Developing and financing energy infrastructure projects requires a wide array of legal expertise. Pierce Atwood is one of a select few firms that offers this requisite expertise in one place with a value proposition that cannot be matched by larger firms.
Pierce Atwood delivers cost-effective solutions to its clients, whether by guiding them through complex financings or tax structures, drafting and negotiating major project or credit documents, anticipating and overcoming regulatory obstacles, and allocating risk among project participants. We leverage our broad expertise on sophisticated matters and employ a collaborative approach to solve problems and complete projects quickly and efficiently. While Pierce Atwood has a long and successful history assisting clients on projects utilizing virtually any fuel or technology, our attorneys are also at the cutting edge of the rapidly growing renewable energy industry. We work closely with clients in developing wind, solar, battery storage and other renewable energy facilities, including tax equity structuring and debt financing for those facilities.
Pierce Atwood has substantial experience negotiating the full array of agreements that are essential to a project’s success, and offers a deep bench of former regulators and private equity participants with deep insight into the regulatory approval and financing process– including the Chair of Federal Energy Regulatory Commission’s (FERC) Cogeneration and Small Power Production Task Force, Chief of Staff and General Counsel of the Massachusetts Department of Public Utilities (DPU), FERC’s Supervisory Attorney for Gas & Oil Litigation, FERC Commissioner Assistants, state public service commission attorneys, and board members of solar energy and biofuels companies.
Areas of Expertise
Project Development & Finance
With over 30 attorneys in our Energy Infrastructure Project Development & Finance practice, clients seek out Pierce Atwood because we understand the commercial, regulatory, tax, real estate, land use, economic, environmental and financial issues underpinning the successful development of energy infrastructure projects. We recognize that these projects are multi-disciplinary in nature, and we draw on expertise across the firm as needed to help attain the desired solution for our clients. We also understand the need to collaborate closely with engineers, economists, environmental experts, financial analysts and other experts are part of the broader client and project team.
Pierce Atwood acts as primary counsel to major energy project developers, shippers, commercial lenders, private equity companies, investor-owned utilities and bilateral and multilateral financial institutions involved in the development and financing of energy and other infrastructure projects. We represent our clients on all aspects of project development, from the initial, pre development stages through financial closing. We advise clients on commercial agreements, site acquisitions, investment and tax structurings, regulatory approvals, bank borrowings, and sales and dispositions. Our team has experience with the full array of corporate and commercial structures, and helps our clients design strategies to maximize the value of tax benefits and renewable energy credits. We structure and negotiate the full array of agreements essential to successfully financing a project, including:
- Debt Financing
- Private Equity
- Joint Venture
- Tax Equity
- Real Estate
- Power Purchase
- Hedging and Risk Management
- EPC and O&M
- Interconnection and Transmission Services
- Energy Storage
- Renewable Energy Credits (RECs)
- Siting and Permitting
- Asset Management
- Fuel Supply and Transportation
- Environmental and Land Use
Fuels & Advanced Technologies
Pierce Atwood is equipped to represent projects utilizing virtually any renewable or conventional fuel or technology. With its historic roots in Maine and the pulp and paper industry, Pierce Atwood was one of the earliest firms to work in the renewables and cogeneration industries through the development of generating projects powered by wood waste and other renewable by-products. Since that time we have advised clients on solar, on-shore and off-shore wind, energy storage, ethanol, landfill gas, geothermal, hydropower, biodiesel, biomass and advanced technology projects. Our lawyers have substantial experience in the environmental issues posed by renewable technologies and extensive knowledge of the availability of renewable energy certificates (RECS), carbon set-asides and Renewable Portfolio Standards.
We also have substantial experience working with projects utilizing conventional fuels. We regularly work on conventional thermal generating facilities, including natural gas and biomass, as well as cogeneration and combined heating and power (CHP) systems. Our attorneys have been instrumental in drafting many of the landmark rules governing cogeneration and CHP, and have successfully negotiated fuel supply, fuel transportation and interconnection agreements for natural gas, biomass, LNG, and other liquid products. We also represent developers of electric transmission projects, pipelines and shippers of natural gas, crude oil and petroleum products.
