Jackson Walker’s Renewable Energy team has played a key role in the rapid growth of wind, solar, battery storage, and carbon capture, utilization and storage (CCUS) projects across the state of Texas and throughout the country. The firm has extensive experience representing investors, lenders, developers, independent power producers, utilities, and marketers, and in the financing and sale of renewable energy projects. The firm also has extensive experience representing buyers and sellers of renewable energy, including utilities and corporate offtakers.
Our lawyers are immersed in the industry and counsel clients on utility scale projects, as well as distributed generation. The firm advises on all aspects of project development, project finance, power purchase agreements, and regulatory compliance. The team’s deep knowledge of the electric power industry and the regulations and commercial issues that impact the industry help make Jackson Walker one of the leading law firms in Texas in the renewable energy space.
Jackson Walker routinely acts as lead counsel for its renewable energy clients, as well as local Texas counsel and subject matter experts in areas such as real estate, site control, title insurance, ALTA survey and mineral rights, Chapter 312 tax abatement agreements, Chapter 313 property tax value limitation agreements, Texas state tax planning and compliance with respect to construction and operations, transmission and utility interconnection, electric regulatory compliance and environmental issues, state permitting matters, shared facilities arrangements, and regional transmission organization and independent system operator wholesale power market protocols.
- Represented a developer of several proposed wind energy projects in Shackelford, Callahan, McCullough and Jack Counties, Texas, covering a total of approximately 90,000 acres, and proposed facilities capable of generating more than 700 MW of wind energy.
- Represented a large wind-energy developer in connection with the developing, funding and leasing of a 166 MW wind energy project in Shackelford County, Texas, involving leasehold estates covering approximately 20,000 acres. This representation included due diligence, leasing, interconnection and crossing agreements, legal opinions and other documents relating to financing, corporate structuring and related documentation.
- Represented a wind-energy developer in connection with title and survey review, leasing, interconnection agreements and other real property agreements relating to development of a 60 MW wind project in Floyd County, Texas, covering approximately 11,000 acres of land.
- Served as owner’s counsel in the development and financing of a 45 MW wind project in Texas, including in connection with the preparation of a private placement memorandum and subscription documents for equity investors; the negotiation of project contracts such as real estate leases for the facility site and right of ways, the engineering, procurement and construction agreement, and the operation and maintenance agreement.
- Representation of a large developer and generator of wind power, assisting with and advising on lease and option agreements, substation, transmission and access easements, air rights, shared use agreements, surface use agreements, sub-easements and other related real estate, permitting and environmental issues.
- Representation of an owner of a 124 MW wind generation facility in Texas in connection with the long-term renewable energy and renewable energy credits purchase and sale agreement and other matters relating to the development of the project.
- Represented a large generator of wind power in connection with multiple projects and related operations, including assisting with and advising on lease and option agreements; substation, transmission and access easements; air rights; shared use agreements; surface use agreements; sub-easements; and other related title and environmental issues. Recent projects for this client include a 114 MW project in Taylor County, Texas, and a 41 MW project in Culberson County, Texas, comprised of over 64,000 acres.
- Assisted a client with obtaining leasing rights from the Texas General Land Office to more than 80,000 acres in the Gulf of Mexico for one of the first and largest offshore wind production projects in the United States.
- Represented buyer of a 173 MW wind project in Val Verde County, Texas in asset purchase agreement.
- Representation of large Chinese manufacturer of wind turbines in connection with the establishment of operations in the U.S. for turbine sales and the acquisition and development of wind projects. Representation includes structuring of ownership and financing vehicles for U.S. operations, including addressing matters relating to tax investment credits and flow of funds into and out of the U.S.
- Provided counsel to the lenders and tax equity investor in the repowering of a portfolio of three operating wind projects in Texas with a combined nameplate capacity of 383 MW.
- Provided counsel to the lenders and tax equity investor in the financing of and investment in a 238 MW wind project in Starr County, Texas pursuant to the terms of a sale-leaseback financing structure.
