Crowell & Moring's Climate Change, Environmental Markets & Sustainable Development practice is at the forefront of advising businesses and industries to act on or respond to the evolving array of climate change law and policy regimes emerging in the U.S. and around the world. Our team of professionals covers the waterfront of energy, environmental, market, and corporate transactional issues implicated by climate change-related policies and a transition to a low carbon economy, and we are uniquely capable of providing the full range of legal, transactional, and strategic risk management services necessary to achieve client objectives.
Our professionals have held top-level positions in the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC), the Office of the U.S. Trade Representative (USTR), and the U.S. Department of the Interior, and we are recognized leaders in international climate policy, environmental markets, climate risk management, and climate finance, with team members advising or sitting on boards and private sector advisory panels to several clean energy, international emission trading, and climate markets and investment organizations.
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Greenhouse Gas (GHG) Regulatory Counseling and Litigation
Our team has advised businesses and industry associations across economic sectors on federal, subnational, and international climate change policies, as well as energy and environmental regulations, representing them in public comments on GHG matters and litigation.
We also help our clients address energy-related regulatory and commercial risks implicated by climate change and GHG regulation. Deeply familiar with the Clean Air Act (CAA) regulations on mobile and stationary sources, GHG permitting, and the application of the National Environmental Policy Act (NEPA), we are also recognized leaders in energy law and markets. We are directly involved at the state level, advising clients on the intersection between regulated and deregulated energy markets and the rapidly evolving climate policies and incentives on clean energy, green infrastructure, energy efficiency, emissions offsets, and sustainable land use.
Our professionals have advised companies, clean energy development firms, utilities, electric cooperatives, and governments on:
- energy regulation,
- carbon pricing mechanisms,
- climate finance,
- renewable fuel standard regulations,
- state renewable energy portfolio standards and credit trading,
- energy efficiency financings,
- carbon capture and storage,
- avoided deforestation and conservation finance, and
- environmental commodity trading markets and rules and standards.
Corporate Transactions: The Business of Climate Change
We assist companies in addressing the full sweep of their obligations (or corporate policies) to GHG emissions and help them take advantage of market and financing opportunities when appropriate. We assist companies in pursuing investment and transactional opportunities in low carbon projects and technologies; counsel them on matters relating to building, owning, and operating clean energy and water projects; and help them with accessing climate-based financing incentives provided by state green banks, the federal government, and multilateral development institutions.
We have represented clients in their pursuit of clean energy projects and investments, renewable energy purchase agreements (wind, biogasification, solar, waste-to-energy), energy and environmental market trading opportunities, innovative climate financing instruments and public sector financial incentives, green bond transactions, trade-related environmental agreements and investment treaties, public-private partnerships, and advanced energy technology commercialization.
Drawing upon our deep energy and environmental regulatory expertise, including knowledge gained within government, we provide integrated corporate, finance, and transactional representation to clients pursuing commercial transaction and investment opportunities related to:
- Clean energy and energy efficiency
- Environmental market trading
- Securities and financial accounting
- Real estate, resource, and land use transactions
- Clean technology investing
- Corporate sustainability and carbon management
- Tax and other public sector financial incentives
- Transportation and supply chain management
- Green infrastructure
- International trade and investment
Regulatory Counseling & Litigation
- Advised a large multinational company in the development and drafting of public comments on EPA's Clean Power Plan to regulate GHG emissions from existing power plants in the U.S. under the CAA.
- Defended natural resource companies in Comer I class action alleging that GHG emissions caused the intensification of Hurricane Katrina and damage to Mississippi property owners. We won dismissal in district court on standing and political question grounds. The Fifth Circuit dismissed plaintiffs' appeal and the U.S. Supreme Court denied plaintiffs' writ of mandamus. We also defended coal companies in Comer II class action asserting similar causes of action. The trial court again dismissed plaintiffs' claims at the motion to dismiss stage and the Fifth Circuit affirmed dismissal on res judicata grounds.
- Providing ongoing counsel to several clients regarding new GHG permitting requirements, including assistance in obtaining CAA permits for large industrial facilities.
