Sutherland energy and environmental lawyers work closely with domestic and international oil and oil trading companies. Our attorneys help our clients evaluate and minimize the risks associated with the movement of crude oil and both persistent and non-persistent petroleum products through waters of the United States, the Americas and world-wide. Our activities include the following:
- We assist national oil companies, refiners, importers and traders in understanding their legal responsibilities under international conventions and U.S. federal and state laws.
- With the assistance of a network of local counsel, we guide our clients through the requirements of Canadian federal and provincial laws, and the laws of jurisdictions in Asia, the Caribbean, Central America, the European Economic Community and South America.
- We counsel clients in the development of barge and vessel vetting programs that assist them in chartering modern, safe barges and vessels with high quality ownership and crews.
- We design comprehensive and tailored emergency response plans for vessel charterers and petroleum cargo owners.
- We help develop crisis management tools to respond to actual and potential public concerns with respect to spill incidents.
- We assist clients in the management of oil spill incidents in the United States and in international jurisdictions.
- Using multi-disciplinary resources, we design and implement oil spill drill scenarios, either as desktop exercises or as full-fledged drills.
Energy Finance
Sutherland has a diverse energy finance practice, representing lenders, borrowers, underwriters and issuers in a broad array of secured and unsecured, private and public, commercial and governmental, and system or project-specific financings. Our energy finance experience includes:
- Public, 144A private and A/B exchange offerings of various types of debt securities;
- Leveraged lease transactions;
- Project financings;
- Government-sponsored financings;
- Working capital financings, including commercial paper programs and lines of credit;
- Tax-exempt pollution control and IDB financings;
- Credit derivatives, including long-term interest rate swaps;
- Structured commodities financings, including specialized inventory securitizations;
- Construction financings;
- All forms of indenture financings, secured and unsecured;
- Debt settlements, workouts and restructurings; and
- Creditors' rights.
In connection with negotiating and documenting such financings, we also provide advice on the critical tax, regulatory and other issues that frequently arise, including relevant industry diligence and disclosure issues, and the approvals required from state utility commissions, the Federal Energy Regulatory Commission, the Securities Exchange Commission and the Rural Utilities Service.
Energy Financial Products & Derivatives
Our energy derivatives practice involves counseling clients on a broad range of energy and commodity derivatives issues, including contracting, documentation, regulatory, tax consequences, and conflict resolution. We offer an array of services ranging from analyzing and negotiating derivatives documentation (e.g., ISDA Master Agreements, credit support documentation, and cross-product and cross-affiliate master netting agreements), to advising clients with respect to tax and disclosure implications of derivative transactions, to litigation involving the analysis and proper valuation of terminated derivative transactions. Our work in this area includes:
- Developing "model" documents and documentation policies for options, derivatives and swaps in petroleum, natural gas, weather and power;
- Evaluating and developing internal guidelines and controls for clients' derivatives activities and reviewing risk management policies related to their energy derivatives trading;
- Representing clients before agencies, including the CFTC and FERC, both for regulatory matters and investigations;
- Counseling clients with respect to international regulation of futures and forward contracts, including dealings in the Brent 15-day forwards market;
- Representing clients with respect to transmission access, market-based rates, and issues relating to the commoditization of electricity before FERC and other agencies;
- Representing numerous energy trading companies, energy merchant companies, and traditional utilities in disputes involving swaps, derivatives and options against other market participants in mediation, court and arbitrations; and
- Representing bankruptcy proceedings representing non-bankrupt and bankrupt energy companies in where valuation of forward contracts and swaps predominated.
Our attorneys work with a range of clients to identify and address significant legal and business issues that can arise from these complex documents and counterparty relationships. Sutherland lawyers have been working with participants in the energy markets for many years, and we understand the energy business and its markets.
