Regulatory & Government Relations
Energy
Any of the range of renewable and clean-tech sources of energy that generate electricity will also generate issues of regulation by the Federal Energy Regulatory Commission (FERC). Sellers and buyers of such power will need to assure that they have access to the transmission grid and the necessary interconnect arrangements in order to deliver it to the market, as well as the necessary permits to buy and sell the power. They will also need assistance in assuring that they are structured so as to minimize regulatory burdens while maintaining compliance with all applicable FERC requirements such as data collection, reporting and standards of conduct. All of these are constantly changing, and our clients benefit from our ability to keep them up-to-date with developing public policy and assure that they are optimizing their opportunities under the available programs. Hydroelectric projects are also subject to FERC’s jurisdiction. These are all areas in which Crowell & Moring’s energy lawyers have decades of experience.
Environment and Natural Resources and Renewable Energy
By their nature, renewable energy initiatives implicate a wide range of environmental and natural resource issues. Wind farms, solar energy fields, biofuel facilities, and other alternative energy projects involve a complex web of land use planning and media-specific, multi-jurisdictional permitting. These projects, and associated transmission lines and ancillary facilities, are frequently challenged by community organizations concerned about aesthetic and other impacts on landscapes, watersheds, and flora and fauna. For example, wind farms are often delayed over their potential effect on endangered species, eagles and raptors, migratory birds, and bats. Building a large-scale renewable energy project therefore requires careful strategic planning and community outreach initiatives.
Crowell & Moring’s Environment and Natural Resources lawyers can guide clients through the complex framework of legal, scientific, and policy issues surrounding renewable energy projects. Our lawyers have built a national reputation in such areas as environmental planning, endangered species regulation, federal land use, water and air quality, climate change, nanotechnology, brownfield redevelopment, and litigation.
We also have extensive experience working with Congress, the environmental and natural resource agencies, and courts developing, negotiating, and litigating environmental and natural resources legislation and rules on behalf of our clients. We are proud of our commitment to client service and our creative approach to problem solving.
The following is a brief description of several of our relevant practice specialties:
Climate Change
Crowell & Moring environmental lawyers are actively helping guide our clients through the fast-changing realities of a carbon-constrained world. We have advised clients on a myriad of climate change issues and potential liability, including carbon regulation and policy, sequestration, and the application of the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) to carbon emissions from large-scale power plants and other facilities. We have also defended major natural resource companies involved in global warming tort litigation. Our partners with climate change expertise have served as Deputy Administrator, Chief of Staff, and Deputy General Counsel in the U.S. Environmental Protection Agency (EPA).
Endangered Species
Our lawyers are at the forefront of shaping the law under the ESA, the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), and other wildlife protection laws. In particular, we have represented clients in all aspects of the ESA, including listing and delisting endangered and threatened species, designating critical habitat, recovery planning and species reintroductions, habitat conservation planning, negotiating incidental take permits, and consulting with the U.S. Fish and Wildlife Service and National Marine Fisheries Service on federal permits and other actions. We have also litigated ESA issues in all federal circuit courts of appeal and before the U.S. Supreme Court. One of our partners is serving as an industry representative on the Secretary of the Interior’s Federal Wind Turbine Guidelines Advisory Committee.
Environmental Impacts and Historic Preservation
Our lawyers are experienced in guiding land developers, mining and timber companies, telecommunications providers, renewable energy firms, and other clients through the complex environmental planning requirements of NEPA and the National Historic Preservation Act. We also defend those planning efforts when they are challenged by citizen groups, neighboring landowners, and other entities in court.
Federal Lands
Because one-third of the land base in the United States is owned by the federal government, we assist a wide range of resource developers in obtaining access to those federal lands. We also frequently defend their interests in administrative appeals and litigation. Our efforts have included litigating with and against, and appearing before, the federal land management agencies to secure favorable resource planning policies and decisions under the Federal Land Policy and Management Act (FLPMA), the National Forest Management Act (NFMA), the Alaska National Interest Lands Conservation Act (ANLICA), the Healthy Forests Restoration Act of 2003, the Wild and Scenic Rivers Act, the Wilderness Act, and NEPA. We have performed the same tasks in securing access for clients to resources by sale, lease, permit, or land exchange under FLPMA, NFMA, the General Mining Law, the Mineral Leasing Act, the Onshore Oil and Gas Leasing Act, the Outer Continental Shelf Lands Act, the Submerged Lands Act, and other federal land laws. Among our Supreme Court victories concerning federal land issues is the principal federal land planning case that curtailed the ability for activists to challenge federal land management plans. One of our partners, while serving as counsel to the Senate Energy and Natural Resources Committee, was the principal staff member in charge of drafting FLPMA, NFMA, and ANILCA. Three of our partners have served in the Department of the Interior as Deputy Under Secretary and as attorney-advisors in the Solicitor’s Office.
Water Quality
Our water quality practice encompasses administrative and judicial enforcement proceedings, citizen suits, legislative efforts, participation in rulemakings, and judicial challenges to those rules. Our lawyers have advised numerous developers, trade associations, and other clients on point source discharge and storm water permitting issues, wetland development questions, and complex jurisdictional matters involving the scope of “navigable waters” and the exemption from permitting for farming, silviculture, and ranching activities. Two of our partners have served as Associate General Counsel for Water and Assistant Administrator for Solid Waste and Emergency Response in EPA.
