Background - Practices (Details)

Infrastructure

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The United States must implement broad infrastructure reform in the near-term, to help lift the country out of an economic recession, and over the long-term, to grow the next generation of the U.S. economy and remain competitive with other nations around the world. And indeed, government interest in infrastructure funding is intensifying. Crowell & Moring is actively engaged on a variety of legislative and regulatory fronts to assess what infrastructure will look like and advise clients can how they can both contribute to and benefit from the investment and reform initiatives that are underway.

We advise U.S. and international market participants, including sponsors, developers, contractors, equipment suppliers, investors, lenders, and governments involved in complex infrastructure projects. 

Our cross-disciplinary team helps clients to:

  • Shape, anticipate and realize opportunities;
  • Engage with federal and state actors;
  • Advise on government procurement and regulatory approvals;
  • Grapple with the full range of legal and policy issues that often accompany such projects, in order to mitigate risk on the front end and on the back end; and
  • Successfully navigate disputes, through negotiation, litigation or arbitration, that inevitably accompany major infrastructure projects around the world.

The team helps clients track new laws and policies affecting infrastructure, as well as understand the complex requirements and challenges of an infrastructure project, with particular focus on contract negotiations, financing, transaction structuring, and regulatory approvals. The team includes professionals from our Corporate, Government Contracts, Government Affairs, Energy, Environmental, Litigation, and International Dispute Resolution (IDR) practices, who bring diverse infrastructure and project finance experience, including with public-private partnerships. 

Project Development

Our attorneys have guided clients through the transactional aspects of large infrastructure projects across the United States, and in Europe, Canada, the Middle East, and Latin America. This work encompasses all aspects of infrastructure, including project finance, secondary market acquisitions, and ownership, and has entailed advising parties across the spectrum: developers, project sponsors, infrastructure funds, government bodies, lenders, contractors, and operators.

Our team has decades of experience with public-private partnerships, counseling both privately owned and publicly traded businesses on projects that create, develop, and expand a broad range of critical infrastructure and services, including airport and aviation facilities, highways, railways and rail corridors, bridges, tunnels, utilities, energy and natural gas generation and distribution, military housing and facilities, stadiums and mixed-use facilities, health care, housing, and schools and universities, among many other engagements. We advise clients in the state, federal, and international markets with regard to these joint initiatives.

We are particularly strong in the energy sector, including with regard to sustainable infrastructure development. Our team includes a partner who served as Chair of the California Electricity Oversight Board and the California Green Team, and a member of the California Electric Operation and Maintenance Board and the California ISO Board of Governors. We have advised on numerous greenfield manufacturing facility and energy projects involving assignment to evaluate solar, transmission, and wind. We have advised developers on land use, environmental, regulatory, and other issues relating the planning and development of the projects from their inception through their ultimate operation or sale. We have helped to guide energy infrastructure funds and developer clients on the delivery and funding of various renewable energy facilities, including RDF-based waste-to-energy facilities, CHP and biomass installations, and we have helped clients achieve their goals related to microgrids, federal and state demand response programs, and renewable power, advising those who want to build or buy renewable power sources to execute those projects in compliance with existing laws and energy policies.

Our work includes:

  • Serving as project counsel to Poseidon Water in the development and financing of a 50 MGD desalination facility in Carlsbad, California in a transaction identified by Bloomberg as the largest U.S. project financing of the year and by Infrastructure Investor as North American Infrastructure Deal of the Year.
  • Advising on wind, solar, hydroelectric, oil and gas, and other infrastructure projects in Argentina, Barbados, Bolivia, Brazil, Guatemala, Mexico, and Peru.
  • Representing NRG Yield, Inc. in acquisitions of 1,355 MW of gas, wind, and solar generating facilities from NRG Energy Inc. for an aggregate of $829 million in cash plus assumed project debt of $1.4 billion.
  • Advising a joint venture on the development, finance, and construction of a waste tyre processing facility in the United Kingdom.
  • Advising on the development and construction of a major hydrogen power facility in the United Kingdom.
  • Performing analysis and due diligence of numerous yard facilities in the rail industry involving assessment of contracts and various agreements associated with rail facilities and rail yard operations of large freight companies, as well as the construction and maintenance of the facilities and rail lines.
  • Advising a construction contractor on the build and ongoing maintenance of a series of solar projects in the East of England.
  • Advising a U.K.-based infrastructure fund on the acquisition and ongoing operation and maintenance of a water treatment facility in North Carolina.
  • Counseling a company on transactional, due diligence, financing, and regulatory issues in potential microgrid developments and acquisitions, including developing agreements for early stage development, energy sales, and construction and operation—as well as counseling on procurement and financing issues—in connection with developing community microgrid projects in New York and an industrial microgrid in Texas.