Private Funds & Joint Ventures
Pierce Atwood’s lawyers provide entrepreneurial, pragmatic, and proactive advice to private funds clients. Our experience covers fund formation, management structuring, and deal execution across a broad range of fund classes, including buyout, venture capital, hedge, real estate, energy, mezzanine, distressed, and funds of funds. We have structured complex transactions throughout the U.S. and overseas involving energy and infrastructure, as well as real estate, telecommunications, and technology development in the U.S. and overseas.
Pierce Atwood’s attorneys have extensive experience negotiating sophisticated joint venture agreements between sponsors and private equity investors for the acquisition, development, and operation of commercial real estate, energy, and other classes of properties. We have represented sponsors and investors in connection with both single-property and portfolio acquisitions, as well as programmatic joint ventures aimed at building a platform for the investor and sponsor to hold multiple properties. We have substantial experience negotiating joint ventures with some of the largest private equity firms, but also with mid- and small-cap PE investors, strategic capital partners, family office, and high net worth investors. In many cases we represent our clients on these matters for the entire lifespan of the investments involved, and assist them with issues arising in the operation, financing, exit strategy planning and transfer, or other disposition of the relevant joint venture’s assets.
State Green Banks; DOE Loan Guarantees
Pierce Atwood attorneys have worked closely with the New York and Connecticut Green Banks on a variety of loans and credit enhancements to support clean energy projects in those states. The firm has helped to arrange loan guarantees with the U.S. Department of Energy for a range of energy projects that foster and support clean energy and greenhouse gas reductions. Pierce Atwood has successfully secured bonds and grants for both start-ups and established clients.
Project Development & Finance Experience
Renewables & Distributed Energy
Pierce Atwood is at the cutting edge of the growing and increasingly complex industry of renewable energy technologies. Pierce Atwood helps its clients structure net metering, SMART program, value-based distributed energy, community solar, synthethic power purchases and other distributed energy agreements. We help clients maximize all available state and federal renewable or solar energy tax credits. Our firm has expertise in all aspects of renewable energy project development to assist developers, power producers, and investors throughout the U.S. and abroad. Whether the renewable source is wind, solar, hydro, energy storage, tidal, biomass, or biogas, our energy lawyers have experience in the core areas that make or break a renewable energy project.
Pierce Atwood’s lawyers have played a leading role in the evolution of the renewable energy industry in the United States. We have represented clients from the initial stages of investment and tax structuring to the development and financing of the full breadth of sustainable energy projects. We are equipped to represent any power developer of any project that utilizes any fuel or technology. We have worked on landfill gas, wind, ethanol, solar, geothermal, hydropower, biodiesel, as well as a variety of biomass projects, including wood. We are fully capable of representing any energy developer from the earliest stage of a project's development to the successful financing of the project.
Our attorneys have extensive experience in the environmental, energy regulatory, contractual and financing issues associated with the development, construction financing, acquisition, or acquisition financing of waste wood-fired power plants. We have worked on the construction and acquisition financing of wood-fired power projects in Massachusetts, California, New York and Michigan. We have worked on transactions to monetize tax credits for wind, solar and biomass power plants.
Renewables & Distributed Energy Experience
Pierce Atwood enjoys a national reputation advising clients on energy storage projects. We have extensive experience working with energy storage companies, inside knowledge of FERC and public service commissions, and strong connections with the management and staff of the nation’s grids. The firm acts as outside counsel to the Energy Storage Association. Pierce Atwood’s energy attorneys, among other matters, led efforts on behalf of the energy storage industry that resulted in FERC Orders Nos. 755 (pay for performance for frequency regulation), 784 (Third-Party Provision of Ancillary Services; Accounting and Financial Reporting for New Electric Storage Technologies), 792 (interconnection of small generation interconnection agreements), and 841 (expansion of the storage industry into the energy, capacity and ancillary services markets). We actively work with ISOs/RTOs and FERC to help develop innovative tariffs to allow new energy storage technologies to operate on the grid and to be paid for the benefits they provide, including for voltage regulation, peak shaving, grid reliability and environmental value.
Our energy lawyers understand the challenges facing the energy storage marketplace, including those associated with integrating storage technologies into the grid and utility distribution systems, and how these technologies can be incorporated to help alleviate those challenges. The firm has extensive experience working with ISOs/RTOs and utilities to ensure that new technologies satisfy reliability and other regulatory thresholds.