- Represented the tax equity investor in connection with its acquisition of a portfolio of two wind energy generation facilities, with a combined generation capacity of approximately 400 MW upon completion. Jackson Walker’s work included (i) assisting with preparation of the various transaction documents and negotiation of legal opinion letters, (ii) performing due diligence covering real estate and other site control issues, permitting, energy regulatory, environmental, construction, and state tax matters, and (iii) assisting with resolution of title and survey issues (including title insurance policies, affirmative coverage issues and related endorsements). In connection with the due diligence review, we advised on various issues, including endangered species, jurisdictional waters, cultural resources, radar, microwave and communication interference, hazardous materials, water, and air issues, tax incentive agreements, franchise tax issues, encroachment agreements, and compliance with state and federal law.
- Represented tax equity investor in connection with the financing of a 230 MW wind energy project, covering approx. 35,000 acres in Haskell and Knox Counties, Texas.
- Represented the tax equity investors and construction lenders as Texas counsel in connection with the financing of three wind projects located in Floyd County, Texas with a total nominal nameplate capacity of approximately 202 MW.
- Represented the tax equity investors and the project finance lender in connection with a 217 MW combined wind and solar project, consisting of two wind farms and one solar project.
- Represented a tax equity investor and the energy hedge provider in connection with a 200 MW wind generation facility in Texas, including assisting with the preparation of the transaction documents and negotiation of legal opinion letters, performing due diligence covering real estate and other site control issues, permitting, energy regulatory, environmental, construction, and state tax matters, and assisting with the resolution of title and survey issues.
- Provided counsel to the tax equity investors in connection with a wind energy generation facility in Knox and Baylor Counties, Texas with a nominal nameplate capacity of approximately 150 MW. JW’s work included (i) assisting with preparation of the various transaction documents and negotiation of legal opinion letters, (ii) performing due diligence covering real estate and other site control issues, permitting, energy regulatory, environmental, construction, and state tax matters, and (iii) assisting with resolution of title and survey issues (including title insurance policies, affirmative coverage issues and related endorsements). We also provided advice on various issues, including endangered species, jurisdictional waters, cultural resources, radar, microwave and communication interference, water and waste water issues, state tax matters (including sales, franchise, and property taxes), oil, gas, and mineral issues, state energy regulatory issues, and general compliance with state and local law.
- Representation of a tax equity investor in connection with its approximately $200 million equity investment in the Spinning Spur Wind Project, a 161 MW facility in the Texas Panhandle.
- Representation of municipally owned utility in negotiating a long-term power purchase agreement for supply from a 200 MW wind generation facility.
- Representation of the developer of a 500 MW solar project to be located at the site of a coal generation facility that is being retired, including the preparation of solar leases, acquisition of existing interconnection capacity rights, structuring for transfer and reorganization of assets and financing, and the risk allocation regarding remediation obligations associated with the retired facility.
- Representation of a large solar project developer in the acquisition of a 100 MWac solar power project in LA and the preparation of a bid response to a Request for Long-Term Renewable Generation Resource Proposals by Entergy Louisiana, LLC, including the review of the proposed Power Purchase Agreement to identify regulatory, credit, operational, and other risks associated with the same, and the development of risk mitigation strategies.
- Represented developer of a 150 MW solar project in San Patricio County, Texas on behind-the-meter solar purchase power agreement, real estate, interconnection and electric regulatory matters.
- Represented developer of a 110 MW solar project in Chambers County, Texas on behind-the-meter solar purchase power agreement, real estate, interconnection, and electric regulatory matters.
- Served as project development counsel to the developer and seller of a 100 MW solar project in Dawson County, Texas. Representation included real estate and other project development matters.
- Representation of a construction company in matters related to the development, financing and construction of a 150 MW solar facility in Arizona, including matters relating to the Engineering, Procurement and Construction Agreement, Department of Energy guaranty, commercial lending arrangements, permitting issues and related legal opinions.
- Representation of a large landowner in connection with a joint development agreement and site control agreements with regard to several solar energy projects in Texas and New Mexico potentially involving tens of thousands of acres.