Energy Litigation/Dispute Resolution
The firm's energy litigation and dispute resolution practice draws on the experience of the firm's energy and litigation groups in representing energy companies in litigating and resolving complex commercial and regulatory disputes. We have litigated on behalf of energy clients -- including energy trading and marketing companies, electric utilities, cooperatives and oil companies -- and industry trade groups and their members before numerous state and federal courts. We also have significant experience in resolving such disputes in alternative manners -- through mediation, arbitration, and negotiated settlements. In addition, we regularly represent clients in administrative litigation before state and federal agencies, such as the Federal Energy Regulatory Commission. Our attorneys have been working with participants in the energy markets for many years, and we understand the business environment and market in which they operate. This marriage between the business of energy and litigation results in a dynamic and effective team of lawyers to help resolve difficult energy commercial disputes. We have advised, and litigated on behalf of, clients involving complicated commodities, commercial and regulatory issues, including:
- Procedures for terminating, liquidating and valuing forward physical and financial positions with insolvent counterparties;
- The evaluation of long-dated tolling agreements;
- The enforceability of one-way termination provisions in physical and financial master agreements;
- The enforceability of book-outs, absent consent of all the parties;
- The connection, if any, between price curves of physical spot and forward markets;
- Whether certain contracts and transactions qualify as forward commodity contracts;
- The pre-emptive effect of federal jurisdiction over regulated energy companies versus state courts and agencies; and
- Direct connections and bypasses by industrial and generating end-users to interstate natural gas pipelines.
We have represented energy and related clients in numerous disputes, including:
- Five energy trading companies and utilities in litigation with the Power Company of America, LP in the PCA bankruptcy;
- More than ten counterparties in disputes with Enron Corporation, Enron North America, and Enron Power Marketing, Inc. and related entities in the Enron bankruptcy;
- A group of energy trading companies in their bankruptcy;
- A large energy trading company in arbitration regarding the termination and liquidation of all transactions between company and counterparty;
- An oil company in antitrust litigation against other oil companies;
- Individuals and companies in investigations by various federal agencies;
- Amicus curiae briefs before U.S. Courts of Appeals and the Supreme Court of the United States; and
- Sophisticated commercial disputes between energy companies.
In short, our energy litigation and dispute resolution practice involves the full range of litigation, arbitration, mediation and negotiation activities on behalf of energy companies, with the experience of lawyers that have been working with participants in the energy markets for many years.
Energy Restructuring & Creditors' Rights
The Energy Restructuring & Creditors' Rights ("ERCR") Team at Sutherland Asbill & Brennan LLP offers depth and industry-specific knowledge of the critical issues facing national and international clients involved in energy company bankruptcies -- either as creditors or debtors. The ERCR Team has been involved in some of the largest and most significant bankruptcies of energy companies, including those of Enron, Mirant, National Energy & Gas Transmission and The Power Company of America. The ERCR Team is comprised of ten professionals drawn from the Firm's extensive and diverse Energy Practice and our Business Restructuring/Bankruptcy Practice, with several of our lawyers focusing primarily on energy bankruptcies. We are business focused and can make the greatest contribution as an integrated part of the client's team.
Our ERCR Team has provided bankruptcy-related legal counsel to non-bankrupt power marketers, energy trading companies, electric cooperatives, investor-owned utilities, and industrial end-users, as well as to several European and British energy companies -- handling all aspects of the clients' needs. We also have represented debtors in possession as special energy counsel, working closely with traditional bankruptcy counsel and restructuring consultants, to provide specialized advice regarding energy contracts, trading, forward contracts, swaps, and regulatory matters. Our Team currently serves as special energy counsel to the estate of a major energy trading company.
We are experienced in applying bankruptcy law and principles to forward contracts, swap agreements, netting agreements, futures contracts, options, and tolling agreements -- areas in which few bankruptcy firms have in-depth expertise. The ERCR Team provides advice relating to procedures for properly terminating and valuing trading contracts and portfolios, negotiating to liquidate positions consensually, responding to counterparty defaults or terminations, drafting master agreements to provide additional protections against counterparty credit risk, developing strategies for responding to margin/collateral calls and demands for adequate assurance, and helping to set priorities and protocols for responding to counterparties, upon bankruptcy. In this context, we have dealt with contracts for power, natural gas, coal, capacity, emissions and environmental attributes.
Our Team counsels clients on a host of intersecting bankruptcy, commodity, trading, and regulatory issues, and has represented clients in major proceedings before bankruptcy courts, in adversary proceedings, in mediations and arbitrations, in party negotiations, and before federal agencies, including the Federal Energy Regulatory Commission and Commodity Futures Trading Commission.