Labor & Employment
Our Labor & Employment lawyers help companies meet the challenges of the modern workplace, both in the United States and in Europe. Our experience includes litigation and counseling related to federal and state wage-and-hour laws, discrimination laws, union organizing campaigns, disputes over the interpretation of collective bargaining agreements, strikes, picketing, and boycotts. We regularly represent clients in class action wage and hour and EEO litigations, as well as in ERISA litigations. We also assist clients in disputes involving trade secrets, non-competition agreements, executive compensation, and the drafting and implementation of personnel policies and procedures. Our extensive experience with employers in the engineering, construction, transportation and manufacturing industries has translated into an understanding of the labor and employment issues facing our renewable energy clients.
With the Green Jobs movement a focal point of the new Administration, our clients in the renewable energies industry will be faced with important choices about how to structure their workforce and which “green energy” incentives make long-term business sense. In making these decisions, employers must consider the complex web of existing labor and employment laws and regulations, as well as new and emerging laws specific to “green energy.” And with sweeping changes to the nation’s labor laws on the horizon and a White House more sympathetic to organized labor, employers will face new challenges relating to unionization, particularly in emerging industries or businesses that complement existing lines of business. With our breadth of traditional labor law experience, we stand ready to assist clients as they consider their options in this changed landscape.
Government Contracts
Due to recent laws and policy changes, the U.S. government is now required to reduce its use of fossil fuels and significantly increase its utilization of renewable energy sources. For example, the Energy Independence and Security Act of 2007 requires the government to reduce fossil fuel usage in new or renovated buildings by 55% by 2010 and by 100% by 2030. Executive Order 13423, issued in January 2007, requires agencies to improve energy efficiency, reduce greenhouse gas emissions, and ensure that at least half of the statutorily required renewable energy consumed by the government comes from new renewable sources. Thus, the U.S. government’s participation in the renewable energy market will likely increase significantly, presenting companies in the renewable energy industry with lucrative opportunities to sell their products and services in the government marketplace.
Contracting with the federal and state governments presents unique challenges and risks. Crowell & Moring offers unparalleled depth and breadth of experience in assisting clients to navigate the laws and regulations applicable to government contracts. Our government contract attorneys have extensive experience with Department of Energy contracts as well as with all other federal agency contracting and grant programs. We currently provide counseling to a number of renewable energy clients on government contract issues, including review of contracts, assistance with technology investment agreements, guidance on intellectual property rules specific to government contracting, advice on cost and export control rules, and counseling on the government’s “green” purchasing regulations and initiatives. (See "The Greening of Government Procurement" [PDF]) We have also litigated on behalf of renewable energy clients on issues such as government contract administration issues, bid protests, and breach of licensing agreements.
Public Policy and Government Affairs
Renewable energy is at the forefront of the policy debate in both state and federal governments. Recent high energy prices, concerns over energy security, and the desire to promote rural business and to reduce air pollutant and greenhouse gas emissions have driven congressional interest in promoting greater use of alternatives to fossil fuels. This in turn has produced a major increase in development grants, loan guarantees, and partnership opportunities between the private sector and the federal government.
Crowell & Moring’s public policy group provides technical, policy development, and public affairs services to renewable energy clients seeking government relations, consulting, and lobbying assistance before the U.S. Congress and federal agencies, including the departments of Agriculture, Energy, and Interior, and the Environmental Protection Agency. Our team of former congressional staff and Administration officials, scientists, and economists knows how Congress and the Administration work and know how to communicate effectively the needs of our renewable energy clients to decision makers. The collective expertise of our attorneys and consultants allows us to translate the technical aspects of regulation and policy in the renewable energy industry into easily understood formats for use by clients before Congress, the Executive Branch, and the media.
Working with the Department of Energy’s Office of Energy Efficiency and Renewable Energy, our Public Policy Group can assist inventors and developers with funding for energy efficiency and renewable energy technologies. We also will work with clients to secure loan guarantees from the Department of Energy to enable project developers to bridge the financing gap from pilot and demonstration projects to full commercially viable projects that employ new or significantly improved energy technologies. Our Public Policy Group also works with clients before the departments of Agriculture, Energy, and Transportation to increase their partnerships with private industry for the development and use of renewable fuels.
Litigation
Crowell & Moring attorneys routinely counsel and represent energy clients in litigation before administrative agencies, state and federal courts, and domestic and international arbitral bodies. We represent a wide range of energy industry clients with major interests in issues decided by the Federal Energy Regulatory Commission (FERC) and other administrative agencies which have also led to a very active appellate practice in the United States Court of Appeals for the District of Columbia Circuit and other circuits. In addition, our litigation attorneys are experienced in the area of complex commercial disputes and have handled a variety of high-stakes commercial and business tort cases involving contract, business fraud, corporate governance, property rights, and commercial real estate disputes. We have extensive experience with class actions, multi-district actions, and multi-party proceedings in both federal and state courts throughout the country as well as a thriving alternative dispute resolution practice involving both domestic and international arbitrations.