Renewable Energy

Balch & Bingham represents organizations that develop, acquire, and sell renewable energy projects. We also advise and structure transactions in order to address ownership and control over renewable energy credits. When public utilities are involved, we conduct regulatory due diligence and prepare and pursue regulatory approvals of our clients transactions. Our clients run the gamut: private equity firms, traditional public utilities, independent power producers, and wholesale power merchants. We also advise clients, on both the buyer and seller side, with respect to renewable power RFPs. Set forth below are quick summaries of our experience in these areas and recent, representative engagements.

Renewable Energy Credit (REC) Transactions

We represent a broad range of energy clients in a variety of trading/origination/RECs transactions.  These transactions include long term wholesale contracts, physical and financial energy trading transactions and associated risk management.  Our experience in this area includes:

Long Term Wholesale Power Contracts.  We assist utilities and IPPs in the negotiation and preparation of long term electricity purchase and sale agreements, including tolling agreements and unit contingent contracts.  We also have vast experience in negotiating and developing contracts for full and partial electricity requirements service for municipals, cooperatives and other retail load serving entities.

Negotiation of Trading Contracts.  On a day to day basis, we negotiate ISDAs (with and without annexes), EEIs, WSPPs, NAESBs, master emissions agreements, renewable energy credit agreements, various collateral and credit documentation, including the ISDA Credit Support Annex, the EEI Collateral Annex, parental guarantees, letters of credit, security interests in accounts receivable, first, second and third liens on physical assets and all manner of master netting agreements. 

Trading Counsel – Multi-State Vertically Integrated Utility.  We provide all legal support required to establish and operate the merchant trading function of a large, vertically integrated public utility system.  We provide “real time” legal support in relation to trading operations, including matters relating to response to TLR events, shipper-must-have-title, compliance with scheduling and OASIS protocols and ancillary service arrangements; 

Trading Counsel – Independent Power Producer.  We serve as primary outside legal counsel to power supply and management operation of a large independent power producer with a substantial generation and supply portfolio located chiefly in the Southeast, including Florida. 

Outside Merchant Function Counsel – Western Public Utility.  We serve as primary outside legal counsel for a wholesale merchant group within a Western public utility that relies primarily on in-house counsel on a day to day basis.  In contrast to engagements such as those described above where the firm provides a “one stop shop” array of legal services required to support trading operations (and associated FERC compliance), the Firm provides support on an “as needed” basis to provide specialized, expert support for in-house attorneys.  In this capacity, the firm fields calls and responds in real time to inquiries ranging from consent to assignment, network resource scheduling, negotiation of scheduling and asset management arrangements, compliance with FERC Standards of Conduct and Market Behavioral Rules, compliance with FERC limitations on market-based rate authority faced by this particular client, assignment of transmission rights, and compliance with ISO and traditional transmission provider tariffs.

Compliance Counsel – Retail Energy Services Unit Operating in PJM Region.  We serve as independent compliance counsel for retail energy services unit of electric and gas services entity.  We developed a regulatory compliance manual and assist in periodic updates to such manual based on regulatory developments.  We counsel the client in the development or updating of regulatory compliance training for its employees based on changes to the compliance manual and regulatory audit findings/violations of other utilities.  We also review past regulatory filings made by client for potential areas of improvement (and consistency among affiliate filings).  In addition, we conduct confidential, random regulatory spot checks of particular regulatory requirements.

Renewable Energy Project Development

The Firm offers a broad array of services relating to renewable energy projects to both major utilities and independent power producers.  We frequently advise major utilities and independent power producers regarding complex transactional and regulatory issues, regulatory applications, tax incentives and tax strategies associated with the development of renewable energy projects.: In addition, we advise our clients in a wide range of transactional matters involving renewable and “clean coal” power projects, including:

• Acquisitions of renewable power projects. Contracts associated with the development of renewable power projects, including construction contracts, contracts for the procurement of major equipment, generator interconnection agreements, transmission service contracts and water supply agreements. 
• Contracts for the purchase and sale of capacity and energy from renewable energy projects.
• Contracts for the purchase and sale of environmental attributes and renewable energy credits.
• Contracts for the purchase of renewable fuels, including landfill gas and biomass.
• Long term service agreements (“LTSAs”) and operation and maintenance agreements for renewable generation facilities.  A variety of financing arrangements, including recourse and non-recourse financings, government sponsored financings, and sale-leaseback transactions.  Further, we assist clients in the negotiation and preparation of a full range of contracts necessary for successful project development, including .   

Recent publicly disclosed matters in which the Firm has advised clients in the area of renewable energy include:        

• In the Fall of 2009, the Firm served as lead counsel to an independent power producer’s in its acquisition of rights to and development of the nation’s largest biomass-fired generation plant in Texas. 
• In the Summer of 2009, the Firm advised a franchised public utility in the Southeast in the development and negotiation of a contract for the purchase of renewable capacity and energy from a biomass plant to be constructed in its service territory.  
• The Firm advised a public utility in preparing and administering its  Request for Proposals for the procurement of renewable power supply, environmental attributes, and other renewable energy products. 

Renewable Energy Resource Transactions

The Firm has represented major utilities and independent power producers in a variety of merger, acquisition and ownership transactions for many years. These transactions have included gas-fired, nuclear and renewable generation projects. In conjunction with these transactions, we regularly advise clients on a full range of due diligence activities leading up to the transaction, including regulatory compliance, environmental, real estate, NERC reliability, project contract, and tax matters. Recent, representative transactions in which we have served as counsel include:

• An independent power producer’s acquisition and development of the Nation’s largest (100 MW) biomass-fired generation plant in Texas.
• An independent power producer’s acquisition of a 600 MW Exempt Wholesale Generator in Texas.
• An independent power producer’s sale of a 320 MW gas-fired combustine turbine project in Florida.
• The negotiation and execution of an agreement by an independent power producer client to purchase a 300 MW gas-fired generating facility in the Southeast and to assume and service long-power supply contracts associated with that facility.
• The potential merger of a multistate holding company in the Midwest with a major independent power producer, during which the Firm advised the holding company with regard to the nuclear regulatory requirements for approval of a transfer of nuclear power plant licenses.
• The acquisition a nuclear holding company by an equity investment LLC. The Firm represented the equity investment LLC and handled the indirect transfer of the NRC licenses associated with a partial interest in a nuclear plant.
• Acquisition by a privately-held independent power fund of an ownership interest in an approximately 192 MW hydroelectric generation facility in Louisiana.
• Acquisition by an equity investment group of an indirect ownership interest in an approximately 525 MW gas-fired generation facility located in New York.
• Disposition by a private equity group of indirect ownership interests in three gas-fired generation facilities in excess of 1,000 MW located in New York and Virginia.
• Acquisition by a private equity group of an indirect ownership interest in an approximately 525 MW gas-fired generation facility in development in New York.
• Representation of a private equity firm in the development, construction and financing of an approximately 80 MW gas-fired combined cycle generation facility located in New York.
• Representation of a private equity power fund in the acquisition, construction and financing of a gas-fired simple cycle generation facility located in New York.
• Representation of a privately-held independent power fund in a joint venture arrangement with a publicly-traded energy company in the development, construction and financing of an approximately 330 MW gas-fired generation facility located in Canada.
• Representation of a privately-held independent power fund in the acquisition of an indirect ownership interest in three gas-fired simple cycle generation facilities in excess of 360 MW located in California.