We have counseled clients on a number of important energy bankruptcy issues, including:
- Enforceability of limited two-way/one-way termination provisions;
- Procedures for terminating and liquidating forward physical and financial positions and tolling agreements;
- Valuation of physical natural gas and power positions, tolling agreements and financial swaps, derivatives and options;
- Determining whether specific contracts qualify as forward contracts;
- Determining whether counterparties qualify as forward contract merchants;
- Automatic stay, preferences, and fraudulent conveyance issues;
- Enforceability of setoff and netting issues; and
- Credit support, collateral, and guarantee issues.
Our ERCR Team has been extensively involved in the following areas:
- Creditors' Rights
- Restructuring And Bankruptcies
- Dispute Resolution
- Commercial And Contracting Issues
- Federal Regulatory Matters
Energy Securities
Sutherland's energy securities practice includes representation of both issuers and underwriters in public and exempt offerings, as well as SEC periodic reporting and other compliance matters. As part of a broad-ranging practice in securities matters for issuers, underwriters and investment advisors, Sutherland has an energy securities practice which includes:
- Representation of issuers and underwriters in both initial public offerings and offerings by established public companies, including shelf registrations;
- Tax exempt financings and other exempt offerings, including 144A, Regulation D and Regulation S offerings;
- Assistance and advice with respect to periodic reports and release of material information, compliance with new legislation and SEC rules and regulations;
- Assistance with obtaining of no-action letters and exemptive relief from the SEC in connection with Securities Act transactions and Exchange Act reporting; and
- Advice on compliance with the Sarbanes-Oxley Act of 2002 and the SEC's related regulations.
Sutherland attorneys who service our energy clients' securities needs are active in a variety of transactions for electric and investment banker clients.
Income Tax
Tax practice is one of the firm's oldest and largest practices, having been started in 1924 by our founding partners. Our group is nationally known, both for its professional activities in the private sector and for lawyers who have government experience. Over the years we have provided lawyers to serve as executives at the Internal Revenue Service, Treasury, the Justice Department and on the congressional tax writing committee staffs. Today's practice group consists of more than 70 lawyers, engaged in both federal and state tax matters, including all aspects of planning and controversy work. We have experienced lawyers in corporate, financial products, tax accounting, partnerships, employee benefits, natural resources, international and other areas. One sub-group involves tax matters encountered by the energy industry.
The firm's tax lawyers have represented companies in all sectors of the energy industry. Our clients operate in all the major market segments, including E&P or generation, transmission, distribution and trading. Several of these companies have both domestic and foreign business interests. We also advise large energy consumers and independent energy producers, helping to reduce the tax component of their energy-related costs.
Over the years, our clients have involved us in a wide spectrum of work, including tax issues arising in all phases of their traditional integrated businesses. We have worked on matters involving conventional regulated operations (FERC, state PUCs and NRC), including areas ranging from customer deposits, billing and income recognition and claim of right (IRC §1341), to contributions in aid of construction (IRC §118) and plant "placed-in-service" issues. As a result of these many projects, we are familiar with the tax implications of the ratemaking process and regulatory accounting.
More recently, deregulation has raised new tax issues involving the treatment of stranded cost recoveries, sales of generation assets, internal restructuring, terminated power contracts and involuntary conversions. Our clients have also involved us in tax issues arising from wheeling arrangements and inter-ties with merchant generators or customers and energy trading operations (mark to market and hedging activities). We have been active in these areas, as well as in matters arising from cross-border plays and investments in domestic and foreign utilities when our clients ventured overseas with expansion strategies.
We are also familiar with other active tax issues in the energy industry. Some of those are raised by the special energy and research tax incentives and environmental remediation. We also have dealt with the more conventional tax concerns that our energy clients share with large corporations engaged in other businesses, including accounting method changes, corporate acquisitions and reorganizations, depreciation, investment tax credits, spare parts and capital improvements (placed in service and removal from service), abandonment losses, bad debt reserves, property taxes, self-constructed assets, acquisition basis allocations, G&A allocations, structured financing costs, bankruptcy and tax-and-finance-advantaged transactions (SPEs and other structures, including the applicable new tax disclosure rules).
Nuclear generation is an area of special consideration, with its tax issues surfacing in plant operations and sales, decommissioning and related trust funds. We have also been involved in preliminary planning with respect to the anticipated construction of new nuclear power plants under the more streamlined permitting processes now evolving at NRC and the new generation of reactors being developed. Related issues involving high-level and low-level waste disposal, nuclear fuel, DOE and local PUC payments, and spent nuclear fuel are also familiar to us.
