Renewable & Alternative Energy

Overview

We’ve earned a national reputation for assisting clients in the development, permitting, and acquisition of energy projects. Our strategies succeed at the intersection of law, policy, finance, engineering, and science.

Much of our energy practice focuses on renewable energy generation. We have decades of experience representing clients in connection with high-profile project development matters, including compliance strategies, permitting, policy-level advocacy, and litigation. Our regulatory and contracting expertise includes utility rate cases, market entry authorizations, enforcement and compliance actions, policy proceedings, rulemaking proceedings, mergers and acquisitions, customer complaints, utility relocations, and eminent domain, including right of way acquisitions. Our role also includes drafting and negotiating long-term power purchase agreements, facilities leases, and bankruptcy proceedings.

REAL ESTATE & LAND USE

We have handled a vast array of right of way acquisitions, lease negotiations, encroachment removals, utility relocations, joint use agreements, condemnation proceedings, and financing arrangements for energy clients. We assist developers with siting and permit issues and environmental compliance for energy producing facilities. In addition, we advise clients on turnkey contracting for facility construction and represent developers in connection with taxable and tax-exempt financing.

We also advise energy project developers concerning access to federal lands, including right of way and special use permitting under all of the major federal land management statutes. We have successfully defended federal rights of way and other approvals for energy projects in federal district courts and on appeal. We also provide advice concerning issues that arise during the ongoing operation of energy projects located on federal lands. We advise project developers on regulatory issues regarding rights of way for transmission lines across federal lands managed by BLM, the Forest Service and U.S. Fish and Wildlife Service. We have counseled developers with projects located in California, Alaska, Washington, New Mexico, and Mississippi.

We also help project developers evaluate tribal concerns, engage directly with tribal representatives, and provide input to federal agencies that are engaged in tribal government-to-government consultation. Where a federal nexus is present, we assist project developers in ensuring NHPA obligations are efficiently addressed.

ENVIRONMENT & WILDLIFE LAW

We assist wind and solar developers with natural resource permitting and compliance issues. We handle Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and Bald and Golden Eagle Protection Act (BGEPA) lawsuits for national trade associations and corporations. We also represent hydroelectric facilities facing fisheries and water quality matters.

We have extensive experience representing renewable energy projects before the U.S. and California legislature, California Public Utilities Commission, California Energy Commission, and California Air Resources Board. Our experience includes significant work with respect to California's Renewable Portfolio Standard (RPS) and AB 32 GHG emission reduction plan. We represent clients during rulemakings or board votes on stationary and non-stationary sources of carbon emissions and on issues specific to landfill, wastewater treatment, and biosolids disposal. We work on renewable, energy efficiency, and biosolids conversion projects. We also appear before the CPUC and CEC to obtain funding through existing state programs to offset costs of capital expenditures associated with renewable energy, energy efficiency, and water recycling programs.

We regularly provide counsel to wind energy and solar energy developers on ESA, Migratory Bird Treaty Act (MBTA), BGEPA, NEPA, Clean Water Act (CWA), and National Historic Preservation Act (NHPA) compliance. We produce regulatory opinions, policy-level advocacy and complex compliance strategies, as well as project-specific regulatory advice and representation. Our team works with energy project proponents to develop habitat conservation plans (HCPs) while securing the affiliated incidental take permits (ITPs) under the ESA. We served as lead counsel for the development of the two most comprehensive and expansive renewable energy HCPs in the country. We have successfully assisted clients in obtaining ITPs across the nation. Our successes range from a low-effect HCP in California that allowed geo-technical borings in connection with a wind farm, to the amendment of an ITP reconfiguring take numbers for a wind farm in Hawaii, to project-specific ITPs for listed bat species and migratory bird species to the first combined ESA/BGEPA ITP.

Additionally, we have unparalleled experience advising clients on BGEPA risk and in securing BGEPA permits. We assist clients with navigating the BGEPA eagle permit process and provide counsel for those undergoing BGEPA enforcement actions. Our clients include wind energy developers, electric transmission companies, solar companies, and water utilities.

Renewable energy project development may involve general or individual permits under the federal CWA for impacts to wetlands or “waters of the U.S.” We assist developers with wind, solar, power line, road, and pipeline projects on permitting strategies and support. We have assisted with permitting on projects in AZ, CA, IN, MO, OK, TX, and WA. Our support extends to intersections with ESA (section 7), NEPA, and NHPA compliance. We have also assist with complex permitting processes under CWA 404 (waters of the U.S.), 401 (water quality certifications), and 402 (NPDES/storm water).

Beyond ESA permitting, we assist linear, traditional, and renewable energy project developers in all aspects of ESA compliance, including the development of “take” avoidance strategies. We also regularly assist energy project developers with Section 7 compliance strategies, including intersections with the CWA Nationwide Permit Program.

Tax equity investors, national utilities, and other potential purchasers of renewable energy rely on us to complete federal wildlife fatal flaw assessments of renewable energy projects from across the country. These companies employ Nossaman as part of their core environmental due diligence teams for those investments. On the other end of the spectrum, transmission, midstream pipelines, wind, solar, and storage companies also rely on us to support their project compliance strategy ahead of review by third-parties, including the preparation of permitting opinions.

TRADE ASSOCIATIONS

We have a long history serving as outside environmental counsel to, and litigating on behalf of, national and regional trade associations, including the American Wind Energy Association (AWEA). In 2014, our attorneys assisted in the establishment of the Energy and Wildlife Action Coalition (EWAC), an unincorporated group of renewable energy, electric generation, and electric transmission entities focused on federal wildlife law and policy.

STATE & FEDERAL POLICY

Our attorneys and legislative advocates practice before the California Public Utilities Commission (CPUC), the California Energy Commission and the State Water Resources Control Board. We appear before state and local government agencies, the California Legislature, and also before federal agencies such as the Federal Communications Commission, the Federal Energy Regulatory Commission, and the Surface Transportation Board. As appropriate, we also arrange for and facilitate meetings and other communications between our clients and decision-makers at the CPUC and other public agencies.

We are well known and trusted in Washington as evidenced by the number of Congressional committee chairs and ranking minority members who have asked us for legislative drafting assistance. We advise and represent clients in all types of application, rulemaking, and investigatory proceedings. We regularly work with the Department of Interior and U.S. Fish and Wildlife Service at the policy-level to advocate for consistent application of the federal wildlife laws to renewable energy development and operations. Our experience ranges from helping adopt regulations applicable to the entire industry, to individual utility rate increase proceedings, merger and acquisition transactions, and service quality matters before the CPUC and other state administrative agencies. Our advisory work includes providing legal advice and opinions about the limits of regulatory agency jurisdiction, agency authorization and procedural requirements. We work to identify expectations as to the substance and timing of action by regulatory agencies on proposed or pending matters, and provide strategic advice concerning how to achieve success on issues and cases before various state and federal agencies.