Pierce Atwood’s energy attorneys work closely with companies that seek to incorporate alternative technologies onto the grid or distribution systems, including synchronous condensers, compressed air, batteries, flywheels, and tidal wave, among other technologies. These energy storage companies seek our services to gain an understanding of the regulatory environment, to help use existing rules and regulations to establish a market for their technology, and to develop successful, innovative legal and strategic initiatives to ensure that their technologies are chosen to include on the grid.
Our law firm has successfully worked with utilities and grids to formulate and initiate pilot programs to test new energy storage technologies for incorporation into the grid or a distribution system. We work with these entities to collect the data needed to demonstrate success - both for the development of future projects and to encourage investors to help finance those projects.
Energy Storage Experience
Federal tax credits and accelerated depreciation play an essential role in financing infrastructure projects, particularly renewable energy projects. What is less familiar to project participants is how to integrate tax equity investors interested in receiving those tax benefits with the other capital providers – including term and mezzanine lenders and sponsor equity providers.
Pierce Atwood’s tax attorneys have substantial experience integrating all elements of a project’s capital stack and assisting clients to structure their renewable energy projects, including wind, solar, and biomass projects, in the most tax-efficient manner possible. Often this involves the syndication or monetization of tax credits. We have expertise and experience with all tax aspects of energy projects, including tax equity financing utilizing investment tax credits, production tax credits, and new markets tax credits. We have assisted clients in implementing a variety of different structures to optimize the value of tax benefits, such as sale-leasebacks, partnership flips, and inverted lease structures, including back-levered loan structures. We also have substantial experience in structuring renewable energy projects to avoid or minimize property tax assessments, including obtaining tax abatements, minimizing the treatment of property as real estate fixtures and improvements, and negotiating tax-increment financing and payment in lieu of taxes (PILOT) agreements.
Our firm has significant experience with issues involving the valuation of generation and other infrastructure facilities, starting at the local level, through state boards and trial courts and all the way up to state supreme courts. Our property tax clients include power plant owners and developers, gas and electric utilities, interstate pipelines, federal Superfund sites, real estate developers, telecommunications assets and others.
Our tax practice is highly regarded for its in-depth knowledge and experience in structuring multi-national transactions and partnerships. Pierce Atwood is well-versed in managing the needs of different kinds of private fund investors, including taxable, tax-exempt (both pension and endowment), non-U.S. and sovereign entities. Our attorneys can creatively handle the complexities of UBTI, ECI, FIRPTA and other tax-intensive investments, whether the target is a commercial real estate developer in Boston, a renewable energy project portfolio in New York, or a family fund in London.
Our tax attorneys also provide state and local litigation, planning, transactional, regulatory and legislative services and support to project developers on all state and local tax issues and economic development incentives. Our work has included advising clients on the state and local tax aspects of the acquisition of power plants, as well as on the state and local tax and economic development aspects of wind power projects.
We pride ourselves on creating practical, tax-efficient structures to meet our client's needs. Our attorneys also represent both individuals and businesses in tax controversies and disputes before all levels of the IRS, the United States Tax Court, the Federal District Courts, and State courts and administrative agencies.
Tax Structuring Experience
Developing energy projects requires in-depth understanding of the federal and state regulatory frameworks underlying the projects. Our energy regulatory lawyers have the expertise to address the many issues that arise in acquiring, developing, operating and financing energy projects. At Pierce Atwood, our clients benefit from knowing that within a single law firm they have access to a team of accomplished energy lawyers to help them obtain the requisite federal and state regulatory approvals, navigate and satisfy applicable federal and state regulations, and assess the impacts and risks of federal and state regulatory and policy developments.
Pierce Atwood offers a deep bench of attorneys who have served in senior policy positions at state and federal regulatory agencies, including the former Chair of FERC’s Cogeneration and Small Power Production Task Force, Chief of Staff and General Counsel of the Massachusetts DPU, FERC’s Supervisory Attorney for Gas & Oil Litigation, FERC Commissioner Assistants, and state public service commission attorneys. Our energy attorneys regularly practice before federal agencies, including the FERC, U.S. Department of Energy (DOE), U.S. Environmental Protection Agency, Commodity Futures Trading Commission, Securities and Exchange Commission and U.S. Patent & Trademark Office. We also have extensive experience before numerous state regulatory agencies, including California, Connecticut, District of Columbia, Georgia, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Illinois, Pennsylvania, Rhode Island, Texas, Vermont, Virginia and Wisconsin.
