Energy

Concerns about climate change, grid reliability, energy independence and financial incentive, as well as consumer and governmental pressure to generate more energy from renewable sources, are all creating exceptional opportunities for energy providers, developers and investors.

The growth of renewable energy in the United States has been driven by federal and state incentives, including tax credits and grants that promote the construction of renewable energy facilities. The State of New York is on the cutting edge of these trends with aggressive energy policies – such as its Clean Energy Standard (requiring 50% renewables by 2030), the Reforming the Energy Vision initiative (which is reinventing antiquated utility models) and the $1 billion NY-Sun solar initiative. For example, by 2050, state renewable portfolio standards are projected to provide support for 76,750 megawatts (MW) of new, renewable energy in the United States.

This commitment to increase renewable energy supply, combined with inevitable increases in demand, provides stakeholders who develop, build, manage and invest in energy projects with new possibilities for growth. And Phillips Lytle has the experience and resources necessary to move these opportunities forward.

ENERGY LAW EXPERTISE

Our areas of energy expertise include:

  • Siting, zoning and environmental
  • Solar
  • Wind
  • Brownfield and landfill renewable energy projects
  • Public service commission and utility regulatory
  • Incentives, bonds and public finance
  • Power purchase agreements
  • Solar leases
  • Microgrids
  • Hydro
  • Biomass
  • Retail energy industry/ESCOs
  • Enforcement and investigations
  • Litigation and dispute resolution

Ultimately, the road from design to profitability is long and includes interactions with regulators, financiers, partners and community groups. Phillips Lytle guides our clients through these interactions with minimal delay. Our attorneys have forged strong ties with many of the influential decision makers in the public and private sectors, including legislative, regulatory and political figures, to ensure deadlines are successfully met. Each team has an identified lead Energy Law attorney who coordinates all team activities to ensure matters are handled in a cost-effective manner.

When necessary, our Energy attorneys collaborate with our Corporate, Banking & Financial Services, and Environmental attorneys, and our Energy Team works closely with the firm’s leading Litigation Team to protect clients’ interests. Our comprehensive approach to project management has produced significant results for many clients, including:

  • BQ Energy
  • Sunvestment Energy Group
  • SunEdison
  • Syncarpha Capital
  • First Niagara Bank, N.A.
  • Tarsier, Ltd.
  • CG Power Solutions USA
  • Family Energy/Summitt Energy
  • Ironclad Energy Partners

Our firm assists clients with FERC, ISO and New York State Public Service Commission issues, as well as local zoning ordinances. We have close working relationships with key officials, including senior-level engineers, permit administrators, regional attorneys and regional directors. We also assist stakeholders who want to capitalize on renewable energy incentives.

SITING, ZONING and ENVIRONMENTAL

Phillips Lytle works with stakeholders to complete their projects on time and on budget. We deliver unmatched knowledge about statewide, regional and local regulations and zoning ordinances to our clients – ensuring a project’s speed to market. We understand the environmental standards that must be met, and we know how to work effectively with the groups that may issue resistance.

We are recognized for our leading Land Use & Zoning Law Practice. Our attorneys assist a variety of clients from local business owners and developers to FORTUNE 500 companies with special, restricted and conditional use permits; site plan reviews; area and use variances; and rezonings. Our attorneys have participated in hundreds of environmental impact reviews pursuant to the State Environmental Quality Review Act (SEQRA). In fact, our firm has received the Chambers USA Award for Excellence in Environmental Law nine years in a row.

Over the years, we have facilitated numerous high-profile development projects. We’ve obtained government approvals and permits for hundreds of energy initiatives, including wind and solar facilities, as well as manufacturing plant expansions, telecommunications facilities, major infrastructure projects, residential projects, office buildings, and retail operations, many of which were the subject of significant community opposition.