- Represented a landowner in connection with the development of utility scale solar and wind power projects, including preparation and negotiation of joint venture agreements and joint development agreements for projects to be jointly owned and developed with large utility-scale renewable energy developers, preparation and negotiation of wind and solar lease options and lease agreements, counsel regarding tax incentives and project financing.
- Representation of the lenders on a 140 MW solar project in Upton County Texas. The project covers over 3,000 acres of leased property. Our representation included advice on real estate, project development, tax, environmental, permitting (including environmental, TxDOT, and regulatory), and regulatory issues.
- Provided counsel to the lenders in the construction financing of a 250 MW solar project in Lamar County, Texas, which involves shared facilities and easements with four other co-located sites across two collection system circuits.
- Provided counsel to the lenders in the construction financing of a portfolio of six community solar projects in Texas pursuant to terms of a master lease and a participation agreement financing structure.
- Provided counsel to the tax equity investor in a 500 MW solar project in Wharton County, Texas, where the energy and associated renewable energy credits (RECs) generated by the project are to be sold under the terms of a virtual power purchase agreement.
- Provided counsel to the tax equity investor in the investment in a 420 MW of solar plus 40 MW of battery storage project located in Andrews County, Texas, near existing oil and gas infrastructure in the Permian Basin.
- Representation of municipally owned utility in negotiating a long-term retail supply arrangement for supply from a renewable facility to an industrial customer and obtaining retail tariff changes to accomplish the sleeving arrangement.
- Representation of municipally owned utility in negotiating a long-term power purchase agreement for supply from a 250 MW solar generation facility.
- Representation of river authority in negotiating a long-term power purchase agreement for offtake from approximately 140 MW of a 300 MW solar generation facility, including associated agreement for qualified scheduling entity services.
- Represented a developer of utility-scale solar power projects in connection with local tax incentives on their projects in Medina County, Fort Bend County, Ector County, Wharton County, Matagorda County, Refugio County, and Waller County.
- Represented a renewable energy company focused on developing utility-scale solar energy projects on their local tax incentives in Brazoria County and Wichita County.
- Represented a low-carbon energy company on their local tax incentives for 140 MW solar project on 700 acre-site in Fort Bend County.
- Represented a battery storage developer in the sale of 300 MW of battery storage projects on interconnection and electric regulatory matters involving treatment of battery storage in the ERCOT market.
- Represented a battery storage developer in connection with the development of a 300 MW battery storage project in Texas, including providing advice regarding regulatory matters, QSE, interconnection, tax, Dodd-Frank, finance, and preparation of a response to an RFP for power purchase for firming and stand-alone storage projects.
- Represented the buyer of battery distributed generation project on interconnection and electric regulatory matters related to membership interest purchase agreement and equity commitment option.
- Provided counsel to the lenders in the financing of six (6) utility scale battery storage facilities located in Brazoria, Calhoun, Reeves, Robertson, and Travis Counties, Texas.
- Served as counsel to transmission and distribution utility on interconnection agreement and regulatory matters related to service to distribution-level storage facilities.
- Served as regulatory counsel for a 100 MW battery energy storage project in Brazoria County, Texas.
- Served as regulatory counsel for a 100 MW battery energy storage project in Mason County, Texas.
- Served as purchase power agreement counsel for municipally-owned utility on request for proposal for firming and standalone storage projects.
- Representation of developer in the development of a Carbon Capture Utilization and Storage Project. Representation included the Joint Development Agreement between the co-developers of the project (which included the respective responsibilities of the co-developers for supply of CO2, construction and operation of the carbon capture facilities and transportation pipelines, and EOR activities, budgets, schedules, financial obligations, each co-developer’s rights to future projects, circumstances for termination and consequences thereof, buyout provisions, and restrictive covenants), the Master CO2 Supply Agreement (which included provisions for the buyer to install and construct the carbon capture facilities and pipeline, provision of services by the industrial source, granting of real property interests, the respective obligations for supply and take of CO2 and shortfalls in same, quality requirements, collateral requirements, rights to assign portions of the CO2 quantity to separate CO2 Supply Agreements under a structure that minimized the exposure for the buyer under the master agreement, implementation of procedures for Section 45Q credits, environmental matters and exclusivity), Project CO2 Supply Agreements for CO2 Floods, and the CO2 Flood Operating Agreements (which included circumstances for changes in the undivided ownership interests, restrictions on transfers, options to purchase assets and other terms to implement the terms of JDA.
