renewable energy development

Last week’s blog post on NEPA and renewable energy development discussed how NEPA intersects with legal challenges brought against wind and solar projects.  On March 9, 2022, concerned residents from the Town of East Hampton, New York filed suit to overturn the Bureau of Ocean Energy Management’s (BOEM) and Army Corps of Engineers’ (Corps) approval of the South Fork Wind Farm Project (South Fork Project).  In Mahoney v. Dept. of Interior, No. 2:22-cv-1305, plaintiffs allege violations of the National Environmental Policy Act, Clean Water Act, and Outer Continental Shelf Leasing Act by BOEM and the Corps.
Continue Reading Property Owners Lodge a NEPA Challenge to the South Fork Offshore Wind Farm Project

2021 witnessed a new but familiar competition among stakeholders for the use and enjoyment of the Outer Continental Shelf.  Last year, interested parties initiated five lawsuits against the first federally approved offshore wind farm, Vineyard Wind I (located off the coast of Nantucket).  And 2022 has so far continued the trend with a new challenge to the Bureau of Ocean Energy Management’s (BOEM) designation of Wind Energy Areas in the New York Bight in late January.  These legal challenges echo the arguments marshaled in numerous lawsuits across the Nation to delay or prevent oil and gas development on public lands.  Developers seeking to participate in the energy transition can learn from the experience of oil and gas development on federal lands.
Continue Reading Legal Challenges to Renewable Energy Development, and How NEPA Can Help

Farm leases are a common occurrence on land being developed for solar and wind energy projects, due to the size and rural nature of land sought for development. While title searches will discover written leases that are made of record with the county clerk, farm leases are often verbal “handshake” agreements, meaning they go undetected during a standard title search. It is always recommended to conduct a site visit and inquire as to the existence of any grazing or crop operations when entering into a real estate contract for land intended for development. If a farm tenant is leasing a portion of the project property, such lease may need to be terminated, particularly in the context of a solar energy project that will require more surface use of the land.
Continue Reading Terminating Oral Farm Leases

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

As more renewable energy projects are being developed across the United States, the number of projects in areas that contain active oil and gas and mining operations continues to rise. In the beginning stages of greenfield development projects, the oil and gas and mining operations affecting parcels within the site plan is sometimes overlooked, and if not addressed, these types of interests and operations can cause significant delays and costs when developing and financing a new project. However, some initial research and due diligence at the beginning of a greenfield development project can usually protect the project from these types of issues and costs and assure the project can stay on schedule and budget.
Continue Reading A Time and Cost Saving Measure: Researching Oil and Gas and Mining Operations During the Beginning Stages of Greenfield Renewable Energy Development Projects

As greenfield development continues to grow, the title industry is facing increasing demand resulting in higher price tags and longer turnaround time for early stage title work. While it may have been common practice to wait until nearly all site control agreements were complete and a close-to-final site plan was in hand before requesting title commitments, this approach is no longer ideal.
Continue Reading Early Engagement with Title Companies Key to Successful Greenfield Development