Climate Change

Climate change presents a major challenge for business. Predicted increases in the intensity of destructive weather events and hotter global temperatures may cause significant changes to ways of life and doing business.  The impact of a decarbonizing and more energy efficient global economy will be far-reaching, and a wide variety of industries are currently assessing climate change and  resiliency strategies, regulatory compliance challenges, and emerging market opportunities.

Key Contacts

Krista K. McIntyre Partner Boise, ID
Wesley A. Miliband Of Counsel Sacramento, CA
Timothy L. McMahan Partner Portland, OR
Allison C. Smith Partner Sacramento, CA
See all contacts
Overview

At Stoel Rives we understand the complexity facing businesses developing climate change strategies, and we have the knowledge and experience to reconcile the variety of regulatory and market-driven forces. The influences of new regulatory policies, transactions and diverse stakeholders, plus the emerging venues for airing points of view, are many and varied. Our multi-disciplinary industry teams connect clients with lawyers who know their industry – including the energy, manufacturing, agribusiness, construction, financial, insurance and retail sectors.

Our clients in these industries seek certainty and opportunity in a changing world. Our lawyers help clients prepare for risks and develop opportunities in an evolving economy, where new markets are emerging and traditional markets are adapting to the many ramifications of climate change. With Stoel Rives’ guidance, our clients are implementing proactive strategies to thrive amid climate-driven uncertainties, including new approaches to product development, construction, raw materials procurement, supply chain logistics, compliance and litigation:

  • Our environmental practice, one of the largest in the nation, is a leader in helping clients navigate the intersections of climate policy, rapidly evolving regulatory initiatives, and novel litigation initiated by environmental advocacy groups.
  • Our energy practice, nationally recognized for our work with both renewable and conventional energy producers, is a key participant with energy companies on large project development and business and tax strategies, as well as tactics that help mitigate the various impacts of climate change.
  • Our intellectual property and corporate practices are supporting clients in development, protection and monetization of adaptive actions, technologies and innovative transactions in response to climate change.

Our vibrant environmental and energy practices are anchored in the Western states and extend nationally to the Midwest and East. The states are leading on policy, market, regulatory and innovation. This trend will continue, and we are uniquely positioned to counsel clients in the most dynamic areas of the law. This work is setting national precedent, and Stoel Rives is on the leading edge.

Climate change has become an inescapable and critical business consideration and a source of opportunity as well as risk. As our clients know, Stoel Rives delivers rapid and comprehensive legal counsel, enhanced with specific industry expertise, which is especially important in this dynamic regulatory and economic time. At the tabs above, learn more about the work we do in this area, our clients and our team. Then contact one of our team members to discuss how we can help you design and implement your climate change strategy.

 


Matters

Greenhouse Gas Regulatory Development and Compliance
Stoel Rives counsels energy and industrial clients throughout the United States on evolving regulatory programs aimed at reducing emissions associated with climate change. We work with clients and regulators to ensure that compliance programs balance business objectives, with meaningful environmental outcomes. 

  • Represented a consortium of large Minnesota industrial power users in a stakeholder process to develop Minnesota’s state implementation plan for the Environmental Protection Agency’s Clean Power Plan, an ambitious federal program to regulate carbon dioxide emissions from existing power plants under the Clean Air Act. The Clean Power Plan rules were published in 2015 and stayed by the United States Supreme Court in February 2016, but Minnesota regulators are committed to continuing implementation activities and have continued the stakeholder process.
  • Defended fuel companies in California Air Resources Board enforcement action for failure to report greenhouse gases under the California mandatory greenhouse gas reporting regulation and failure to register under the California cap and trade program.
  • Advised AltaGas on reporting and notification requirements for newly acquired facilities related to change in ownership and transfer of allowances under the California cap and trade program, and California and federal mandatory greenhouse gas reporting regulations. 
  • Represented the Western States Petroleum Association (WSPA) in litigation and rulemaking proceedings relating to climate change and environmental policy in Washington and Oregon, including Washington’s proposed Clean Air Rule and the Oregon low carbon fuel standard.
  • Represented the Alaska Oil and Gas Association (AOGA) in legislative and regulatory matters concerning climate change, federal endangered species and critical habitat, marine mammal regulation, offshore and onshore oil and gas leasing, exploration and development, and coastal zone management.
  • Participated in energy regulatory reform in the Minnesota e21 Initiative on behalf of a group of large industrial consumers. The Initiative aims to develop a more customer-centric and sustainable framework for utility regulation in Minnesota.
  • Regularly represent clients in obtaining air quality permits that involve determinations of control technologies for greenhouse gases.
  • Regularly advise clients in connection with California cap and trade regulation.

