Prior mortgages are typical due diligence items in the real estate title review process for renewable energy projects. Resolving issues related to prior mortgages is key to establishing a title policy that is satisfactory to lenders and investors while also protecting the project company’s real property assets. The following serves as an introduction to prior mortgages and the mechanisms for resolving them, but every project is unique, so the path forward will necessarily vary from project to project. While the process can be tricky, there are some key strategies that can keep the title curative and development process on track. Continue Reading Resolving Prior Mortgage Issues on Greenfield Renewable Energy Projects

During the course of any acquisition of a renewable energy project, the parties may be required to obtain consents from certain of the counterparties to the project contracts. This will be the case if a project contract includes a clause that requires the consent of the counterparty for (i) the assignment of such project contract, and/or (ii) the direct or indirect change of control of a party to the contract. The procurement of such consents can be time intensive, cause delays to a project sale, and expose a project to additional obligations if not addressed from the outset. For renewable energy projects, often times, major project contracts (e.g., revenue agreements, interconnection agreements, equipment supply agreements, etc.) include anti-assignment and/or change of control clauses. Continue Reading M&A Time and Cost-Saving Measures: Third Party Consents in Project Development

In the weeks that followed a ransomware attack on a domestic pipeline company, the federal government’s efforts to shore up the cybersecurity posture of America’s critical infrastructure and supply chains, including the oil and gas industry, have garnered increased attention.  Historically, the oil and gas sector has not been subject to mandatory cybersecurity regulations, but rather was encouraged to follow voluntary security guidelines that were initially published by the Transportation Security Administration (TSA) in 2011 and revised in 2018. Yet, the industry sector’s geographic size, number of operators/stakeholders within the sector, and its importance to the national economy make the oil and gas industry an attractive target for cyberattacks.

Each of these factors begs the question whether voluntary cybersecurity measures are sufficient to protect this critical infrastructure component? Based on the TSA’s decision to publish the very first Pipeline Security Directive (“Directive”) three weeks after Colonial Pipeline was victimized by a ransomware attack, the answer to this rhetorical question appears to be an emphatic “No.” Continue Reading Is the TSA Security Directive A Harbinger of Oil and Gas Cybersecurity Regulations?

Late last month, the Federal Courts issued two major rulings involving certificates of public convenience and necessity for natural gas pipelines issued by the Federal Energy Regulatory Commission.  While a decision by the Supreme Court was a victory for pipeline companies, a decision by the DC Circuit in another FERC case could have important impacts on the standards that pipeline companies must meet in order to demonstrate need for their proposed pipeline project. Continue Reading Federal Courts Issue a Mixed Bag of Decisions on Natural Gas Pipeline Permitting

Read the article here.

Senior Associate Megan McLean has published “Biden Administration Promises to Double Down on Environmental Justice” in Rock Products Magazine. 

In the article, Megan outlines President Biden’s stance on environmental justice, the actions the EPA is taking to address environmental justice, and what companies need to do to mitigate foreseeable risks.

Read the article here.

Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.

In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce alleged violations of the Surface Mining Control and Reclamation Act (SMCRA) where the surface coal mine’s discharges were covered by a permit issued under the Clean Water Act (CWA) and SMCRA.

Read the article here.

After Winter Storm Uri devastated the ERCOT grid, calls for industry reform rang out across the state of Texas. For the past few months, public hearings and floor debates have considered wide-ranging proposals to harden the ERCOT system against extreme weather events and address the financial consequences of the storm. The Legislature considered numerous bills dealing with issues such as energy and ancillary services repricing, market rules and price formation, generation weatherization, ERCOT and Texas Public Utility Commission (“PUCT”) reform, debt securitization, and the appropriate role and accountability of renewable resources in securing reliability of the grid. Below we provide an overview of the most significant energy legislation proposed during the recent Texas legislative session, both related and unrelated to Winter Storm Uri fallout. The Legislature passed bills that will affect all segments of the Texas energy economy, which collectively will prompt significant change in the years ahead. We have described bills that “passed” as those that have been enrolled or have already been signed into law by the Governor (Bills that have an asterisk in this article have been signed by the Governor.). We note that the veto period extends for 20 days post-session, which ended May 31st , so as of this writing it remains possible the Governor may veto some of these bills, though we have no indication he intends to do so. We will update this post after the veto period expires to note any such vetoes. Continue Reading A Legislative Session in Review: Taking a Look at Key Energy Bills that Did (and Did Not) Pass During the 87th Regular Session