Government Contracts

Our Government Contracts Group represents entities that contract with U.S. federal, state, local, and/or non-U.S. governments on numerous large-scale and prominent infrastructure projects. Working across the firm with colleagues from many practices, our Government Contracts attorneys grasp the intricacies of often massive, complicated infrastructure-related contracts and assist clients from all areas on best practices for managing these projects and seeing them through to completion.

Our team includes several highly regarded construction lawyers, a former trial attorney at the procurement litigation division of the U.S. Air Force Headquarters for Legal Operations who litigated complex construction cases, a former member of the U.S. Army Judge Advocate General’s (JAG) Corps who worked on a hydropower project during his tenure, and additional professionals who understand the nuances of working with the government to create or upgrade infrastructure.

We represent clients in government contracts matters arising out of the construction of highways, bridges, power plants, water treatment facilities, and other heavy infrastructure projects. In addition, we provide extensive counseling with respect to both domestic preference aspects and on mitigation of foreign ownership, control, or influence (FOCI) under the National Industrial Security Program related to classified work on infrastructure projects within the United States. We also are particularly adept at handling litigation and other disputes arising under prime and subcontracts.

In this regard, our attorneys have handled matters including:

  • Representing the international construction consortium that built the King Khalid Military City in Saudi Arabia.
  • Defending a construction prime contractor against both U.S. Department of Defense (DoD) and subcontractor law suits related to the construction of a major electrical substation at the Pentagon, resulting in the withdrawal of all $10 million in claims against the prime contractor, and payment to the prime contractor as a result of Differing Site Conditions (DSC) on the project.
  • Overseeing a $350 million Air Force construction contract involving 20+ construction projects for military bases, runways, government buildings, barracks, and bridges throughout Iraq and Afghanistan.
  • Handling a Claims Dispute Act (CDA) claim involving allegations of mutual mistake and $2.5 million in reliance-incurred upgrades to telecommunications infrastructure.
  • Representing the construction consortium that built the Tennessee-Tombigbee Waterway (an earthmoving project larger than the Panama Canal) in a groundbreaking ADR proceeding with DoD.
  • Advising an international corporation with regard to a Request for Proposal (RFP), teaming agreement, and risk analysis for a large design-build subway construction project in a major U.S. city.
  • Providing a global construction company headquartered outside of the United States with counseling related to FOCI mitigation for purposes of obtaining the required facility clearance for a large government design and construction project.

Environmental

We work with clients on major infrastructure projects to address environmental compliance, regulatory challenges, and myriad other actions, such as government enforcement and citizen suits that can stand in the way of bringing a project to fruition. In addition, we have experience litigating environmental issues associated with projects, including with regard to clean up and risk mitigation.

Our group includes the former deputy chief of staff for policy at the Environmental Protection Agency (EPA), who led EPA’s involvement in the executive branch’s infrastructure initiative, represented EPA on the Federal Permitting Improvement Steering Council to streamline the environmental review and permitting process for major infrastructure projects, and, as senior counsel for the Senate Committee on Environment and Public Works, drafted and negotiated legislation that was included in the since-enacted Water Infrastructure Improvements for the Nation Act.

Our professionals have held other top-level positions in the 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.

Our representative matters include:

  • Defending a cement manufacturer in a Clean Air Act (CAA) enforcement action under the New Source Review preconstruction permitting program and the Title V operating permit program.
  • Assisting a nationwide wireless provider with locating, permitting, and installing wireless telecommunications facilities on federal lands, including in National Parks.
  • Counseling a county government on National Environmental Policy Act (NEPA) and federal land matters involving a proposed bridge construction project involving one of the state’s five longest rivers.

Public Policy and Legislative Work

The future of infrastructure is enormously dependent on the White House, Congress and new infrastructure legislation. We work with clients to brainstorm, plan and influence that process. We bring together a public policy and legislative team with strong connections and substantive expertise in the U.S., Europe and Asia, as well as a history of success building relationships for clients with key government decision makers in Washington, D.C., London, Singapore and throughout Asia.

