Energy & Project Development

Our electric industry lawyers represent clients on energy-related regulatory matters before agencies such as the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC), the DOE, the US Commodity Futures Trading Commission (CFTC), state public service commissions, and state and federal courts.

Compliance & Enforcement

We represent clients at every stage of government and regulatory audits and investigations. Although we work to find a mutually acceptable solution for both the regulatory agency and the client, if the need arises, our lawyers advocate for the client in ensuing litigation, enforcement action, or court challenge. We also partner with clients in reliability-related investigations and audits to identify and resolve compliance issues.

Economic Regulation

Our lawyers represent electric utilities, generating companies, transmission entities, power marketers, and other electric power industry clients in a range of regulatory matters at the federal and state levels. We have experience in rate cases, tariff design and implementation, interconnection agreements, regulatory compliance, administrative litigation, prudence proceedings, default service procurement, and certificate proceedings. We have advised on electric market restructuring and continue to counsel clients on a range of retail and wholesale market issues. We help our clients anticipate and address the novel issues associated with increasing distributed generation, microgrid development, and energy efficiency and storage.

Mergers, Transactions & Corporate Restructuring

We blend our regulated electric business knowledge with diverse business and finance, antitrust, employment, and other relevant experience to advise clients as they evaluate existing business structures. The team counsels clients on the advantages of mergers, acquisitions, and other transactions and structures, including the divestiture or reorganization of assets. We advise on regulatory structuring, energy investment regulatory matters, and energy project and investment portfolio management questions.

Morgan Lewis’s market-leading nuclear energy practice represents governments and businesses as they seize opportunities in the nuclear sector. Collaborating across our global offices, we assist our clients with a full array of regulatory, litigation, and transactional needs.

Our lawyers represent companies across the spectrum of nuclear regulatory and adjudicatory matters, such as the acquisition of nuclear facilities and in the reorganization of nuclear assets. These transactions call on our informed command of the interplay between commercial and regulatory considerations in the transfer of licenses under US or non-US regulatory regimes, as well as our demonstrated ability to resolve specialized tax problems, antitrust questions, insurance issues, and complex employment and labor relations issues. We also are active in negotiating engineering, procurement, and construction contracts on behalf of new plants.

We work closely with clients on all aspects of new reactor projects, and we help clients in developing nations comply with the legal regulatory framework for nuclear projects.

Current Nuclear Plant Regulation & License Renewal

We counsel nuclear utilities on nearly every aspect of nuclear licensing, regulation, and related investigation, enforcement, and adjudicatory matters. Clients turn to us for guidance to recover from regulatory-imposed shutdowns and negative ratings from regulators. Our lawyers conduct investigations for clients and defend them when needed, and we assist with license renewals for existing reactors. To date, we’ve represented more than half of all license renewal applicants in the United States.

Enrichment & Fuel Cycle

We represent a diverse group of companies involved in uranium recovery, enrichment, and the manufacture and transport of finished fuel products. Academic institutions and manufacturing and healthcare companies that use radioactive materials also call on our services.

Nuclear Waste Management & Decommissioning

Morgan Lewis has successfully handled some of the industry's most challenging radioactive waste management, decontamination, and decommissioning issues. We assist clients with choosing and implementing project models for performing decommissioning, negotiating commercial agreements, and developing decontamination and decommissioning plans. We also counsel on the financial assurance requirements for decommissioning liabilities, and we have experience with trust agreements, investment management arrangements, compliance issues relating to investments, and the tax treatment of decommissioning trust funds.

ENERGY-RELATED SAFETY CULTURE, WORK ENVIRONMENT & WHISTLEBLOWER ISSUES

Our experience has taught us that a company’s safety culture, work environment, and whistleblower issues are best addressed proactively and comprehensively. To this end, we offer clients strategic capabilities and sophisticated counsel in the following areas:

• Safety and compliance culture, safety conscious work environment (SCWE), and employee concerns programs (ECPs)
• Internal reviews and government investigations involving allegations of retaliation, “chilling effect,” and other types of wrongdoing
• Whistleblower retaliation litigation and enforcement proceedings, including private and government-sponsored mediation
• Manager, supervisor, and staff training on safety culture, SCWE, and preventing whistleblower retaliation
• Management and executive counseling on emerging safety culture, compliance, and SCWE issues