Environmental Litigation
Stoel Rives’ environmental litigation team handles matters that involve regulatory actions designed to address the impacts of climate change. We have successfully guided clients through the most challenging environmental cases, including those filed under the Endangered Species Act (ESA); National Environmental Policy Act (NEPA); The Federal Land Management and Policy Act (FLMPA); Clean Air Act (CAA); Clean Water Act (CWA); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or "Superfund"); and state cleanup liability statutes. We also represent clients in related environmental, permitting, natural resources, federal land statutes, pesticide-related and wildlife litigation.

  • Represented Western States Petroleum Association in a citizen lawsuit that sought to compel the Washington State Department of Ecology and other regional agencies to regulate GHGs from the state’s five oil refineries. In a unanimous panel decision, the Ninth Circuit found that the plaintiffs lacked standing. Specifically, the Court found that the plaintiffs failed to demonstrate state regulation of GHG emissions from refineries would have any locally quantifiable impact on global climate change effects in Washington.
  • Represented Alaska Oil and Gas Association in defense of polar bear ESA 4(d) rule and "threatened" ESA listing instead of "endangered" listing. The petition sought to list polar bears on the basis that global climate change caused by carbon emissions may lead to the loss of summer polar sea ice within 100 years. This proposal reflected efforts by conservation advocacy groups to draw attention to global climate change issues and the lack of a comprehensive national carbon emissions policy.
  • Represented Alaska Oil and Gas Association and American Petroleum Institute in connection with a successful federal ESA lawsuit against the National Marine Fisheries Service that challenged the "threatened species" listing of the Beringia population of bearded seals under the Endangered Species Act. The suit argued, among other things, that there was no scientific evidence linking climate change impacts to any harm to the bearded seal, that the listing decision was based on speculation about what could happen in a century as a result of global climate change, and that the theoretical future impact on the species is scientifically impossible to determine. The U.S. District Court for the District of Alaska agreed. The favorable result obtained by AOGA is one of less than a handful of successful challenges to a listing decision in the history of the ESA. 
  • Represented the Washington State Snowmobile Association (WSSA) as intervenors in a federal district court action challenging the U.S. Forest Service’s decision to issue five-year special-use permits to several WSSA members on ESA and NEPA grounds. After we obtained dismissal of the plaintiffs’ ESA claims, the district court granted summary judgment in WSSA’s and the U.S. Forest Service’s favor on the NEPA claims.  No appeal has been filed.
  • Represent Pacific Lumber Company in the defense of its Habitat Conservation Plan (HCP) and Incidental Take Permits (ITPs) for aquatic and terrestrial species issued pursuant to both the federal and California Endangered Species Acts. The regime the HCP establishes for Pacific Lumber’s 200,000+ acres is the most advanced of any governing timber harvesting on private lands in California. The HCP and associated state ITP are currently being challenged as inconsistent with the California Endangered Species Act.

Energy Litigation
National attention to climate change impacts is creating opportunities for our renewable energy clients to develop alternative sources of power, and for our industrial clients to rethink their energy supply strategies. Our energy litigation team couples deep litigation experience with knowledge of energy transactions and regulations to tackle the regulatory or commercial impediments to the integration of renewable power sources. 