In recent times, tax controversies have been settled more and more by alternative dispute resolution techniques offered by the IRS and most courts. We are familiar with these new means for the early and cost-efficient resolution of tax issues, and believe that they offer promise in the right situations. When ADR cannot be used, and when there is no other means of protecting a client's interests, our lawyers are experienced in every facet of tax litigation from trials in the U.S. Tax Court, district courts, or the Court of Federal Claims to arguments before the various Courts of Appeals and the United States Supreme Court.
Liquefied Natural Gas
The Liquefied Natural Gas Group offers depth and experience at every stage of the LNG "value chain." The Group is comprised of 13 attorneys who are part of the firm's extensive and diverse energy practice. We are extraordinarily business focused -- and can make the greatest contribution as an integral part of the client's LNG business or project team.
Our LNG Group has provided legal counsel in connection with projects involving national oil companies (NOCs), international energy concerns, LNG producers, developers of terminal regasification projects and expansions, transportation and marine businesses, U.S.-based power generators, gas utilities and various industrial concerns.
We have worked with every U.S. federal agency involved in LNG regulation and oversight, including the Federal Energy Regulatory Commission (FERC) and the U.S. Coast Guard (USCG). We also have familiarity with government agencies and local offices in many of the states affected by the growth in the LNG industry including California, Florida, Georgia, Louisiana, Maine, Maryland, Massachusetts, New Jersey, New York and Texas.
Our most recent project, for example, has involved representing Statoil ASA, the Norwegian national oil company, in negotiating a 20-year capacity contract for the entire 800,000 Dth/day (6.8 Bcf of storage) at the Cove Point terminal, including physical facilities and capabilities, engineering and costs, vessel traffic, pipeline access projects, regulatory permitting processes, and inter-shipper issues. The background of our LNG Group extends to the following, each described further below:
- Siting of LNG Import Terminals
- Project Development of LNG Regasification Facilities
- LNG Permitting and Regulatory Compliance
- Transactions Involving LNG Producers and Suppliers
- Contracting for LNG Import Terminal Use
- LNG Transportation and Marine Matters
- LNG Terminal Management and Operation
- Terminal-Pipeline Access and Related Issues
- LNG Safety and Security
- LNG for Power Producers, Utilities and Industrial Users
- LNG as Part of Energy Counseling
LNG Representative Projects and bios of the LNG Group lawyers are found following the description of the Practice Areas.
Practice Areas
Siting of LNG Import Terminals
We have counseled clients extensively regarding the range of siting issues, both onshore and offshore, and have closely evaluated siting considerations for each announced green-field, brown-field and expansion project in the United States. Our LNG Group has addressed public relations, marine, regulatory, commercial, pipeline, environmental, safety and other siting issues. Our lawyers have spoken and published extensively on this subject.
Project Development of LNG Regasification Facilities
Sutherland's LNG Group is extensively involved in project development. Our knowledge of the industry and its participants has allowed us to weigh effectively site proposals and to evaluate the strength of a project in comparison with others in the works. We are experienced in coordinating contracts, helping manage commercial and government relationships and guiding clients through the regulatory and permitting process affecting regasification facilities, marine traffic and downstream pipeline access.
LNG Permitting and Regulatory Compliance
Our LNG Group is experienced in the processes before FERC and the U.S. Coast Guard required for the permitting of new terminal facilities and the expansion of existing ones. We have 40 years of experience in the FERC project certification process, and we have been closely involved in the consequences of the Hackberry "deregulation" of the economics of LNG terminals. Our LNG Group also has unique experience in obtaining U.S. Coast Guard plan approvals for vessel traffic to onshore facilities. In addition, we have worked with the Department of Energy (DOE), The Environmental Protection Agency (EPA), the Department of Interior Minerals Management Service (MMS), as well as with government agencies and local officials in California, Florida, Georgia, Louisiana, Maine, Maryland, Massachusetts, New Jersey, New York and Texas.
Transactions Involving LNG Producers and Suppliers
Sutherland's LNG Group has assisted clients in structuring transactions involving liquefaction facilities and the export of LNG cargos from around the world. We have negotiated multi-year LNG supply contracts from various origins including Algeria, Norway, Trinidad and other sources. We also have counseled clients, including large industrial users, on issues relating to the direct purchase and importation of LNG.