Regarding proceedings involving alleged whistleblower retaliation, our lawyers assist companies conducting business in the energy industry across the United States with allegations of retaliation brought under various federal energy and environmental statutes, including:

• Energy Reorganization Act of 1974 (ERA), 42 USC 5851
• Department of Energy Contractor Employee Protection Program, 10 CFR Part 708
• Clean Air Act (CAA) 42 USC 7622
• Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 42 USC 9610
• Nuclear Regulatory Commission Employee Protection Regulations, 10 CFR 50.7
• Pipeline Safety Improvement Act (PSIA) 49 USC 60129
• Safe Drinking Water Act (SDWA) 42 USC 300j-9(i)
• Toxic Substances Control Act of 1976 (TSCA) 42 USC 2622
• Solid Waste Disposal Act of 1976 (SWDA) 42 USC 6971

Export Controls

Morgan Lewis routinely counsels US companies on US Nuclear Regulatory Commission export and import control restrictions. We also advise on US Department of Energy export control requirements, as well as related US Department of Commerce requirements.

Price-Anderson Act

Our team has in-depth knowledge of the Price-Anderson Act and a nuanced understanding of its substantive and procedural aspects required to counsel clients on the act, its implementing regulations, and related insurance coverages.

We advise on coverage under Price-Anderson and related private-sector insurance for nuclear liability claims resulting from radiological incidents and nuclear energy hazards, including but not limited to licensees of the US Nuclear Regulatory Commission and contractors to the US Department of Energy (DOE). We also counsel on the impact of Price-Anderson to companies outside of the nuclear energy industry and universities that handle radioactive materials, posing a risk of nuclear liability. Additionally, our litigators collaborate closely with our nuclear team to defend radiation toxic-tort cases and pursue claims for indemnification from nuclear hazards under Price-Anderson. Our lawyers also advise on the interplay between Price-Anderson and international treaties covering nuclear liability for third parties.

In addition, because Price-Anderson establishes the basis for much of the DOE’s nuclear safety enforcement regime, independent of its basis for providing nuclear liability coverage, we advise DOE contractors on self-assessments and corrective action programs that meet the DOE’s expectations and nuclear safety requirements and we assist companies in investigating and defending against the DOE enforcement actions and loss of fee awards.

Nuclear Propulsion

The development and use of nuclear propulsion can reduce greenhouse gas emissions from large diesel-powered cargo vessels and shorten travel time to Mars to just a few months. This is not science fiction; it is innovation and investment in next-generation nuclear technology at work—encompassing nuclear thermal propulsion, advanced fission reactors, fusion reactors, small modular reactors, and more.

Morgan Lewis’s expansive knowledge of the nuclear industry transcends the energy industry, as clients increasingly look to us to help them navigate the legal challenges tied to nuclear propulsion for commercial marine vessels and spacecraft.

We enjoy the challenges posed by novel technologies and new industries, like those being applied to nuclear propulsion development and utilization. We thrive on collaboration and combining diverse elements of the firm’s deep bench of lawyers in new and creative ways. Our work on behalf of clients in this space includes the following:

• Analyzing regulatory issues
• Helping clients protect their intellectual property
• Assisting with government contracts and funding issues
• Advising on international trade and classified information

We regularly work with the following departments and agencies, among others:

• US Department of Justice
• US Department of Energy
• US Department of Defense
• US Department of Commerce
• US Nuclear Regulatory Commission
• US General Services Administration
• US General Accountability Office
• National Aeronautics and Space Administration
• US Environmental Protection Agency

Our oil and gas team provides customized, interdisciplinary representation to efficiently and cost effectively address client needs, and partners with clients to develop innovative business solutions to ongoing challenges. We represent a wide array of oil and gas companies before the Federal Energy Regulatory Commission (FERC), US Commodity Futures Trading Commission (CFTC), US Department of Energy (DOE), and other government agencies.

Our dedicated FERC team counsels on regulatory, compliance, and transactional issues arising under the Natural Gas Act (NGA), Natural Gas Policy Act, and Interstate Commerce Act (ICA). We also participate in FERC generic rulemaking proceedings involving policy changes affecting the oil and gas industry. Our CFTC team advises on compliance with Dodd-Frank and the Commodity Exchange Act. We also regularly assist clients in a range of DOE matters, including obtaining authorizations to export liquefied natural gas (LNG).

