For several years, Norris McLaughlin & Marcus has had a cross-disciplinary group actively involved in all aspects of solar energy. Our Solar Energy Group includes attorneys from our environmental, utility, real estate and land use, construction, business, taxation, insurance, litigation, and intellectual property practice areas. The Solar Energy Group focuses on issues pertaining to solar technology, manufacturing, financing, installation and operations. Sample representations and undertakings include the following:
Representing Hosts
- Some clients prefer to own the system outright and recognize all of the benefits associated with a solar system, including the energy itself, all available tax credits or direct cash grants, and the income available from selling Solar Renewable Energy Credits, or SRECs. In these matters, our focus is on ensuring that the contract documents clearly spell out the obligations of the general contractor and any subcontractors, including equipment suppliers. If the purchase is being financed, we also represent the client in reviewing, negotiating and finalizing loan documents. A frequent issue is clarifying the relative priorities of the senior lender holding a mortgage on the property where the system will be located versus the separate lender advancing the funds to acquire the system.
- Other clients are not prepared to incur the upfront capital costs for a solar system. In these cases, we often negotiate a so-called Power Purchase Agreement, where the client agrees to purchase the power from the developer for a price that is favorable relative to its existing utility costs, but the developer retains ownership of the system and the related tax and SREC benefits.
- Still other clients choose to lease the panels from the developer, which can give them “free” energy plus a predictable monthly payment, rather than a payment that varies with the amount of power purchased under a PPA.
- Where the host is the tenant at the site of the proposed installation, countless issues arise under the existing lease and the rights of the landlord. Our Commercial Real Estate Group has become expert in issues related to “green leasing,” addressing these issues both at the time of lease negotiation and in connection with projects to be pursued when a lease is already in place.
Representing Developers
- We represent several developers who offer “turnkey” solutions to potential hosts. In these engagements, in addition to the usual contract issues that need to be resolved with the host, attorneys in our Environmental and Land Use Groups are often involved in the permit approval process, including zoning and land use issues. While most contracts provide for progress payments from hosts that enable the developers to obtain the necessary panels and other equipment from manufacturers without the need for additional third-party financing, we have also represented developers in obtaining lines of credit that enable them to acquire such equipment at more favorable prices, without any implicit financing cost built into the sales price.
- Some, but not all of our developer clients, are also willing to offer PPAs to hosts, in which case the developer must usually obtain permanent financing to pay for the system over time, using the proceeds from the sale of the solar energy plus the sale of the SRECs to repay the loan.
- Some of the specialized issues we have needed to address for developers include the applicability of “prevailing wage” laws to solar installations and public bidding issues related to solar projects for public entities.
Representing Lenders
We have represented a number of banks in connection with loans for solar energy projects. These loans have included both permanent financing and also revolving lines of credit intended to cover the gap between the time when the equipment must be paid for and the time when payment is received from a host.
Representing Manufacturers
The attorneys in the Solar Energy Group represent a major developer/manufacturer of solar powered message boards that are used at road construction projects and elsewhere. We handle the firm’s IP (intellectual property), contract and general business needs. We also represent a specialty film company in its patent and licensing matters. Among the primary products it produces are backing sheets and encapsulating vessels for photovoltaic cells.
Seminars and Publications
Members of the Solar Energy Group at Norris McLaughlin & Marcus, P.A. have lectured at seminars and written articles on the following topics related to solar energy:
- Purchase Power Agreements
- State and federal incentives for solar
- Legislative developments affecting solar
- Landlord-tenant issues in solar developments