Contracting for LNG Import Terminal Use
Our LNG Group has extensive experience in negotiating for import terminal capacity and use. We have successfully concluded detailed agreements for the construction and use of new terminal capacity, including physical facilities, engineering and costs and the range of facility services. We also have negotiated commercial transactions including multi-shipper agreements with respect to a single terminal; the purchase and sale of existing capacity and services; and other commercial transactions including terminal utilization.
LNG Transportation and Marine Matters
Few firms are as well versed as our Group in LNG-associated marine issues, including commercial, environmental, regulatory, safety and security matters. We advise on international conventions, U.S. federal and state laws and port-specific rules. Our Group utilizes its extensive Coast Guard knowledge to provide comprehensive planning and advice to help minimize the risks associated with the movement of LNG cargos. We counsel concerning vessel utilization, scheduling, navigation and tug services, and we help design comprehensive, tailored emergency response plans for LNG vessels, charters and cargo owners.
LNG Terminal Management and Operation
As counsel to a large energy concern in one of the few major U.S. LNG deals to be closed in recent times, our LNG Group is intimately familiar with the business and regulatory necessities required to reactivate, expand and operate an LNG regasification facility today. Our lawyers are leaders in structuring arrangements that address new business realities, and are experienced in providing counsel concerning the expanding web of relationships between facility owners, shippers, nearby commercial concerns, government officials and public groups.
Terminal-Pipeline Access and Related Issues
Sutherland's LNG Group assists with pipeline project development, market access and integration, and related concerns such as storage and gas quality issues. We advise clients concerning regulatory developments, filings, decisions and policies affecting interstate natural gas pipelines that interconnect with LNG import facilities or otherwise affect LNG trade.
LNG Safety and Security
Our LNG Group has worked extensively with officials responsible for safety and security in the post 9-11 environment. Our team provides comprehensive planning and advice to help minimize the risks associated with the movement of LNG cargos. Our crisis management tools are designed to respond to actual and potential public concerns.
LNG for Power Producers, Utilities and Industrial Users
Our LNG Group has counseled U.S.-based power producers, gas utilities and/or industrial end-users with respect to LNG matters, including negotiations with LNG producers/suppliers. We have advised large consumers on the legal and commercial issues involving the formation of an LNG aggregator entity. Our Group also is currently working with a major industrial user on the development of a site for an LNG import terminal, including the partial use of the terminal for the industrial's on-site gas needs.
LNG as Part of Energy Counseling
Sutherland's LNG clients benefit from our long tradition of representing major players in the energy industry and natural gas sector. We have the breadth of experience to address nearly every business issue encountered in LNG transactions and activities. Our lawyers are knowledgeable in areas that include the commoditization of energy products, government relations, business restructuring and bankruptcy, taxes and fees, construction contracting and dispute resolution and antitrust.
Maritime & Shipping
Sutherland has extensive experience advising clients on the commercial, environmental and regulatory (both safety and security) implications of their maritime and shipping activities. In providing this assistance our attorneys work with a network of admiralty counsel, both in the United States and abroad. Our activities include the following:
- We coordinate filing applications for ship financing guarantees with the Maritime Administration.
- We counsel clients on Customs and Jones Act issues associated with the importation of crude oil, petroleum products and chemicals.
- We work closely with our clients regarding vessel utilization, scheduling, navigation and tug services.
- We counsel clients in the development of barge and vessel vetting programs that assist them in chartering modern, safe barges and vessels with high quality ownership and crews.
- We help design comprehensive, tailored emergency response plans for vessel charterers and petroleum cargo owners.
- We assist clients in the management of oil spill incidents both in the United States and in international jurisdictions.
- We have actively participated in U.S. Coast Guard proceedings to develop the first comprehensive, post 9/11, safety and security plan for LNG vessel transits through the Chesapeake Bay.
- We advise clients on environmental and excise tax issues associated with shipping petroleum and other products.
- We prepare and analyze marine provisions for commodity shipments by vessel and barge.
- We have participated in a broad range of transactions and matters for our clients in this evolving area of the firm's Energy Practice.