We advise clients on certification of new natural gas pipelines and storage facilities, ratemaking, and tariff design. We also represent shippers in NGA Section 4 pipeline rate cases and tariff matters, and litigate NGA cases at both the trial and appellate levels. Additionally, we counsel on FERC’s capacity release regulations and assist clients with obtaining waivers from FERC’s regulations. 

Our lawyers handle matters involving the negotiation of gas supply agreements using both North American Energy Standards Board contracts and bespoke agreements, pipeline precedent agreements and related negotiated rate contracts, transportation service agreements for both gathering and interstate pipelines, complex asset management agreements, and interconnection agreements. With respect to ICA pipelines, we handle transportation service agreements and terminal storage agreements. 

We advise clients on DOE authorization to export LNG and FERC authorization to construct, own, and operate liquefaction and export facilities. We also negotiate LNG throughput agreements and related terminal use agreements, as well as gas supply and transportation arrangements to LNG facilities.

Our team assists clients in developing internal regulatory compliance programs, conducts employee training, audits internal regulatory compliance programs, and represents clients in formal and informal investigations and audits by FERC’s Office of Enforcement and the CFTC’s Division of Enforcement.

We partner with clients to identify the scope and magnitude of the risks associated with potential acquisitions, providing regulatory risk assessments to determine how best to handle the regulatory matters at play. We also help clients integrate separate entities’ compliance programs by identifying noteworthy differences, assessing the pros and cons of alternative approaches, determining integration options, and recommending a course of action to achieve successful compliance integration.

Oil and gas clients using radioactive or nuclear byproduct material in field equipment (e.g., industrial radiography, level detectors, flow meters, densitometers, well logging, moisture density gauges, and similar equipment) also benefit from our counsel on NRC and Agreement State regulatory issues. We assist clients with licensing, license transfers, regulatory reporting and compliance, security and transport, nuclear antiretaliation laws and policies (including safety conscious work environment issues), decommissioning, internal and government investigations, and enforcement actions.

Morgan Lewis lawyers help utilities, project developers, investors, energy service providers, and commercial energy users pursue the increasing opportunities created by new energy policies and technologies and meet evolving regulatory requirements.

New and mature companies alike call upon our lawyers in the United States and throughout the world for advice on:

• Renewable energy project development and the negotiation of power purchase agreements
• Purchase, sale, and financing of renewable energy projects
• Development and integration of distributed generation
• Renewable energy credit procurement
• Commercial agreements for energy-efficiency retrofits and energy-management systems
• Demand response programs for maximizing value in energy reductions
• Regulatory compliance, including utility energy-efficiency programs, securities laws, and climate-related disclosures
• Permitting and environmental issues
• Real estate and land use, including green building issues
• Understanding and reducing environmental impacts

Solar

Our solar energy clients range from utilities and independent power producers to investors, developers, and retail customers. Our lawyers have experience in the technical, commercial, and business aspects of solar energy. This background helps us explore new opportunities in the expanding solar energy markets in the United States and internationally.

Our lawyers provide strategic counseling to solar energy project developers. We advise clients on power purchase agreements, equipment purchase and sale agreements, real estate and permitting (including US federal lands and environmental compliance), transmission access, and interconnection agreements. Our work with investors in utility-scale and distributed solar project portfolios includes customized diligence and comprehensive corporate advice.

We advised several leading utilities on their first procurements of solar energy and solar energy credits. Our lawyers counseled on many issues of first impression under renewable portfolio standards and now advise on evolving rules governing distributed generation, energy efficiency, and demand response. For solar equipment manufacturers, we design solar equipment supply agreements and warranty programs for both utility scale and rooftop projects. For retail customers that plan to invest in distributed generation, we advise on negotiating power purchase agreements and energy savings agreements as well as the overall benefits and risks associated with developing energy technologies and markets.

Wind

Our lawyers are involved in the legal, regulatory, and business undertakings and leading transactions that shape the wind energy industry. We represent developers of generation and transmission projects, equipment manufacturers, financiers, and power purchasers. Our lawyers advise clients on mergers, acquisitions, and other corporate transactions. We also counsel clients on the legal aspects of wind turbine technology development, manufacturing, and sales. Our completed projects total more than $7 billion in financings.