- Providing regulatory analysis and assistance to several companies regarding obligations to report emissions under new GHG reporting rules issued by EPA.
- Drafting regulatory comments for several major trade associations and U.S. companies concerning EPA's efforts to regulate GHGs under the CAA, including comments filed with the agency in anticipation of litigation on the "Tailoring" and "Timing" rules, 2009 EPA Endangerment Finding.
- Representing six national trade associations in defending the ESA section 4(d) rule for the polar bear.
- Acting as regulatory counsel to a large vehicle parts manufacturer regarding the proposal, finalization, and implementation of new CAA regulations to control GHGs from medium- and heavy-duty vehicles.
- Providing legal analysis to a trade association regarding EPA's ability to exclude GHGs emitted from biogenic sources from CAA permitting requirements.
- Providing legislative analysis and drafting assistance to numerous clients regarding measures to impose "cap and trade" regulation of GHGs from electric generation, energy production, and industrial sources, as well as other CAA GHG regulations.
- Assisting clients with the design, development, and implementation of multi-tiered compliance strategies to address local, state, and federal regulations involving GHG emissions, clean energy finance, water, renewable fuel, sustainable development, and investing.
- Assisting companies in conducting self-assessments of their carbon profile, assessing risks and opportunities, and advising on existing or potential climate regulatory regimes.
- Providing assessments of companies involved in mergers and acquisitions, or in financing of companies where carbon profile is a concern.
General Corporate and Transactional
- Represented a development firm in the design and development of a $150 million loan guarantee from the USAID to a private equity fund for its avoided deforestation and carbon finance investments.
- Advising a large natural resource company on allocation of Section 45Q tax incentives for mass capture and storage of carbon dioxide for enhanced-oil recovery purposes.
- Act as General Counsel to the Technical Advisory Council of the Gold Standard Foundation, a leading voluntary carbon market standard.
- Represent one of the largest renewable energy "YieldCo" investment companies in their acquisition of clean energy assets.
- Acted as climate change counsel to the Regents of the University of California (UC) in the negotiation of a power purchase agreement (PPA) to procure solar energy. The transaction is the largest non-utility purchase of solar energy in the U.S. We also advised UC on implementation of their carbon neutrality policies and assisted in the negotiation of energy hedging arrangements, resource adequacy procurements, and several bundled and unbundled REC purchase transactions.
- Advising private equity and hedge fund on developments of the Green Climate Fund.
- Represented a consortium of The George Washington University, The George Washington University Hospital, and American University in the negotiation of a PPA to purchase the output of a 52 MW solar facility owned by Duke Energy Renewables. The transaction is the second largest non-utility purchase of solar energy in the U.S., and the largest solar PV project in the eastern U.S.
- Counsel clients on national and subnational environmental market rules and programs, including cap-and-trade programs, renewable energy portfolio standards, feed-in tariffs, energy efficiency utility programs, and organized energy market design.
- Assisted clients design and execute transactions for the production, sale, and purchase of natural resources, electric energy and natural gas, carbon credits (CCAs, VCUs, VERs) and renewable energy credits (RECs, SRECs, ORECs), and other tradable environmental commodities, as well as related hedging and other derivative transactions domestically and internationally.
- Advising investors and companies on emerging public sector climate financing instruments and credit enhancements available through development finance institutions, federal agencies, state green banks, and revenue authorities for investments in clean energy, water, and avoided deforestation projects.
- Advising public companies in the preparation of financial and physical risk disclosure materials related to energy, climate change, and water risks that are likely to result in material effects on liquidity, capital resources, revenue, or net income.
- Representing public companies in responding to shareholder proposals dealing with climate change topics, conducting dialogues with proponents, and successfully managing the Securities and Exchange Commission's process regarding such proposals.
- Representing venture and growth equity funds, start-up companies, and privately-held clean technology and sustainable resource firms on market, regulatory risk and asset diligence, capital raising, fund formation, corporate finance, and intellectual property transactions.