  • Represented EDF Renewable Energy (formerly enXco) in a dispute with Indiana Power and Light (IPL). IPL sought to terminate a 20-year Power Purchase Agreement (PPA) with a Minnesota wind farm being developed by EDF. IPL claimed to have received an unfavorable order from the Indiana Utility Regulatory Commission and considered this to be reasonable grounds for termination of their PPA, but following our arbitration complaint, IPL rescinded the termination.
  • Represented a wind generation operator and developer in litigation with a California windpark owner over operation and maintenance contracts, and obtained jury verdict in our client's favor after a month-long trial in Orange County Superior Court. We also represented the client in the subsequent appeal to the Fourth District Court of Appeal, successfully defending the judgment and obtaining an award of attorneys' fees on remand to the trial court. 
  • Represent Avangrid in defense of a claim for refunds pursued by the California Attorney General, the California Public Utilities Commission and the state’s two largest investor-owned utilities. The claim relates to a capacity contract signed by Avangrid in July 2001, following the end of Western Energy Crisis, and the complainants have asserted that the Federal Energy Regulatory Commission should order Avangrid to pay refunds under the contract due to the high prices and manipulation allegedly affecting the California market at the time. The case is on remand from the U.S. Supreme Court’s Morgan Stanley ruling in 2008.
  • Represent the owner of the Bottle Rock Power Plant, a geothermal power plant in Lake County, California, with a nameplate capacity of 55 MW. We have advised the client on licensing and permitting a steam field expansion project, including defending and settling a lawsuit challenging the approval of the steamfield expansion. We are currently defending an administrative complaint and a separate lawsuit filed against the project related to decommissioning funding, advising the client on a petition to amend its state operating license to address the decommissioning funding dispute, and assisting the client with efforts to obtain an extension of an existing steamfield use permit.
  • Represented EDF Renewable Energy (formerly enXco) in a dispute with Indiana Power and Light (IPL). IPL sought to terminate a 20-year Power Purchase Agreement (PPA) with a Minnesota wind farm being developed by EDF. IPL claimed to have received an unfavorable order from the Indiana Utility Regulatory Commission and considered this to be reasonable grounds for termination of their PPA, but following our arbitration complaint, IPL rescinded the termination.
  • Represented Northeast Kansas Bioenergy, LLC, against a prominent engineering firm in an action in Kansas City, Missouri, for breach of an engineering services agreement and overcharges relating to our client's planned development of a biodiesel/starch ethanol plant in Kansas. The case settled for a value satisfactory to our client.
  • Represented Otoka Energy in the permitting and environmental review for the repowering of the Buena Vista Biomass Project, from a 18.5 MW lignite cogeneration facility in Amador County, California, to a woody biomass-fueled facility. Our work included assisting with the preparation, review and approval of environmental documents, a conditional use permit, an authority to construct permit and other entitlements from the County, the Amador Air District and other involved public agencies. We successfully handled multiple administrative appeals on behalf of the applicant and served as defense counsel in two lawsuits challenging the project in Amador County Superior Court.
  • Numerous appearances before the Minnesota Public Utilities Commission on such matters as utility resource planning, community solar gardens, certificate of need proceedings, the Minnesota solar energy standard, rate design and renewable energy credits, including the following recent dockets. 

Renewable Energy & Storage
Stoel Rives has the nation’s leading renewable energy practice, assisting utility and independent developer clients throughout the United States and internationally. Our work is at the utility scale, as well as a wide range of distributed generation and energy storage clients. Our project development work ranges from site procurement to permitting, equipment procurement through construction, project finance, and in the purchase and sale of power, as well as project sales and mergers and acquisitions. 

Renewable Energy

  • Assisting EDP Renewables in the development of an Eagle Conservation Plan consistent with the Service’s Eagle Conservation Plan Guidance. EDP Renewables has been in the process of seeking a golden eagle take permit under the Bald and Golden Eagle Protection Act for an existing wind facility built before the U.S. Fish and Wildlife Service had authorized eagle take permits. While the pending eagle take permitting process is underway, we are assisting EDPR in conservation and avoidance measures including utilization of biological monitors. We have also been assisting EDPR in the defense of past golden eagle fatalities being investigated by the U.S. Department of Justice.
  • Represented RES North America and Puget Sound Energy in the permitting and legal defense of a large wind resource area spanning two Eastern Washington counties. The “Lower Snake River” project, along with others within this resource area, is providing more than 1500 MW of power to customers of PacifiCorp, Portland General Electric, as well as Puget Sound Energy.
  • Assisted First Wind in achieving amendments to the local zoning code to enable wind generation facilities in Whitman County, and subsequently permitting the project under the revised local standards. Work included environmental compliance, including noise standard compliance, Bald & Golden Eagle Act, SEPA and ESA issues, and successfully defending the project during local administrative and judicial appeals.
  • Represent most of the operating utility scale wind energy projects in Oregon and Washington, including all aspects of development, permitting, power procurement and sales, as well as construction and operations.
  • Represented Enel Green Power North America, Inc., in the tax equity financing for Enel’s Aurora Solar Project in Minnesota, a 16 site, 100 MW project with Northern States Power as the offtaker.  The tax equity investor will make a $145 million investment in the project.
  • Represented Whistling Ridge Energy LLC and its parent company SDS Lumber in achieving state and federal permitting for the Whistling Ridge wind energy facility. The project, siting a wind energy facility in commercial forest lands, located in close proximity to urban load centers, is the first of its kind in the Northwest, The site certificate was approved after the completion of a NEPA and SEPA Final Environmental Impact Statement (FEIS) issued jointly by BPA and the State of Washington. Subsequently, we successfully defended the project during extensive agency and judicial litigation. 
  • Advised a wave energy developer on strategic permitting issues for a wave energy project on the Oregon coast, including federal licensing, ESA and MMPA permitting, and coastal zone issues; negotiated and drafted agreement with federal, state and non-governmental stakeholders resolving all issues for a 35-year license term.