Morgan Lewis lawyers have experience in wind engineering, procurement, installation, and construction contracts; turbine purchase and sale agreements; warranty agreements; operations and maintenance agreements; power purchase contracts; and interconnection agreements. Our lawyers advise wind energy clients on wind park easements, ground leases, rights over federal and state lands, transmission rights of way, and other land use and acquisition matters. We secure necessary permits from local, state, and federal agencies, and we make sure our clients remain in compliance with environmental and land-use laws. Our litigators are available to counsel with and handle disputes if the need arises.

The energy industry is undergoing dramatic structural changes as utilities, power producers, and regulators implement decarbonization and other energy transition strategies. Companies interested in investing in clean energy technologies, reducing climate-changing emissions, increasing energy efficiency, and working toward sustainability goals benefit from the advice of our energy, environmental, and corporate lawyers with experience in decarbonization and sustainability initiatives and implementation. 

We advise clients as they consider how climate change impacts their businesses, and help them reduce their carbon footprints. We negotiate power purchase agreements (PPAs), including virtual PPAs, and assist with the permitting, development, and financing of low-carbon, clean energy generation (including renewable, hydrogen, and nuclear energy) and transmission projects. Our lawyers structure clean tech startups and investment funds; advise on tax incentives and other issues; address  project-related real estate and advise on green building issues; and protect intellectual property. 

OUR SCOPE

Our team has an extensive background serving clients in a broad range of industries, helping to develop powerful-yet-practical sustainability strategies that deliver cost-effective results in the following areas, among others:

• Power purchase agreements, including virtual PPAs
• Clean energy project development, purchase, sale, and financing
• Renewable energy credit procurement
• Distributed generation, including agreements for large-scale solar project deployment at client properties 
• Real estate and land use agreements, including green building issues and contract negotiation
• Carbon trading 
• Commercial agreements for energy-efficiency retrofits and energy-management systems
• Permitting and environmental compliance
• Demand response programs for maximizing energy reduction
• Waste and recycling requirements, including sustainable management of industrial materials and consumer waste
• Regulatory compliance, including climate-related disclosures and marketing
• Energy-related tax issues and tax equity investments
• Equipment contracts
• Intellectual property
• Climate change litigation

ENERGY TRANSITION

We regularly advise energy project developers, owners, investors, and corporate energy purchasers during all stages of project development, acquisition, financing, and ongoing operations, as well as on novel issues under federal and state regulations. We advise clients on renewable energy projects involving both traditional and emerging technologies in the energy sector.

We have been analyzing safety and interchangeability issues related to the use of hydrogen and the transportation of hydrogen by pipeline, as well as the production and use of hydrogen as an energy storage medium to overcome local grid constraints and to facilitate the integration of large-scale renewable resources. In addition, we represent clients in the acquisition and development of renewable natural gas facilities and investments in liquefied natural gas, as our utility clients look to attain net zero carbon emission goals.

CLIMATE CHANGE LITIGATION & ENVIRONMENTAL COUNSELING

Our regulatory lawyers partner with our litigation team to defend environmental litigation and enforcement matters, including assertions by state and local prosecutors of environmental contamination giving rise to nuisance, failure to warn, negligence, and trespass. Our lawyers are experienced in air quality and emissions issues, including the regulatory context overseen by the local air quality management districts and the US Environmental Protection Agency. We appreciate the complexities associated with claims arising from the emissions of greenhouse gases and alleged impacts of climate change. Beyond the scientific, factual, and reputational issues that these cases present, there are jurisdictional, procedural, and legal issues that require assessment and strategic consideration. 

We also help clients respond efficiently and effectively to government mandates aimed at limiting climate-changing emissions from all sectors, including energy, chemicals, transportation, manufacturing, and agriculture. Our lawyers track legislation, litigation, and regulatory actions involving greenhouse gases to assist clients in navigating this rapidly changing area of law. 

ENERGY EFFICIENCY & GREEN BUILDINGS

Our lawyers are knowledgeable in the range of matters relating to green building and sustainable development, including green leasing and issues relating to Leadership in Energy and Environmental Design (LEED) certification. We have negotiated leasing provisions addressing energy efficiency retrofits and LEED compliance, advised on energy efficiency incentives and demand response programs, and worked with clients entering into agreements for energy-building management systems across multiple facilities.

CARBON TRADING

We are well versed in the evolving regulatory landscape surrounding carbon pricing. Our lawyers’ detailed knowledge of carbon pricing proposals, combined with their experience developing and executing physical and derivative commodity trading strategies, enable us to advise clients on emerging issues as federal regulators consider how to address carbon trading or pricing as part of a clean energy transition.