- Representation of the owner in the development of a 281 MW gas-fired power generation facility in Texas with carbon capture technology to capture all carbon emissions, the sale of CO2 for use in EOR or disposal in secure geological storage, and counsel in connection with MRV requirements and Section 45Q tax credits.
- JW assisted in the development and support of legislation in Texas that provided significant tax incentives for the Petra Nova project. Jackson Walker worked with the client to ensure that the state incentive package was crafted to maximize the economic benefits for Petra Nova arising from state, local, and federal tax incentives. The legislation created the most comprehensive financial and regulatory incentive program in the nation for electric power generation technology that captures carbon dioxide and uses it in enhanced oil recovery projects while simultaneously storing or “sequestering” the carbon dioxide to abate climate impacts.
- Our attorneys have played a significant role in the development of law and policy in North Dakota relating to CCUS and EOR in their capacity as counsel to the Lignite Energy Council, several individual energy production companies, and with a JW attorney’s appointment to the Advisory Board of the Energy and Environmental Research Center (EERC). This work has included working with key state officials on the development and improvement of state regulatory and financial incentives in support of CCUS and EOR project development.
- JW has been active in the development of CCUS and EOR policy with state and local Wyoming officials in Mike Nasi’s capacity as counsel to the Energy Policy Network, which is funded by the Wyoming Infrastructure Authority (WIA), as well as his position as a member of the Policy Advisory Board of the Energy Council’s Center for Legislative Energy & Environmental Research (CLEER). This has included several presentations before Wyoming legislative committees and other public events, and the visitation of other states’ legislators to the WIA’s Integrated Test Center (ITC).
- In Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Virginia, and West Virginia, in his role as Special Counsel to the Southern States Energy Board (SSEB) (of which all these states are members), JW attorney Mike Nasi has participated in countless briefings, legislative hearings, and regulatory proceedings in support of CCUS EOR policy and technological development. This has included an active role in the preparation of CCUS EOR reports in conjunction with the Southeastern Regional Carbon Sequestration Partnership (a.k.a. SECARB), which facilitated the Plant Barry pilot scale development of the amine-based carbon capture technology later deployed at commercial scale at Petra Nova. This also involved close coordination of the 10-year carbon sequestration measuring, monitoring, and verification (MMV) pilot project administered by SSEB and SECARB, which further enhanced Mr. Nasi’s expertise as it relates to technical and legal issues associated with the Section 45Q tax credit.
- Representation of the owner in the development of a brownfield 35 MW biomass power project in New York. Jackson Walker provided counsel in connection with the procurement of major equipment, the hybrid-wrap engineering, procurement and construction contract, regulatory issues relating to physical sales behind the meter and ability to satisfy the requirements of NYSERDA and the NYPSC for the qualification of renewable energy attributes to be counted towards achievement of the Renewable Portfolio Standard Program goals, the sale of renewable energy credits, participation in a RFP issued by NYPA, the long-term energy and UCAP sales agreement structured as a swap transaction under the ISDA, the evaluation of known environmental issues, the evaluation of collateral requirements under the various contractual arrangements, and the evaluation of all aspects of the development for potential issues that may impact the project financing for the facility and proposals for the resolution thereof.
- Representation of the owner of a 49.9 MW geothermal power project in California in connection with the development of the project, including in connection with the engineering, procurement and construction contract, drilling and engineering services contract, and long-term power purchase agreement.
- Representation of the owner and operator of a landfill gas gathering system and a landfill gas processing facility located in Texas in connection with refurbishment of the facilities, operation and maintenance, gas sales, pipeline quality issues, and Section 29 credits. Subsequently, represented the owner in connection with the development of a power generation facility at the landfill gas site, including the negotiation of a long-term power sales agreement.
