- Sutherland

Climate Change

The urgency of climate change issues is requiring businesses to respond and plan in innovative ways. At Sutherland, we are helping our clients anticipate and respond to these rapidly changing regulatory and business realities.

Our deep understanding of the industries most impacted by state, federal and international climate change policy means we have the hands-on experience needed to manage the changing business landscape and create opportunities for our clients most impacted by these climate-change developments.

Sutherland’s energy, renewables, environmental and trading experience, along with tax, timber, real estate and intellectual property, means we have the resources and knowledge in place to stay in front of new responsibilities and opportunities. We know the emerging climate change developments and can craft smart solutions.

Environmental

Siting
Permitting
Brownsfields
Environmental impact review

As state, regional, federal, and international attention to climate change grows, Sutherland stands with its clients in facing and finding business opportunities from these developments. Sutherland monitors and counsels its clients on developing trends. Our environmental lawyers are deeply familiar and experienced in business planning, compliance, and liability management strategies under historical and existing emission control frameworks.

There is little doubt that clients will face regulation of their emissions of carbon dioxide and other greenhouse gases (GHG). Regulation has commenced in overseas markets and in several cities, states and regions of the country. At the federal level, Congress has directed the Environmental Protection Agency to institute an emissions reporting framework within the United States. Consequently, companies in all regulated sectors must be prepared to take stock of their current emissions, establish baselines and implement solutions to achieve regulatory objectives as those objectives become binding. Whether a business chooses to meet its objectives by employing control technologies, reducing energy consumption, purchasing emission allowances or participating in emission-offset projects, it will have to undertake material business planning, resource allocation and investment to address these emerging regulatory challenges. Sutherland offers concrete guidance in these activities.

In addition, publicly-traded companies will face increasing pressure to measure and disclose business and financial risks that climate change regulation or climate adaptation may pose. Sutherland assists clients in managing these issues and other prospective environmental liabilities before they arise and preventing crises from occurring. We are able to develop solutions to issues as they arise and where necessary prepare comprehensive yet user-friendly policies and procedures to facilitate compliance, sustainability, and accountability to shareholders while minimizing cost and operational disruption.

Moreover, with a changing regulatory landscape, new business opportunities will arise in building and installing the infrastructure to manage and serve a carbon constrained economy, including the development of renewable and clean energy facilities, and the capture and sequestration of GHG. Sutherland possesses the knowledge, experience, and creativity by which to assist clients in identifying and leveraging these business opportunities, while efficiently obtaining the requisite environmental approvals and managing necessary stakeholder involvement that is critical in pursuit of these opportunities.

Our full-service environmental practice regularly advises clients in carbon-intensive industries on air, water and waste issues. We have represented clients in permit, enforcement, and other administrative, civil and criminal proceedings related to a variety of EPA permit programs, including Title V, New Source Review (NSR) Prevention of Significant Deterioration (PSD), and the National Pollutant Discharge Elimination System (NPDES), among others. Furthermore, we have advised clients regarding and assisted with the purchase or sale of emission allowances under existing NOx and Acid Rain Programs. Any of these programs may serve as the model for EPA’s efforts under a GHG regulatory scheme. Familiarity with these programs gives Sutherland unique insight into the design and function of future permitting, reporting and enforcement programs. Thus, we bring ready advice and practical thinking to our clients’ businesses in the face of this evolving area of the law.

Renewables

Project finance
Tax credits and incentives
Transmission and interconnection
Power purchase agreements
Regulatory compliance

Renewable energy has transformed from a niche industry to the subject of daily headlines and a key component in addressing climate change issues. As the demand for renewable energy grows, critical changes are occurring—from corporate sustainability initiatives, to community activism, to state renewable portfolio standards, to regional climate change initiatives, to federal tax incentives, to global market trends in financing.

Our lawyers have experience in every aspect of the process of developing a renewable energy project. In the pre-development stage, we provide strategic advice regarding the siting process and the structuring of project entities and joint ventures. We navigate the permitting process from start to finish, including environmental permits and approvals and federal and state commodity-specific regulations. We help you make your commercial deals—including EPC contracts, fuel supply contracts, REC and emissions sales and power purchase and sale arrangements. Our representation is forward looking, to support the ultimate debt and equity financing of the project, including tax equity financing to optimize the value of federal production tax credits.

Policy and Government Relations

Monitoring international, national and state climate-change policy developments
Providing strategic advice and business planning
Advocating and lobbying

Emissions Trading

Formulating and implementing emissions trading strategies
Developing projects and structuring commercial transactions
Compliance

Tax Incentives and Customs

Tax credits and incentives
Business planning

Understanding federal and state tax incentives for investments in, and production of, renewable and alternative forms of energy is now essential to all industries and businesses. Sutherland assists its clients in maximizing available renewable and alternative energy tax credits and other governmental incentives, including through the monetization of tax credits. Sutherland also advises clients on customs issues attendant to the import of products including ethanol and biodiesel.