Our solar energy clients range from utilities and independent power producers to investors, developers, and retail customers. Our lawyers have experience in the technical, commercial, and business aspects of solar energy. This background helps us explore new opportunities in the expanding solar energy markets in the United States and internationally.

Our lawyers provide strategic counseling to solar energy project developers. We advise clients on power purchase agreements, equipment purchase and sale agreements, real estate and permitting (including US federal lands and environmental compliance), transmission access, and interconnection agreements. Our work with investors in utility-scale and distributed solar project portfolios includes customized diligence and comprehensive corporate advice.

We advised several leading utilities on their first procurements of solar energy and solar energy credits. Our lawyers counseled on many issues of first impression under renewable portfolio standards and now advise on evolving rules governing distributed generation, energy efficiency, and demand response. For solar equipment manufacturers, we design solar equipment supply agreements and warranty programs for both utility scale and rooftop projects. For retail customers that plan to invest in distributed generation, we advise on negotiating power purchase agreements and energy savings agreements as well as the overall benefits and risks associated with developing energy technologies and markets.

The water supply industry is undergoing dramatic structural change as providers work to replace aging infrastructure, meet evolving drinking water standards, and develop new supply sources. Our team provides comprehensive service to water supply sector businesses to help them navigate these changes. Our background includes transactions, water utility securities, and economic and environmental regulatory issues, as well as industry-specific labor and employment matters.

Our lawyers represent investor-owned companies, municipal water systems, domestic and overseas corporations involved in outbound and inbound investment, and other water industry businesses.

Economic Regulation

For more than 50 years, our deep bench of lawyers has represented investor- and municipality-owned entities in rate application, complaint, rulemaking, and certificate proceedings before state public service commissions, as well as related litigation before state courts. Recent cases have focused on:

• The recovery and amortization of merger-related costs
• The reliability of certain equity cost rate methods under current market conditions
• The reasonableness of main extension rules that require customers to fund, in part, the investment needed to bring them service
• The permissible use of competitive rate riders to attract new industrial and sales-for-resale load
• Single-tariff pricing
• Changes in the federal tax treatment of repairs
• The ratemaking treatment of gain on the sale of nondepreciable property

In the 1990s, we helped two companies design and obtain regulatory approval of a groundbreaking surcharge mechanism to finance infrastructure replacement projects. Use of that mechanism—the Distribution System Improvement Charge—has since spread nationwide.

As counsel to a water utility trade association, our team has participated in numerous commission and appellate proceedings. These cases have involved, among other things, utilities’ rights to retain gains derived on the sale of watershed land and the proper methods of valuing utility property (including contributed plant) in municipal condemnations.

Mergers & Acquisitions

Morgan Lewis lawyers have represented clients in some of the largest water utility mergers and acquisitions in recent years, including the following:

• A $400 million purchase of water utility assets
• A merger that required the regulatory approval of 11 states
• A proposed privatization of the water and wastewater systems of a major US city
• The acquisition and subsequent divestiture of the country’s largest investor-owned water provider

Securities

Our team represents investor-owned companies, municipalities, and financial institutions in the issuance of water utility securities. We also helped two publicly traded water companies develop innovative customer stock purchase plans.

Environmental Regulation

We regularly counsel water supply industry clients on environmental issues that range from Safe Drinking Water Act and Clean Water Act compliance to the disposal of treatment plant residues. We took a leading role in appellate court challenges to rules adopted by the US Environmental Protection Agency (EPA) and various state regulatory bodies. We also represented a major municipal water system when actions brought under the Endangered Species Act and other environmental statutes threatened its water rights.

Labor & Employment

Our lawyers represent many private and public water suppliers in collective bargaining negotiations, grievances, OSHA and US Equal Employment Opportunity Commission (EEOC) compliance, and other labor and employment law matters. We have experience drafting and negotiating labor relations agreements for large water supply construction projects. We also advised a major water utility in connection with union representation elections by employees of an acquired company.

International Investment

With a global network of lawyers, Morgan Lewis advises foreign-based multinational corporations involved in the US water supply industry on finance, tax, and regulatory issues. We also stay active in foreign markets, particularly Latin America, by representing investors in water infrastructure projects and by counseling clients on privatization options.