- Representation of a major private equity fund in structuring and negotiating an equity funding arrangement and a mineral interest acquisition and participation agreement for the accumulation of unleased and leased mineral interests in numerous counties in five states.
- On behalf of power generation and technology interests, our attorneys assisted in the drafting and passage of several pieces of legislation, the net result of which is the most comprehensive financial and regulatory incentive package in the nation for low carbon electric power generation technology and related carbon dioxide storage projects, including biomass projects and enhanced oil recovery projects. This culminated in the successful development, construction, and operation of the largest CCUS EOR project in the world – the Petra Nova Project in Thompsons, Texas. This work also involved the establishment of the nation’s first carbon sequestration verification program, which has since served as an initial model for similar such programs, including the Section 45Q credit. We also assisted in the drafting and passage of a first-of-its-kind grant program for electricity storage projects related to renewable energy that could pave the way for utility scale solar energy projects and further expansion of Texas wind energy.
- Jackson Walker represents the interests of the largest biodiesel blenders in Texas before the Texas Comptroller and the Texas Legislature to preserve the fuel excise tax exemption for biodiesel blends and smooth implementation of label and invoice requirements associated with claiming the exemption.
- Our attorneys have preserved key incentives and developed market protection mechanisms for the biodiesel industry and worked in concert with key statewide elected officials to establish the Texas Bioenergy Policy and Research Councils.
- Our attorneys were instrumental in the preservation and extension of key incentive programs essential to the continued growth of the renewable energy industry in Texas. Our attorneys also assisted in the drafting and passage of a first-of-its-kind grant program for electricity storage projects related to renewable energy that could pave the way for utility scale solar energy projects and further expansion of Texas wind energy.
- Assisted a client obtain leasing rights from the Texas General Land Office to more than 80,000 acres in the Gulf of Mexico for one of the first and largest offshore wind production projects in the United States.
August 16, 2022
By Ali Burner and Amy Baird
President Joe Biden is set to sign into law the Inflation Reduction Act, which is estimated to reduce greenhouse gas emissions by around 40% by 2030 and to invest $369 billion in energy security and climate change. This article summarizes how the new law impacts new and existing investors, developers, and producers in the energy industry.
November 16, 2021
‘Lawdragon’ Lists 15 Jackson Walker Attorneys Among 500 Leading Lawyers in Environmental, Energy, and Employment Law
Jackson Walker announces the selection of 15 attorneys to Lawdragon‘s list of the 500 leading practitioners in environmental and energy law and corporate employment law.
October 12, 2021
Above the Law has released its fourth annual Outside Counsel Rankings, which featured Jackson Walker among the list of the top 11 outside counsel in the energy industry. This marks the Firm’s fourth year to be ranked by clients in the energy sector.
October 11, 2021
Meghan Griffiths and Mike Nasi to Speak on Texas Power Grid, ERCOT, and Winter Storm Legislation at 2021 Gas and Power Institute
Meghan Griffiths and Mike Nasi will present on the electricity market and the legislative response to Winter Storm Uri during the Gas and Power Institute held on October 14, 2021. Jackson Walker proudly serves as a sponsor for the conference.
July 21, 2021
Tenaska Power Services wants a Texas federal court to toss a chemical manufacturing company’s suit challenging $15.8 million in costs from February’s historic winter storm, arguing it rightfully passed along charges imposed by Texas’ grid operator to the company. Olin is represented by Joseph A. Fischer III, Meghan Elaine Griffiths and William J. Stowe of Jackson Walker LLP.
July 12, 2021
Powering the Future, Together: D CEO Texas Energy Awards Recognize Leaders in Oil, Natural Gas, and Renewable Energy
Texas remains the top energy-producing state in the nation and a pacesetter in renewable energy, and the fourth annual D CEO Texas Energy Awards brings executives in oil, natural gas, wind, and solar together to recognize the shared impact and leadership of Texans across all forms of energy production.
