Energy

The electricity industry is constantly evolving, with a continuing abundance of natural gas, decreasing costs of renewable energy and advancements in energy storage, presenting both challenges and opportunities to those entities working within the electricity space. With attorneys that have served in numerous capacities—including in-house counsel, executive positions and within regulatory agencies—Duane Morris attorneys are uniquely positioned to advise clients on the legal, practical and business issues surrounding electricity generation, transmission, distribution, siting, policy, regulation, sale and consumption.

Our experience includes the representation of domestic and international electric generators, battery storage developers, renewable and conventional project developers, regional transmission organizations, private and publicly owned utilities, transmission companies, retail electric providers, independent electric transmission system operators, demand response providers, end users and others.

FERC Experience

Duane Morris has broad experience with FERC proceedings involving wholesale energy markets and electricity transactions. One of our attorneys helped establish the FERC Office of Enforcement and was its first director, and Duane Morris was integrally involved in the creation of the first regional transmission organization (RTO) approved by FERC in 2001 and has served as its counsel in a multitude of issues before FERC and the appellate courts ever since. Our attorneys have unparalleled knowledge of FERC-jurisdictional wholesale energy, capacity and ancillary services markets, as administered by all major RTOs, and have participated in many seminal rulemakings and other proceedings involving open access, RTO markets and governance, generator interconnection, transmission cost allocation and interregional seams issues. We participate in all types of proceedings arising under the Federal Power Act (FPA), the Public Utility Regulatory Policies Act (PURPA), the Energy Policy Act and many other statutes and regulations governing the electricity industry, including applications, complaints, tariff and rate filings, and evidentiary hearings and settlement conferences. To complement our energy markets practice, we assist clients with various FERC aspects of major transactions in the electricity industry, such as FPA Section 203 applications, market-based rate filings, and quality facility (QF) and exempt wholesale generator (EWG) applications.

Duane Morris attorneys also have experience representing clients in the U.S. Courts of Appeals when the FERC orders affecting their matters are appealed, and in other federal and state courts on related matters where FERC may not have primary jurisdiction.

State Regulatory Experience

Duane Morris attorneys have significant experience counseling clients on issues associated with all aspects of state regulation and deregulation, including distributed generation, energy incentives, energy storage, line extensions, interconnection, metering and submetering. Our lawyers handle regulatory proceedings related to rate increases, creation and implementation of competitive electricity and gas markets, ensuring nondiscriminatory rates and cost of service in numerous states across our firm’s footprint. We participate in state regulatory hearings and appeals of hearing decisions, provide client input to state energy legislation and regulations and represent clients in state commission complaint proceedings.

Our clients include distributed energy project developers, retailers of energy and energy services, power authorities, electric and gas marketers to wholesale and retail customers, financial institutions that lend to energy projects and large customers (industrial, commercial, data center, multifamily housing, non-profit, education and healthcare). We represent developers and end users of energy provided from solar, wind, energy storage, fuel cell, natural gas, biofuel and cogeneration projects, as well as investors in those projects, and provide counseling related to the impact of state regulation on those projects and businesses.

Project Finance and Development

Duane Morris provides a full range of legal experience to complete sophisticated, highly structured domestic and international energy project financings and project development. Our energy lawyers have been active in project finance, project development and adaptive re-use transactions for decades, representing public-private partnerships, private owners and governmental entities. We counsel clients engaging in a wide range of industrial, commercial and infrastructure projects, including power generation, waste management, water and mineral resources, air and surface transportation facilities, ports, railroads, airports and other infrastructure projects. Together with the support of environmental, tax, public finance, real estate, securities and insurance lawyers, we deliver an integrated capability to developers, issuers, project lenders, underwriters and governmental/regulatory bodies.

Distributed Energy Resources and Microgrids

Distributed energy resources (DER), including distributed generation such as renewable energy, cogeneration and conventional power facilities, along with energy storage, demand response and energy efficiency, are creating opportunities for businesses and communities to meet their power needs while reducing costs. In addition, DER increasingly have the potential to participate in the wholesale electricity markets, providing another revenue stream to consider when financing such projects. Microgrids provide the benefits of DER together with a degree of resilience that many businesses and communities are seeking today. Nonetheless, DER and microgrid projects still face significant regulatory and commercial challenges. Duane Morris attorneys have the regulatory and commercial acumen to advise developers, utilities, service providers and end users on these complex projects. 

Our attorneys have advised solar developers on behind-the-meter commercial solar, solar-plus-storage and community projects throughout Texas and the Mid-Atlantic; developers and building owners in the Mid-Atlantic on energy efficiency projects; a generation developer on providing microgrid services in response to the wildfires in California; a microgrid developer providing a private distribution network that incorporates solar, cogeneration, battery storage, grid electricity, and potentially other services in order to provide cost effective renewable electricity to a number of end users in a geographically defined area; and a retail electric provider in Texas on the construction of a behind-the-meter gas-fired generator to reduce capacity charges from the incumbent utility and to make energy sales into the wholesale market.