SOLAR POWER

Solar energy, the most abundant and cleanest renewable energy source available, has unquestionably encountered boom times. Since 2006, this industry has experienced compound annual growth of approximately 60%. In New York, with the assistance of the $1 billion NY-Sun solar initiative, solar energy production has increased 575% from 2012 through 2015, adding more

than 525 MW. Phillips Lytle has worked with clients in a variety of solar-related projects across New York, from Long Island to the Buffalo-Niagara region. Examples include:

  • Represented a real estate investment trust (REIT) on structuring leases and power purchase agreements for solar installations on multiple storage facilities in multiple states
  • Represented a solar project developer on the development and siting of its power and storage project, including application for a grant
  • Represented a global solar project developer with complex New York regulatory matters, as well as drafting and negotiation of power purchase agreements, lease drafting and negotiations, as well as title review
  • Represented an investor in renewable energy projects with contract drafting and negotiations and project due diligence, including Public Service Commission, environmental and zoning regulatory counsel

WIND POWER

With the continuation of federal incentives, wind power continues a trend of tremendous growth across the United States. The industry recently hit a milestone of 75 gigawatts of installed wind power capacity. Wind now supplies more than 5% of U.S. electricity and is on pace to supply 10% of the nation’s demand by 2020 and 20% by 2030. Phillips Lytle works with developers and economic development agencies on wind energy projects, including land use, regulatory and environmental matters. In fact, our team was instrumental in the first-ever wind project built on a brownfield site.

BROWNFIELD AND LANDFILL RENEWABLE ENERGY PROJECTS

Phillips Lytle has unique experience assisting developers and investors with land use, zoning and environmental approvals; power purchase agreements; and financing for solar and wind projects on brownfields and landfills in New York. We have expertise in multiple disciplines, including energy, environmental and zoning, to obtain unprecedented speed to completion for our clients. Phillips Lytle has assisted clients with the development of approximately 70 MW of landfill- and brownfield-based solar and wind projects.

PUBLIC SERVICE COMMISSION AND UTILITY REGULATORY

Phillips Lytle’s Energy Team regularly assists clients with regulatory matters involving the New York Public Service Commission and local distribution utilities. Collectively, our Energy attorneys have decades of experience in regulatory matters before the Public Service Commission, including the unique perspective of a former Public Service Commission staff attorney.

Our Energy attorneys help companies navigate New York’s complex and ever-changing energy regulatory landscape, including Public Service Commission regulations, orders, initiatives and corresponding utility tariffs. Our team has extensive experience addressing regulatory matters in both formal petitions and informal agency matters, and assists clients with proceedings under Public Service Law Article 10 (generating facility siting) and Article VII (transmission facility siting).

Article 10 Electric Generation Siting

Phillips Lytle provides assistance navigating the complex Article 10 siting process with the Public Service Commission’s Board on Electric Generation Siting and the Environment for approval of new electric generation and re-powering projects, including large-scale solar and other renewable energy resources. Phillips Lytle’s deep bench of experienced energy and environmental attorneys can help identify and address regulatory and stakeholder issues, often before they arise. Through each step of the process, from initial public involvement, to preparation and submission of the application, through the administrative hearing process, and final Siting Board approval, Phillips Lytle’s Energy Team can efficiently manage and advance projects through critical agency and public reviews, while ensuring tight deadlines and budgets are met. Our team can also assess whether a new project or expansion of an existing project would trigger Article 10, and help secure a declaratory ruling from the Public Service Commission where Siting Board review is not required so projects can be expedited through local approvals.

INCENTIVES, BOND AND PUBLIC FINANCE COUNSEL

Phillips Lytle helps clients capitalize on the most advantageous mix of local, state and federal incentives available for development projects. As a Red Book firm in public finance, we also offer counseling in all aspects of bond issues and other public finance transactions. As our firm has its own Banking & Financial Services Team, we have a long-established reputation as a premier banking law firm with clients including major financial institutions involved in lending to energy-related projects, and we were involved in one of the first transactions with NY Green Bank.