June 11, 2021
The Electric Reliability Council of Texas Inc. and other defendants facing lawsuits over loss of power and water services during February’s deadly winter storm can consolidate 157 related cases in a multidistrict litigation pretrial court, a state panel has ruled. The Texas Supreme Court’s Judicial Panel on Multidistrict Litigation granted a request on Thursday to address the cases together after the defendants asked that they be grouped given the similar circumstances of the lawsuits that sprung up after Winter Storm Uri caused outages across the state.
June 8, 2021
Proposed Listing of Lesser Prairie-Chicken Under Endangered Species Act and Potential Impact on Energy Projects
By Jerry Webberman, Alicia French, Jesse Lotay, & Ben Rhem
On June 1, the U.S. Fish and Wildlife Service published a proposed rule in the Federal Register to list the lesser prairie-chicken under the Endangered Species Act. If finalized, the species would be listed as endangered in the Southern DPS, which is located in West Texas and New Mexico and overlaps with the oil- and gas-rich Permian Basin, and threatened in the Northern DPS, located in the Texas Panhandle, Oklahoma, Kansas, and Colorado. Public hearings to gather comments on the proposal will be held on July 8 and July 14, and all public comments must be submitted by August 2, 2021.
June 7, 2021
An endangered listing wouldn’t be a “death knell for industry,” but it would be a new regulatory burden for developers, making wind farm construction more difficult, said Jackson Walker partner Ben Rhem, who represents wind farm lenders and developers.
“Developers are going to have to be more careful, more thoughtful about where they’re siting their project,” Rhem said. “There may be certain areas where it becomes such a regulatory burden that it just makes sense to look elsewhere.”
May 20, 2021
Chambers and Partners Recognizes Jackson Walker Attorneys and Practices in 2021 USA and Global Guides
Jackson Walker is pleased to announce that Chambers and Partners has selected 41 attorneys and 14 departments for inclusion in the 2021 edition of the Global and USA guides.
Wind & Solar
Jackson Walker has represented clients involved in some of the most innovative wind and solar power projects in the country, including major wind energy developments in West Texas and a cutting-edge offshore wind project in the Gulf of Mexico.
Drawing on the experience of attorneys in several practice areas, we are able to assist with every aspect of wind or solar power project development from start to finish. Our services include:
- Incentives: Our attorneys have helped clients obtain economic incentives for renewable power development through tax abatements and ad valorum tax credits at the local level; and through the American Recovery and Reinvestment Act tax credit and grant programs at the federal level.
- Site control: We help clients perform due diligence and obtain exclusive development rights for renewable energy projects. Our attorneys have extensive experience negotiating leases, obtaining necessary easements and crossing agreements, and planning for all aspects of access, development and transmission for these projects.
- Project agreements: Our attorneys have experience negotiating and securing the agreements necessary for renewable project development, including equipment supply agreements; Engineering, Procurement and Construction (EPC) contracts; O&M agreements; interconnection agreements with transmission providers; renewable energy credit agreements; and Power Purchase Agreements. Our attorneys also have extensive experience in credit and risk mitigation arrangements, including guaranties, hedge and swap arrangements, and master netting agreements.
- Permitting: Although wind and solar power projects do not, in general, require as much permitting as other types of energy projects in Texas, where permits are necessary, our Environmental attorneys have extensive experience in negotiating the permitting process.
- Project finance: We have helped clients develop innovative strategies for financing renewable power projects through the use of tax equity partnerships and other financing structures.
Carbon Management & Section 45Q Tax Credit
As a long-term hedge against the regulatory risk associated with carbon dioxide emissions and to help secure energy security both here and abroad, our attorneys have worked extensively on projects developing carbon capture, utilization, and storage (CCUS) and enhance oil recovery (EOR). Jackson Walker attorneys help our clients navigate complex regulations in CCUS and Section 45Q tax credits and work to reform the rules in the agencies and the federal court system. Our services include:
- Project Development: Jackson Walker is a leader in developing innovative project development solutions for our energy clients, both domestically and internationally. Our Transactional, Tax, Energy, and Regulatory attorneys have deep experience with CCUS and EOR. They have demonstrated success in facilitating CCUS and EOR projects through a wide range of subject matter expertise and insightful creativity. Our innovative deal structures have both facilitated CCUS and EOR projects and delivered results for other types of projects that could be catalysts for CCUS project development.