The foundation and impetus for U.S. infrastructure reform will likely come from Washington, D.C. But it will be implemented on a state-by-state and city-by-city basis across America.  In light of the economic recession caused by the COVID-19 pandemic, the President or Congress will likely begin an infrastructure initiative to both immediately stimulate the U.S. economy in 2021, create thousands of jobs to address significant unemployment, and address long needed infrastructure reform. The President and/or Congress will put together an infrastructure legislative package, with a likely combination of public and private funding and incentives to initiate “shovel ready” projects for short term stimulus. The government may then decide to “go big” and pass broad legislation to authorize and appropriate money for sweeping infrastructure reform.

Our U.S. Government Affairs group works regularly with clients to translate business goals into new legislation, and advocates at the White House and Congress to help develop new legislation, and then turn proposed legislation into law. Built on the foundation of former senior staff for U.S. Senate Majority Leader Mitch McConnell (R-KY) and U.S. Senate Minority Leader Chuck Schumer (D-NY), and including other former senior U.S. Senate and House staff, the group works collaboratively with clients to build and execute strategies, draft legislative language, and ensure that client business goals are directly incorporated into legislation that can then be adopted whole or in part by the White House and Congress.

Crowell & Moring International (CMI) is our international trade and trade policy consultancy. The CMI team advises U.S., European, and Asian clients, and works with Chambers of Commerce, the firm’s U.S. Government Affairs team, and our London office to track the interests and interrelationship between international financing, construction, technology, and other critical elements and drivers of infrastructure projects in these regions. Led by Ambassador Robert Holleyman, the former Deputy U.S. Trade Representative (USTR), the CMI team plugs directly in to the key public and private players in the international infrastructure related space.

Our London team, which has strong relationships with the U.K. government, represents participants in the European financial and corporate community, which seek to participate in the U.S. and worldwide infrastructure space. Drawing on our deep experience with infrastructure corporate and energy deals, the London office works seamlessly with the Crowell & Moring U.S. team to help clients think through infrastructure project funding, law and policy on a global basis to produce maximum efficiencies and return on investment. 

Our well-rounded public policy team brings critical legislative and regulatory experience to participants in a wide variety of infrastructure areas. On cross-border projects, we work closely with experienced local counsel, and with CMI, to assess how specific jurisdictional laws and regulations will affect proposed infrastructure projects, and we explore ways in which legislation can assist in advancing client projects.

Recent examples of our public policy experience include:

  • Representing a wind energy company in North America on various development and interconnection issues for offshore projects.
  • Providing analysis and advice regarding California electric utilities’ proposals to build and own electric vehicle charging infrastructure.
  • Advising a client involved in a major energy project on Supremacy Clause challenges to the enforceability of power purchase agreements provided to projects to support financing and construction.
  • Working with a major international client to map out supply chain and related infrastructure issues as the U.S. looks to move more manufacturing back to the U.S.
  • Assisting an international fund in resolving a dispute over international port investments involving several countries in the Middle East as well as Asia.

Litigation and Dispute Resolution

When projects face legal and regulatory hurdles, when parties dispute issues of how projects were built or financed, or when commitments are breached, deals encounter obstacles, or partnerships break down, our litigation and dispute resolution team has extensive experience guiding clients, exploring different avenues and delivering strong outcomes. We have represented clients in U.S. state and federal courts, administrative forums, arbitration, and IDR proceedings all over the world, and have been involved in litigation covering highways, bridges, power plants, renewable projects, and other heavy infrastructure projects. Our firm has particular experience helping clients address disputes that arise in conjunction with major infrastructure projects that are developed through public-private partnerships.

Our representative infrastructure-related litigation and arbitration matters include:

  • Handling an ICC arbitration with $50 million at issue for Tecnimont, a large Italian construction conglomerate, in relation to a joint venture with Daewoo to build LPG tank farms in Qatar.
  • Representing a large national insurer in U.S. federal court, successfully moving to dismiss bad faith claims arising out of a $40 million construction dispute and subsequently settling the matter on favorable terms.
  • Advising on a £10 million construction dispute acting for ITV plc in relation to the construction of its studios involving Coronation Street, a long-running English television program.
  • Serving as lead counsel in a $100 million UNCITRAL investment arbitration regarding denial of justice and arbitrary detention of a private equity manager over alleged embezzlement related to a successful infrastructure fund.
  • Serving as lead counsel in an arbitration in which a majority ICC tribunal awarded our client $500 million in damages, while defeating a $500 million counterclaim, in relation to a failed port project in Damietta, Egypt.
  • Performing due diligence and assessment of companies’ rail systems and infrastructure in preparation for complex litigation.