Pierce Atwood’s attorneys have successfully negotiated fuel supply, transportation, and interconnection agreements for natural gas, biomass, LNG, and other fuels; interconnection agreements with electric transmission utilities; and power contracts for the output of renewable and conventional fuel generation plants. In addition, our attorneys have negotiated contracts with electric and natural gas utilities and Independent System Operators (ISOs).
Pierce Atwood has conducted due diligence for the full array of regulatory, environmental, real estate, tax and other issues that affect the risk and credit profiles of energy projects. Our attorneys assist our clients to identify and characterize risk, structure and renegotiate deal terms and contractual provisions, set up and manage data rooms, and prepare disclosure schedules. Our energy lawyers partner closely with attorneys in our Business, Environmental, Land Use, Real Estate, State and Local Tax, and Litigation practice groups to address the range of issues that affect their projects.
We have substantial experience in obtaining approvals, exemptions and waivers under Public Utility Regulatory Policies Act of 1978, as amended (PURPA) and the Federal Power Act; in obtaining certificates under the Natural Gas Act for gas pipeline and storage facilities; in guiding developers of crude oil pipelines through the open season, declaratory order, and tariff processes; and in complying with state and federal gas and power marketing regulations. We pride ourselves in our ability to assist our clients in structuring their projects to exempt them or minimize the impacts of FERC and state jurisdiction.
Transmission & Distribution
Our energy and infrastructure lawyers regularly represent major developers and users of electric transmission facilities, both AC and DC, including within ISO-New England, Pennsylvania-New Jersey-Maryland (PJM), Midwest ISO (MISO), New York ISO (NYISO), California ISO and Electric Reliability Council of Texas (ERCOT). We represent our clients on all aspects of development, including regulatory authorization, environmental permitting and siting, real estate, land use, eminent domain issues, and construction contracting and dispute resolution. With the advent of FERC Order 1000, our attorneys have taken the lead in preparing detailed proposals to competitive solicitations for new transmission facilities designed to address public policy needs, including connecting renewable resources to the transmission grid and mitigating transmission congestion.
Fuel Supply & Transportation Agreements
For power plants, biomass and biogas producers, LNG, and similar energy projects, we work with energy project developers, lenders, EPC contractors and other clients in drafting and negotiating interconnection, gas transportation, fuel supply, and physical and financial hedging agreements, including bi-lateral agreements, NAESB and ISDA Master Agreements, and exchange-traded agreements. Our experienced energy lawyers help our clients permit clean energy resources, and expand transmission and pipeline infrastructure to meet reliability needs.
Our regulatory attorneys have a wide range of experience in obtaining FERC approval of new interstate natural gas pipeline and storage projects, providing critical advice to developers of natural gas pipelines in qualifying for statutory and regulatory exemptions from FERC’s jurisdiction under the Natural Gas Act, including Hinshaw pipelines, intrastate pipelines, gathering and processing facilities, and single use plant lines. We counsel oil and petroleum products pipeline developers and shippers on Interstate Commerce Act and FERC regulatory requirements for new common carrier pipelines, as well as qualification for waivers of tariff and reporting requirements, open season materials, FERC pre-approval through declaratory orders or no-action letters, or volume commitments and prorationing preferences.
We specialize in advising developers on jurisdictional issues and structuring pipelines that are not subject to FERC’s jurisdiction or are subject only to limited jurisdiction.
Wholesale Market Rules
Pierce Atwood energy attorneys have extensive experience working in and with FERC and ISOs and Regional Transmission Organizations (RTOs) on market-based authorizations for wholesale sales of electric energy, capacity, and ancillary services; arrangements and agreements for new power generators to participate in the organized markets; and for the sale and acquisition of facilities. Our attorneys were at the forefront of the development of FERC’s rules and policies regarding (i) natural gas pipeline capacity release and open access transportation, as well as more recent regulations granting exemptions for shippers utilizing asset management arrangements, and in obtaining individual waivers from FERC for specific transportation transactions, and (ii) the participation of energy storage facilities in the organized ISO energy, ancillary services and capacity markets. Pierce Atwood attorneys regularly advise clients regarding market rules governing selling and trading in the PJM, ISO-New England, NYISO, California ISO, MISO and ERCOT regional markets.