- CCUS Incentives: Since 2003, attorneys in the firm’s Environmental and Legislative practice, as well as Tax practice, have been central to the development of state and federal incentives for the capture, transportation, utilization, and storage of carbon dioxide. Jackson Walker continues to play a central role in the development of expanded incentives in these areas, including enhanced tax and regulatory incentives, transportation-specific incentives, as well as provisions to address liability and ownership issues associated with geologic sequestration.
- Regulatory Reform and Related Litigation: Jackson Walker attorneys are uniquely positioned as counsel to energy-producing coalitions engaging in both litigation and regulatory reform related to the regulation of carbon dioxide. This includes constant contact with state and federal regulators, state and federal elected officials and presence in cutting edge litigation before the U.S. Courts of Appeals, including for the D.C. Circuit, and the U.S. Supreme Court.
Legislative & Regulatory
At Jackson Walker, our Environmental and Legislative attorneys work together to solve problems for our renewable energy clients. Our attorneys continually advocate their clients’ interests before the Texas Legislature and have been actively involved in creating incentive programs to encourage renewable energy research and production. Some of our recent successes include assisting with the drafting and passage of legislation that created incentives for energy storage projects, as well as electric power generation technologies involving biomass, algae, and other carbon sequestration projects; developing market protection mechanisms for the continued growth of the biodiesel industry; drafting and advocating the passage of legislation to establish the Texas Bioenergy Council; and participating in the Texas PUC’s Competitive Renewable Energy Zone (CREZ) plan to bring power from West Texas and the Panhandle to Texas’ major metropolitan areas.
Our Regulatory group represents energy clients in a broad range of federal and state regulatory matters, including exempt wholesale generators, retail electric providers, electric utilities, Public Utility Regulatory Policies Act (PURPA) qualifying facilities, interstate and intrastate natural gas pipelines and storage companies, and LNG facilities. Our lawyers represent clients in a variety of matters before the Public Utility Commission of Texas (PUC), FERC, the Texas Railroad Commission, the U.S. Coast Guard, the U.S. Minerals Management Service, the U.S. Department of Energy’s Office of Fossil Energy, U.S. Department of Energy’s National Energy Technology Laboratory, and the federal courts.
Our Chambers-ranked electric regulatory practice helps our electric industry clients protect themselves and seize opportunities. Our regulatory attorneys advise clients in matters related to sales and transfers of generation assets, mergers and acquisitions, wind and solar power purchase agreements, renewable energy credit agreements, shared facilities agreements, interconnection studies and agreements, permitting, public utility commission contested case and rulemaking matters, and regulatory compliance. In wholesale power market matters, we help clients navigate the increasingly complex rules and protocols of the Electric Reliability Council of Texas (ERCOT), Southwest Power Pool (SPP), and Midcontinent Independent System Operator (MISO).
Jackson Walker has assisted clients in connection with the development, construction, finance and operation of a wide range of energy related projects, including Carbon Capture Utilization and Storage projects, EOR projects, wind and solar power projects, pipeline infrastructure projects, solid fuels gasification projects, and gas storage projects.
- In the early stages of project development, we examine regulatory policies, legal structures and commercial issues that will affect the proposed project. Our development group includes Legislative attorneys who are active in lobbying regulatory agencies and who are able to assist clients with politically sensitive issues. Our Tax and Corporate attorneys assist in the structuring of partnership and joint venture arrangements, which include sophisticated tax allocation and ownership arrangements to maximize the investment objectives of our clients and their project partners.
- We assist with the wide range of transactions required for development of projects, including engineering, procurement and construction contracts, commodity purchase and sale agreements, trading and marketing transactions, wholesale and retail power purchase and sale transactions, fuel supply agreements, and operations and maintenance agreements. We have extensive experience in negotiating industry standard forms such as the EEI, GISB, ISDA, NAESB, Gas EDI, and the EEI Master Netting Agreement, as well as customized agreements. We are experienced in handling complex, project-specific issues, and our attorneys assist clients in structuring contracts according to the risk tolerance and flexibility of each client.