Nuclear Energy
Sutherland has played a lead role in restructuring the nuclear industry. In recent years, our lawyers have been responsible for the most significant acquisitions of nuclear assets, bringing to bear Sutherland's experience in mergers and acquisitions, antitrust, government contracts, intellectual property, employee benefits, and tax to structure and close complex multinational transactions. We also have negotiated and structured international joint ventures in the nuclear field, drawing on our intimate knowledge of the multinational regulation of trade in nuclear commodities and technology.
Sutherland works with clients holding major contracts with the U.S. Department of Energy and other agencies of the U.S. Government. In the litigation arena, we emphasize finding pragmatic solutions to disputes, but when a negotiated outcome is not feasible, we are veteran litigators and have substantial experience with nuclear related issues in courts and before arbitral tribunals.
Our lawyers help craft nuclear energy policy before the U.S. Department of Energy and in the Congress, drawing on the firm's broad kowledge in all matters of energy policy. We also have specific experience with international trade in nuclear commodities and technology.
Regulatory
Sutherland's energy regulatory practice is actively attended by twenty-six of our attorneys. The practice encompasses representation of clients before many federal and state regulatory agencies whose actions shape the energy business. Our clients span the breadth of the energy industry, from production through consumption, and all are directly or indirectly affected by energy and energy commodity regulations. For example, we represent natural gas producers, electric cooperatives, electric generators (particularly independent power producers) and power marketers, industrial and other gas and electricity end use consumers, and various companies that trade and make markets in energy commodities, as well as some interstate pipelines and gas and electric utilities.
Our work for these clients includes representation before a host of federal and state regulatory bodies, including the following:
- CFTC
- DOE
- FERC
- RUS
- SEC (PUHCA)
- State PUCs
Sutherland has long been known for its work before administrative and regulatory agencies. On behalf of clients, we regularly undertake those actions in both federal and state jurisdictions that help determine the success of our clients.
Our regulatory practice intersects with the firm's broad energy practice in many ways. Sutherland's attorneys offer clients extensive knowledge of and experience with federal and state regulatory agencies. Our attorneys have been at the forefront of the development of more competitive, open access interstate and state energy markets. In all instances, we seek to ensure that our clients' interests are made known to federal and state policymakers and that our actions further the energy-related goals of our clients' businesses.
Trade & Sanctions Laws
Energy trading and investment in energy-related projects in the Middle East, Caribbean and other markets necessarily involves careful consideration of U.S. trade laws prohibiting transactions with the governments, nationals, products and vessels of sanctioned countries. Our lawyers regularly counsel and assist U.S. and foreign clients on the sanctions programs administered by the Office of Foreign Assets Control and their application to trading and commercial transactions.
Our lawyers' extensive experience on trade issues also includes extraterritorial sanctions laws such as Helms-Burton and the Iran-Libya Sanctions Act, United Nations sanctions, anti-boycott laws, anti-bribery statutes, short supply controls and other export restrictions. We counsel firms with multinational operations regarding acquisitions and investments where trade sanctions come into play and assist them in obtaining specific licenses from the Treasury Department to enter into transactions otherwise subject to regulatory prohibitions or with respect to blocked property. We develop in-house compliance programs, trading guidelines and give seminars to traders, lawyers and operations personnel. We advise clients on contract documentation where protective measures are necessary to ensure compliance with anti-boycott, foreign corrupt practices and sanctions laws. We represent both energy and non-energy clients before the Office of Foreign Assets Control in defending notices of violation and settlement of enforcement actions.
Transaction Taxes
No analysis of an oil, natural gas, or power trading commercial transaction is complete without a review of the transaction's tax implications. Sutherland energy and tax attorneys are well-versed in evaluating the tax consequences of petroleum, gas and power purchases, and sales, exchanges and importation of crude oil and refined products. We advise energy clients on the potential for federal, state and local excise, sales and use, franchise, property, environmental, spill, business and occupation, gross receipts and utility tax liabilities attendant to wholesale and retail transactions, processing and tolling arrangements, importation and ex-duty sales and marketing ventures.
Sutherland's energy tax practice involves assisting U.S. companies in obtaining licenses, bonds and registrations when commencing new business operations, assessing the transaction tax consequences of financing and maintaining inventory and acquiring petroleum, natural gas and power assets, establishing compliance programs, and handling tax-related disputes between private parties and before the Internal Revenue Service and state tax agencies. We represent clients in audits, enforcement proceedings, litigation and criminal investigations and have worked closely with the Internal Revenue Service, the Committee on Joint Taxation and Senate and House tax writing committees in developing laws and regulations in the excise tax area.