Impacting Policies & Regulations
Power projects typically involve important federal and state regulatory policy issues, contracts with regional electric or natural gas utilities, and dealing with ISOs. Pierce Atwood has a long and distinguished history of representing clients before state and federal energy regulators and helping to shape relevant energy policies. We also partner with our clients to collaborate with similarly situated companies to shape policies and regulations that support the advancement of renewable energy. For example, we represent a large national trade association that is active on policy formation surrounding alternative fuels and biofuels laws and regulations. The firm is lead outside counsel to the national Energy Storage Association on a variety of federal and state issues affecting the energy storage resources, and represents the Coalition of Renewable Energy Users and Developers (CORE), a coalition active in shaping renewable energy and storage policies in New York.
Pierce Atwood represents energy clients in rulemaking proceedings before local, state, and federal agencies regarding all policy issues which would affect the development of electric power projects, electric transmission projects, and natural gas and oil pipelines and shippers.
Siting, Permitting & Construction
New and existing power projects are subject to significant regulation regarding facility siting, environmental, and land use requirements. Pierce Atwood attorneys have more than 40 years of experience in permitting power projects under state and federal air, water, natural resource, wetland, land use, and hazardous waste statutes. Our project partners work closely with our environmental, land use, real estate, zoning and construction partners to ensure that the firm is able to guide its clients from project conception to delivery and beyond.
Environmental Permits & Land Use
Successful completion of a project requires understanding the environmental laws and regulations and the political influences that affect how a project proceeds through the permitting and siting process. We provide guidance at every stage in the process from site assembly/acquisition and initial planning through permitting, construction, and operation. Our attorneys work with clients to obtain the full range of governmental approvals for a project, including local, state, and federal permits, permitting compliance, license renewals and modifications; federal and state-level clean air, clean water, wetlands, tidelands, environmental notification and site contamination requirements; as well as local zoning, subdivision, and site plan approvals. In some cases, we work with clients to amend the applicable law or local ordinances so their projects may proceed. When a project's useful life comes to an end, we also assist with license surrender and decommissioning.
We assist clients in the acquisition, creation, and sale of greenhouse gas allowances/carbon credits. Our lawyers also work with private property owners and public entities on a wide range of eminent domain matters, including negotiating air, water, and land rights, as well as representation in related litigation.
For example, we have experience helping owners of hydropower projects address fish passage and endangered species issues, achieve desired results in complex stakeholder negotiations as part of FERC licensing, and obtain state water quality certifications. We have also assisted in permitting all aspects of biomass electrical generation, biomass-fired co-generation at industrial facilities, and landfill gas-to-energy facilities.
Siting Boards/Public Utility Commission Review
New generation and transmission projects are subject to state siting board or public utilities commission review, and Pierce Atwood lawyers have represented clients before permit-granting authorities in states and municipalities throughout the country. We have secured favorable approvals for a wide range of generation and transmission projects. Pierce Atwood successfully employs efficient, cost-effective strategies to secure permits on a timely and often expedited schedule. These proceedings have occasionally involved necessary eminent domain condemnations or exemptions from zoning or other state and local permits.
Contracting & Construction
Pierce Atwood’s construction lawyers help clients achieve successful outcomes in the construction of power generation projects and transmission infrastructure. Our attorneys represent developers through all phases of their projects – from pre-construction planning, financing, and the development of an appropriate project delivery system through final payment and operation. Our attorneys assist our clients to implement and administer all types of construction contracts, including engineering, procurement and construction (EPC) contracts, and work closely with them to manage project risk, ensure sufficient credit support and performance wraps, and anticipate and prevent disputes and claims that can threaten a project’s success and the client’s relationships with other project stakeholders.
Our construction and engineering lawyers work closely across all phases of project planning, development, financing and construction with project sponsors and owners, commercial and private lenders, institutional investors, engineering, EPC contractors and sub-contractors, real estate owners, public utilities, consultants and suppliers.
Pierce Atwood’s construction practice is also well-known for its work on university and college campuses. We have experience counseling clients on how to implement the potentially game changing Integrated Project Delivery (IPD) approach to project delivery. We help our clients navigate the regulatory scheme that governs the industry, public and private, including compliance with applicable federal, state and local public procurement laws, and with applicable professional and trade licensing and prevailing wage laws, OSHA regulations, apprenticeship requirements, and mechanics lien’ laws.