Jackson Walker has long been recognized for expertise in matters concerning energy lending. Our attorneys work extensively on both asset and balance sheet-based energy loan transactions. Jackson Walker has participated in the financing of energy projects utilizing a wide variety of limited recourse and non-recourse financing mechanisms, including structured debt and equity investments, construction financing, tax equity financing, hedging arrangements, securitizations, loan, security and intercreditor documentation, volumetric production payments, net profits interests, prepaid gas sales (including those financed with the proceeds of both taxable and tax-exempt bonds), off-balance sheet financing, including synthetic and other leveraged leasing structures, interest rate swaps and derivatives, and credit enhancement vehicles, and associated legal opinions necessary to complete such transactions. These financing transactions have included mezzanine debt, public offerings of taxable and tax-exempt debt, and intercreditor arrangements among lenders lending on a pari passu basis or on a senior and subordinated basis. We also have extensive experience in restructuring outstanding debt, managing debt holders’ meetings, and negotiating with institutional debt holders, underwriters, rating agencies, and credit enhancers.
Our state tax practice advises multi-state businesses and provides tax strategy advice relating to business mergers, acquisitions, and divestitures. We regularly assist developers, lenders, and investors in connection with state tax issues that affect renewable energy projects. These include evaluating and negotiating (i) EPC contracts and other related agreements to maximize sales tax savings through qualified exemptions, (ii) tax incentive agreements, including tax abatement agreements and property tax value limitation agreements under Chapters 312 and 313 of the Texas Tax Code and Chapter 380 and 381 of the Texas Local Government Code, and advising on ad valorem payment projections for financial modeling.
Our attorneys are industry leaders in renewable energy issues ranging from project development to state and national policy advocacy. Many of our renewable energy partners are former general counsel or chief executives of energy companies. Several of our renewable energy attorneys came to the firm from the Texas Commission on Environmental Quality and its predecessor agencies, the Railroad Commission of Texas, the Texas Attorney General’s Office, and the Texas Legislature.
Our environmental group regularly interacts with state and federal agencies with jurisdiction over projects and industries with potential environmental impacts, and we perform rigorous due diligence for clients potentially impacted by environmental laws.
From an environmental perspective, the most pressing issues in the development of renewable energy projects are ensuring the project will (i) avoid Recognized Environmental Conditions, (ii) limit any potential impact to endangered species, protected water bodies, and cultural resources, and (iii) obtain and comply with applicable environmental permits. We regularly provide due diligence review and advice to clients regarding these matters and others.
We regularly represent wind, solar, and carbon capture developers in connection with their site acquisition and control and assist developers, lenders, and investors in their due diligence review of renewable energy project real estate matters. Our attorneys have extensive experience drafting and negotiating ground leases, transmission easements, access easements, crossing agreements, mineral accommodation/surface use agreements, subordination agreements, estoppel certificates, and consents.
We also conduct large-scale due diligence, including survey and title review, providing curative solutions as issues arise, negotiating title policies and related endorsements and express coverage for easements and mineral exceptions, and performing the due diligence necessary to obtain exclusive development rights for wind energy projects.
Having advised participants in the oil and gas sector for more than 130 years, we are nationally recognized as one of the top practices in energy law. The expanding demand for energy has resulted in an increased demand for development of both oil and gas projects and renewable energy projects. In Texas, the mineral estate may be severed from the surface estate also increasing the potential for conflict between these types of projects.
Because the mineral estate has a priority right to use the surface, due diligence regarding the mineral owner and lessees interests is critical in evaluating the feasibility and risks in developing a renewable energy project. This is particularly the case for solar projects which require a more intense and exclusive use of the surface.
Our attorneys have extensive experience in legal doctrines such as the accommodation doctrine to benefit of the developer. We assist with analyzing the mineral ownership and its impact on surface development, evaluate and resolve title issues, and are adept at negotiating surface use agreements that permit both the mineral interest and surface estate holders to maximize their respective land use needs.