Practice Areas & Industries: Winston & Strawn LLP

Practice/Industry Group Overview
In energy transactions, our energy, environmental, antitrust, and financial services attorneys work closely with our corporate deal team to advise clients on energy industry mergers and acquisitions as well as the ownership, development, construction, financing, acquisition, sale, leasing, regulation and restructuring of energy assets.  We have added value to our clients’ transactions through tax-advantaged asset transfers, hedging strategies, and specialized tax-sensitive deal structures, such as like-kind exchanges.  We also have extensive experience in transactions involving electric transmission systems, fossil, hydroelectric, and nuclear power generation facilities, natural gas pipelines and storage facilities, and coal mines, both domestically and around the world.  In addition, our team has exceptionally deep experience with complex multiple, simultaneous asset transactions in the energy sector.

Services Available

Nuclear Asset Transactions

With respect to nuclear asset acquisitions and dispositions, our attorneys have been engaged in many NRC license transfer matters. The NRC approval process for specific license transfers involves filings with the agency and, in most cases, an opportunity for public comment and hearing. The firm has represented and counseled its clients with respect to numerous high-profile license transfer cases, including the Exelon-Public Service Enterprise Group merger and more recently the Duke Energy-Cinergy merger.

We also have served as counsel in negotiations and related NRC approvals regarding the contracting by one utility for the services of another to operate nuclear power plants. The firm’s attorneys have assisted in due diligence in cases involving acquisition of a nuclear plant or licensee. In addition, we have assisted numerous clients in addressing specific NRC regulatory and licensing issues in the unbundling/transfer/merger context, including issues related to:

• technical and managerial qualifications of the new owner/operator
• financial qualification of the new owner/operator
• decommissioning funding assurance
• qualified and non-qualified decommissioning trusts
• foreign ownership, domination, or control
• nuclear insurance
• creation of new nuclear generating companies
• management service agreements
• tax consequences of the acquisition or divestiture of nuclear assets
• obtaining IRS approval for the transfer of a qualified fund and minimizing the adverse impact of the transfer of a non-qualified fund

Section 45 Tax Credit and Related Experience

Winston & Strawn attorneys have combined their skills in the areas of project finance and partnership taxation to assist clients in connection with Section 45 financings, as well as numerous other facility deals similar in type and structure to those qualifying for Section 45 credits. Our work in this area often requires our attorneys to identify optimal financing structures to meet economic and tax goals as well as evaluate regulatory constraints for our clients. 

Section 45 provides a tax credit of almost $.02 per kwh of electricity produced by the taxpayer and sold to an unrelated person. The Section 45 tax credit is generally available for electricity produced from certain wind, refined coal, closed-loop biomass, open-loop biomass, geothermal energy, solar energy, small irrigation power, municipal solid waste, and qualified hydro power production.

Energy Industry Bankruptcies and Restructurings

Today’s power market requires participants to address significant defaults under existing loan facilities, restructure such facilities to accurately reflect the current value of energy assets and, in extreme cases, assert and resolve claims in the arena of the bankruptcy court. Winston & Strawn’s energy lawyers have served as lead regulatory counsel in some of the biggest utility bankruptcies in U.S. history, including Pacific Gas and Electric Company, National Energy & Gas Transmission, Inc. and USGen New England, Inc. Our bankruptcy lawyers have been active in litigated proceedings involving NEGT and USGen, as well as the recovery of creditor claims in the Enron proceedings.

Winston & Strawn's financial services lawyers also have served as regulatory counsel to the New York Mercantile Exchange, Inc. with respect to its offering of financially settled products in response to the credit tightness in the energy trading markets.  In addition, our attorneys assist lenders and borrowers in the power industry with the reevaluation and restructuring of existing loan facilities and provide advice regarding the possibility of bankruptcy threatening many industry participants.

Derivatives and Exchange-Traded Commodity Futures

Winston & Strawn regularly counsels clients with respect to transactional and regulatory matters relating to the trading of over the counter energy derivatives and exchange-traded commodity futures, including:

• the preparation and negotiation of ISDA and NAESB documentation
• counseling on trade practice compliance, obtaining CFTC and exchange no-action relief
• obtaining hedge exemptions from exchange speculative position limits, compliance with large trader reporting filing requirements
• analyzing applicable exemptions from Commodity Exchange Act exchange trading requirements