Sutherland works with our clients in structuring transactions to minimize the incidence of taxation and when necessary, in representing our clients in IRS audits and tax litigation. We also closely monitor legislation that affects tax incentives, customs duties and preference programs, updating clients regularly about the practical impact of proposed legislation and new laws on their businesses.

Timber

Project evaluation
Carbon offsets
Land use and real estate

Buildings and Construction

Tax incentives
Project finance
Green certification

Green building practices are the subject of new federal grant programs, tax credits, low-interest loan programs and carbon credits under proposed federal cap-and-trade legislation, just to name a few.

Attorneys in Sutherland's Construction practice advise clients on the coming changes, and on ways to take advantage of existing opportunities, such as the Leadership in Energy and Environmental Design (LEED) Green Building Rating System and state programs that allow building owners to sell generated or conserved surplus electricity back to the grid. We also have substantial experience in drafting contracts for green projects and in resolving construction disputes arising out of renewable energy plants.

SEC Disclosure and Enforcement

SEC reporting and disclosure
Corporate policies and practices
Compliance

As politicians and regulators continue to address the crucial issue of climate change, investors are using their influence to ensure corporate accountability and support sustainability efforts. In recent years, there has been a surge in shareholder resolutions promoting environmentally responsible policies and a growing number of climate-focused investor groups seeking to reward companies for “green” actions. Given the growing awareness and concern surrounding climate change, public companies are being pressured to disclose their carbon emissions and assess the risk of liability as a result of their footprint. As the Securities and Exchange Commission (SEC) grapples with the scope of emissions reporting requirements and liability assessments, companies are reviewing their compliance policies in light of these changing dynamics and need to understand the potential consequences of their actions.

Sutherland routinely advises a wide range of clients spanning all major industry sectors in connection with securities law reporting requirements, proxy solicitations and shareholder resolutions. In order to provide tailored legal services, Sutherland attorneys work to understand each individual client's business and the industry in which it operates. This personalized attention is particularly critical in the area of climate change given the public’s growing concern and the potential for a more complex regulatory environment.

Litigation

Environmental claims (e.g. Clean Air Act, Endangered Species Act, NEPA)
Private actions (e.g. nuisance, negligence)
Regulatory enforcement
Pre-emption

Sutherland lawyers have extensive experience representing clients from nearly every industry that could be affected by the increasing tide of climate change litigation, including the securities, insurance, energy, construction, manufacturing, automotive and aviation industries. In the aftermath of Hurricane Katrina, Sutherland represented clients in some of the earliest climate change cases in Louisiana and Mississippi. Nearly one-third of our more than 500 lawyers are litigators, and we have tried and argued cases in the U.S. Supreme Court, all 13 circuits of the U.S. Courts of Appeals, the Court of Federal Claims, and hundreds of federal district and state trial and appellate courts. Marrying this litigation experience with the lawyers from our Energy and Environmental practice creates the ideal team for shaping the interpretation of climate change laws and defending the many climate change challenges that energy and other regulated industries are certain to face as the world moves forward with curbing GHG emissions.

Patent prosecution
IP for clean technologies (e.g. carbon sequestration and capture)
Copyright
Enforcement

Sutherland’s vigorous Intellectual Property (IP) practice offers extensive experience in securing, licensing, and enforcing intellectual property rights for a range of technologies applicable to climate change, energy, and environmental concerns. Whether our clients desire to license a particular technology, protect their own innovations, or seek advice on potential IP litigation issues, Sutherland attorneys have the necessary technical background and legal expertise to assist. For example, our full-service IP practice includes developing opinions regarding patent (in)validity, (non)infringement, and freedom-to-operate; preparing and prosecuting patent and trademark applications; intellectual property due diligence reviews in connection with mergers and acquisitions; trade secret and IP litigation; and intellectual property audits and evaluations, all with a view toward achieving our client’s overall business objectives.

One way in which Sutherland sets itself apart is by the extensive technical experience of its attorneys, which allows them to appreciate the unique legal issues within the climate change domain. Many of Sutherland’s more than 45 IP attorneys have worked as engineers or scientists and have a deep appreciation of cutting-edge innovations in the areas of green building technologies, ethanol-based and biodiesel fuels, hydrogen production, carbon sequestration, solar- and wind-power technologies, clean coal and CNG-related inventions, and flex fuel and hybrid technologies. Our experience and partnering approach allow us to appreciate the unique legal issues associated with such technologies and envision creative solutions.