The renewable energy industry has seen virtually unparalleled, explosive growth in the last decade. Technological advances, legislative requirements, governmental incentives, new sources of funding and rising consumer demand has spurred this growth. As this renewable energy landscape has evolved, never has it been more important to have extensive experience working in the renewable sector and the capacity for innovative legal thinking. Both are fundamental to navigating this changing energy landscape and capitalizing on the numerous opportunities in this space.

As wind and solar farms spring up across the country and continue to grow internationally, efforts are also being made to further this innovation through advances in sustainability, grid modernization and distributed generation, with the latter solutions being particularly attractive to developing countries without a developed power grid and the need to reach remote populated areas. Likewise, electric vehicles are becoming ever-present, tapping not only conventional sources of energy but also reaping the benefits of these generation and sustainability advances. In addition, some states and countries are increasingly requiring minimum amounts of power generation from renewable sources, and more companies are turning to renewable energy to achieve their corporate responsibility goals.

Duane Morris attorneys are deeply involved in and committed to the renewable energy industry and energy efficiency markets. This includes representing project developers in the green energy space, such as those developing large, utility scale wind and solar projects, battery storage technologies, biofuels and emerging businesses with innovative energy solutions. Duane Morris serves a diverse constituency in the global energy economy.

Duane Morris attorneys provide strategic legal and business counsel to the entire spectrum of participants in the natural gas, LNG and biogas business cycle. We advise on legal and regulatory challenges in exploration and production, processing, storage, transportation and distribution. We also guide clients through project development, including permitting, project financing and construction, taxation, mergers and acquisitions, and transactional and litigation services. Our lawyers also represent developers, investors and sovereign nations with natural gas, Marcellus Shale, LNG and biogas projects with varying levels of complexity in jurisdictions around the world.

Duane Morris attorneys have been actively involved in LNG terminal certification proceedings for both on-shore and offshore facilities. We represent LNG developers before FERC and the U.S. Coast Guard and United States Maritime Administration (MARAD) in connection with developing new projects and assisting owners and operators of existing LNG terminals. We also help clients with obtaining LNG export/import permits and authorizations from the U.S. Department of Energy and jurisdictional and other determinations from the Pipeline and Hazardous Materials Safety Administration, as well as state and local regulatory agency actions concerning the exportation, importation and transportation of LNG.

In the transactional area, our lawyers have received significant accolades, including The American Lawyer’s “Global Finance Deal of the Year in Project Finance” award for advising a large institutional investor on its $1.3 billion investment in Freeport LNG's $4 billion construction project to build the first two trains of its natural gas liquefaction and LNG loading facility on Quintana Island near Freeport, Texas, and the IFLR’s “Project Finance Deal of the Year 2018” award for a BOT power plant project in Myanmar.

Duane Morris has long served clients in addressing the many legal complexities presented in the oil industry. We regularly advise oil and natural gas companies, including upstream, midstream and downstream, oilfield services companies, including onshore and offshore, and other industry participants in transactional, regulatory and litigation matters across all of the firm’s practice areas.

Duane Morris attorneys have extensive experience advising public and private companies on a wide range of transactions, including mergers and acquisitions, divestitures, financings, joint ventures, public offerings and private placements of debt and equity securities, investments, restructurings and cross-border transactions. We help clients in a variety of corporate acquisitions, including the leasing, purchase and sale of undeveloped and producing properties, gathering and processing systems, pipelines and other significant assets as well as due diligence, bids and related financing issues. Our attorneys draw upon a combination of legal and industry experience to represent clients in regulatory proceedings before state and federal agencies and international forums.

Throughout the entire business cycle, Duane Morris attorneys have extensive experience assisting clients in matters concerning oil exploration, facility construction, distribution, refining, import/export, financing and related transactions. We have assisted clients in the drafting and negotiation of study, bidding and operating groups and other forms of association for the conduct of domestic and international oil and gas operations. We also represent clients before governmental entities around the globe with the bidding, negotiation and performance of exploration and production contracts.

Representation of hydropower owners involves the intersection of multiple disciplines, including energy, water, environmental, financial, political, regulatory and litigation, and the bilateral and multilateral negotiations attendant to these disciplines. Duane Morris lawyers have worked with and represented hydropower owners for more than 40 years. Our attorneys regularly practice before FERC and are intimately familiar with how the Commission functions. One of our attorneys is the former head of enforcement at the FERC. This experience, coupled with our years of dealing with water systems, fishery protection agencies, public and private entity owners and stakeholder processes, positions our attorneys to comprehensively represent parties in hydropower proceedings.