Our unique experience enables us to efficiently counsel our clients at every stage of distribution regarding the transaction tax consequences of marketing gasoline, diesel, fuel oil, jet fuel and other refined products and in the context of commercial transactions and enforcement and deficiency proceedings.
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Clients:
1st Rochdale Cooperative, Alabama Electric Cooperative, Alcoa Inc., Allegheny Electric Cooperative, Aloha Petroleum Corp., American Forest & Paper Association, American Iron & Steel Institute, Archer Daniels Midland, Atlantic Trading & Marketing, Inc., Banc of America Securities LLC, British Nuclear Fuels plc, California Manufacturers & Technology Association, Calpine Corporation, Calpine Energy Services, LP, Cargill, Inc., Cenex Harvest States Cooperative, Central Electric Power Cooperative, Central Iowa Power Cooperative, Chemoil Corporation, Chevron Global Gas, Citadel Investment Group, CoBank, ACB, Cobb EMC, Continental Electric Cooperative Services, Diverse Power, Dunhill Resources, Dynegy Marketing & Trading, Dynegy Power Development Corporation, Eagle Energy Partners I, LP, Flint Energies, Florida Industrial Gas Users & Industrial Gas Users of Florida, Ford Motor Company, Fulcrum Power Services, General Motors Corporation, George E. Warren Corporation, Georgia Industrial Group, Georgia Transmission Corporation, Glencore Ltd., Goldman, Sachs & Co., Grain Processing Corporation, Great River Energy, Greystone Power Corporation, Heartland Electric Cooperative, Hunt Power, L.P., Independent Petroleum Association of America, InterContinental Hotels Group, International Paper Company, Iowa Consumers Coalition, Irwin Energies, J. Aron & Company, J.P. Morgan Chase Bank, J.P. Morgan Securities Inc., Koch Supply & Trading, Inc., Lodgepole, Louis Dreyfus Corporation, Louis Dreyfus Energy Canada L.P., Louis Dreyfus Energy Services L.P., M Power Energy Services, Masefield Americas Inc., Minnkota Power Cooperative, Morgan Stanley & Co. Incorporated, Morgan Stanley Capital Group Inc., National Energy & Gas Transmission, Inc. (f/k/a PG&E National Energy Group), NEGT Energy Trading - Gas Corporation (f/k/a PG&E Energy Trading - Gas Corporation), NEGT Energy Trading - Power, L.P. (f/k/a PG&E Energy Trading - Power, L.P.), Neste oy, New Jersey Large Energy Users Coalition, New York Mercantile Exchange, Noble Americas Corporation, North Atlantic Refining Company, Ltd., North Carolina Electric Membership Corporation, North Georgia EMC, Occidental Chemical Corporation, Oglethorpe Power Corporation, Old Dominion Electric Cooperative, ONEOK, Inc., Pataula EMC, PCS Nitrogen, Phibro, Inc., Process Gas Consumers Group, Procter & Gamble, Questar Energy Trading Co., Questar Pipeline Company, Rappahannock Electric Cooperative, Reedy Creek Improvement District, Sawnee EMC, Seminole Electric Cooperative, Sempra Energy Trading Corp., Shell Energy Services Company, LLC, Shell Power & Gas, Shell Trading (US) Co., South Jersey Industries, Inc., Sowood Capital Management, Square Butte Electric Cooperative, Statoil ASA, Statoil Marketing & Trading (US) Inc., Statoil Natural Gas LLC, Statoil North America, Inc., Sumter EMC, Sunflower Electric Power Corporation, Tenaska, Inc., Texas Industrial Gas Users, The Citadel Group, The Process Gas Consumers Group and the PGC Electricity Committee, TIAA-CREF, Tractebel Energy Services, Inc., Trafigura AG, Trafigura Beheer B.V., TransMontaigne, Inc., Tri-County EMC, U.S. Gypsum Co., USG Pipeline Company and B-R Pipeline, Valero Energy Corporation, Valley Electric Association, Inc., Vinmar International Inc., Vitol S.A., Inc., Western Farmers Electric Cooperative, Westinghouse Electric Company LLC, Westport Petroleum, Inc., WPS Energy Services
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