Power Purchase Agreements

Our Energy attorneys have represented various clients on issues related to contracts and power purchase agreements, including structuring, negotiating and executing transactions. In addition, the team has drafted and negotiated Payment in Lieu of Taxes (PILOT) agreements associated with solar and wind projects and related advice regarding the New York Real Property Tax Law 487 tax exemption. Some specific examples include:

  • Represented a developer in obtaining state and federal grants for a community-based crowd financing mechanism for mid-sized solar projects. This included drafting a template for community power purchase agreements and related corporate financing documents, as well as obtaining necessary governmental reviews and approvals.
  • Represented a developer constructing four power stations (two solar, one gas-fired and one biomass) in a $2 billion project on a military base located in New Jersey. We assisted the developer with coordinating the $2 billion financing for the project as well as negotiating the power purchase agreements for sale of the electricity to the grid and to the U.S. government. We also handled all the environmental approvals needed for these developments.
  • Represented a green energy company in negotiating a power purchase agreement with UK-based utility companies that were obligated to purchase green energy.
  • Negotiated a power purchase agreement on behalf of a local government acquiring a closed military base that needed its own source of power.
  • Represented a solar developer with its proposed 4 MW brownfield-based project. This included environmental, land-use and regulatory matters, as well as NYISO- and NYSERDA-related issues. We also assisted with power purchase negotiations and PILOT agreements, and obtained the necessary local approvals for this utility-scale solar project on a large urban brownfield.
  • Represented a client in power purchase agreements and leases for rooftop solar projects located in several states co-located on properties owned and operated by a publicly traded national REIT.

SOLAR LEASES

Phillips Lytle Energy attorneys have extensive experience assisting clients with solar lease drafting and negotiations. We also assist a number of our energy clients with title matters related to their leasing and development projects. In this area, Phillips Lytle leverages its extensive leasing and real estate practices.

MICROGRIDS

The Phillips Lytle Energy Team has direct Public Service Commission regulatory experience with an existing, fully operational microgrid, and our attorneys have extensive knowledge of New York State’s unique “lightened” regulatory approach that created one of the largest microgrids in the United States.

HYDROPOWER

We have represented major stakeholders in the relicensing of the New York Power Authority’s 2300 MW Niagara Power Project, where we handled negotiations and drafted the settlement documents and related FERC filings and proceedings.

BIOMASS

Biomass is another area emerging as a key player in the renewable energy marketplace. Phillips Lytle is working with stakeholders involved in biomass projects across New York State to facilitate the siting, financing and development of multiple biomass projects. Our clients include developers, investors, lenders, biomass suppliers and off-take purchasers.

RETAIL ENERGY INDUSTRY/RETAIL ENERGY SERVICE COMPANIES (ESCOs)

In addition to assisting stakeholders with traditional and renewable energy projects, our Energy Team also assists numerous ESCOs with a broad range of matters, including Public Service Commission and utility regulatory issues, commercial and corporate matters, utility disputes, and state investigations.

ENFORCEMENT AND INVESTIGATIONS

Our Energy attorneys have worked on the defense of various enforcement proceedings and investigations, including a Public Service Commission “Order to Show Cause” and “Notice of Apparent Failure” threatening license revocation, New York State Attorney General investigations, and New York Department of State enforcement proceedings.

LITIGATION AND DISPUTE RESOLUTION

From regulatory disputes to business disputes, we have brought many conflicts to successful resolutions. With decades of experience in energy litigation, we have resolved disputes involving state and federal preemption of local land use regulations, federal preemption of state regulations, leasehold claims, unjust taxation, disloyal business partners and employees, environmental liabilities, brownfields, engineering malpractice, class action defense, defective products, toxic torts, labor and employment matters, contracts, real estate, eminent domain, vendor fraud and securities law. When project approvals or regulatory issues are in question, our Energy Team engages our Litigation attorneys to protect our clients’ interests.

Energy