Duane Morris attorneys have significant global experience with the engineering, procurement and construction (EPC) process to guide our energy industry clients as they develop, design and construct energy infrastructure projects. Beginning with preparation or responding to requests for proposals (RFP) to project close-out documentation, Duane Morris attorneys are involved in all aspects of the transactional or development documentation. In addition, Duane Morris attorneys are regularly involved in the dispute resolution process on behalf of their energy industry clients, through mediation, arbitration, or litigation.  Examples of Duane Morris’ service include:

• Project development and finance documentation
• Project risk evaluation
• Project delivery system evaluations and recommendations
• EPC contract documents, including:
  • Project RFP preparation or response
  • EPC “turnkey” contract documents
  • Design-build agreements
  • Design/bid/build contract documents
  • Design professional agreements
  • Construction management agreements
  • Subcontracts
  • Purchase orders
  • Bid package preparation
  • Development of insurance criteria or Owner Controlled Insurance Programs/Contractor Controlled Insurance Programs (OCIPs/CCIPs)
  • Project payment and performance bonds
• Insurance and bond programs
• Government contracting processes
• Assistance with the development and documentation of project administration/project controls processes
• Condemnation
• Documentation of joint ventures
• Teaming agreements
• Public private partnerships
• Claims and dispute resolution
  • All manner of project work-out issues to avoid disputes
  • Delay, impact, disruption, lost productivity and interference claims
  • Defective design claims
  • Defective construction claims and warranty claims
  • Project completion and close-out issues
  • Insolvency or bankruptcy
  • Payment claims
  • Termination and default issues
  • Disputed change orders
  • Cost escalation
• Mechanics liens, bond claims and Miller Act (or local equivalent) issues
• International arbitration
• Project start-up, testing and commissioning

When corporations, municipalities, agencies and private individuals need advice on environmental matters, Duane Morris lawyers are often the advisors and advocates turned to first. Members of our environmental group represent clients with project development, regulatory compliance, enforcement proceedings, litigation and various transaction-related needs. Our environmental lawyers have been involved in multibillion-dollar transactions and litigated significant cases on complex regulatory issues before federal and state courts and administrative agencies. Duane Morris lawyers have a depth of experience in environmental defense matters, as well as internal investigations and criminal grand jury proceedings.

Our attorneys also assist federal and state legislators, regulators and agencies, both directly and on behalf of clients, in the formation and implementation of environmental and natural resource laws, regulations and policy. Duane Morris attorneys have been members of, and frequently deal with, numerous agencies, committees, commissions and associations that impact our clients regarding environmental matters. Further, our attorneys have served in the U.S. Environmental Protection Agency, Federal Energy Regulatory Commission, various state and local agencies and have had signification responsibilities with the American Bar Association and state bar associations.

Duane Morris’ environmental lawyers have represented clients on matters arising under an array of federal laws and their state equivalents, including, among others, the Clean Air Act (CAA), Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA or Superfund), Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA), National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Toxic Substances Control Act (TSCA) and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Duane Morris’ lawyers also have particular experience with in the laws and regulations governing water rights and water supplies.

With wide-ranging experience, Duane Morris’ lawyers have, for example, served as lead counsel for potentially responsible party (PRP) groups in multiparty Superfund litigation; defended clients in civil and criminal CAA, CWA and ESA investigation and enforcement proceedings; represented clients in CAA Title V permit proceedings; assisted clients in obtaining permits pursuant to the CWA and CAA; advised current and prospective landowners on issues concerning protected wetlands; assisted clients with the development of endangered species mitigation banks and habitat conservation plans; represented parties in proceedings concerning hydroelectric relicensing and CWA 401 certifications; and helped develop and defend, as well as challenge, NEPA and ESA documents such as environmental impact statements and biological opinions, respectively.

Our clients include chemical, electronics, oil, pharmaceutical and consumer products companies; refineries; environmental consultants and engineers; water districts; investor-owned and municipal electric utilities; large energy users; real estate and financial institutions; multistate and international operating facilities; private water supply developers; agricultural interests; sanitary and utility districts; joint power authorities; industry associations; landowners; and national, state and local governments and agencies.

On behalf of these clients, our attorneys regularly participate in the development and implementation of large-scale programs, such as major real estate commercial and industrial sites, river and wetlands restoration and hydroelectric relicensing. Our attorneys also have been involved in developing and leading cutting-edge challenges to various CAA enforcement matters, including regulatory compliance and challenges.

As seasoned practitioners, our attorneys are often asked to solve the largest and most intricate compliance and regulatory problems. We defend clients in litigation matters through trial and on appeal.

Duane Morris lawyers are knowledgeable and experienced in the international arena, including environmental regulations that affect the operations of cross-border businesses and lending institutions.