Storage

  • Assisted a Chinese energy storage company with U.S. securities law compliance, including 13D and Form 3 SEC filings, in connection with its acquisition of a majority equity interest in a U.S. NASDAQ-listed lithium titanate battery manufacturer. 
  • Represented a Fortune 500 aerospace company in negotiating contracts for the installation of Tesla battery storage facilities and Bloom fuel cells. 
  • Assisted a technology provider and EPC contractor with EPC agreements for construction of utility owned storage facilities. 
  • Represented EDF Renewable Energy (formerly enXco) (EDF) with a joint venture with River Power to develop pumped storage facilities in North America. The joint venture’s initial efforts will focus on large scale development in the Northwest region of the United States. 
  • Assisted EDF in negotiation of the joint venture and in performing due diligence, including corporate, water rights, tribal, real estate and licensing issues. 
  • Represented energy storage developers in California Public Utilities Commission's proceeding to implement energy storage procurement targets pursuant to Assembly Bill 2514. 
  • Assisted RES North America in negotiating interconnection agreements and construction services agreements for seven of their battery storage projects located in the PJM Interconnection region. 
  • Negotiated an energy storage agreement with Southern California Edison for Altagas’ Pomono energy storage project. We also worked on equipment supply agreements for the project and advised on permitting. 

Carbon Sequestration and Storage
With our deep experience in the oil and gas, as well as utility scale energy projects, Stoel Rives has been engaged at the early stages of this developing technology to assist with property access, regulatory compliance, transactions, and technology development. We are national leaders in advice to clients as sequestration and storage technologies are developed and implemented.

  • Advised private property owners on Bureau of Land Management issues related to carbon sequestration and drafted carbon sequestration easements covering thousands of acres throughout the United States.
  • Advised Potlatch Land and Lumber on undertaking the creation of a forest offset project under the California cap and trade program. Negotiated a carbon development services agreement with Finite Carbon on behalf of Potlatch.
  • Advised Square 1 Bank on investment in a forest offset project that would generate credits for the California cap and trade market. 
  • Advised clients on carbon sequestration projects on private, state and federal property.
  • Advised clients on UIC Class VI injection wells for carbon sequestration.
  • Negotiated and drafted carbon sequestration easements covering thousands of acres throughout the United States.
  • Negotiated and drafted carbon dioxide pipeline easements, carbon dioxide offtake agreements and agreements to acquire carbon offsets from carbon sequestration projects.
  • Represented clients before the U.S. Treasury Department regarding Section 45Q tax credits for carbon sequestration.
  • Drafted legislation and administrative rules to aid in implementing carbon sequestration projects.

New Technologies for Transition Fuels and Natural Gas Services Integrating Renewable Energy
As the economy adapts to decarbonization, we are assisting our natural gas and liquid fuels clients in the implementation of innovative strategies and technologies that provide alternative fuels. These projects include methods to integrate renewable energy and to supply substitute fuels in both regional and global markets. 

  • Represented NW Natural Gas Company in connection with all Oregon Energy Facility Siting Council  permitting and compliance matters for the NW Natural Mist Underground Natural Gas Storage Field. In 2016 we successfully secured local, state and federal permits for the construction and operation of an expanded underground natural gas storage field and installation of a 13-mile, 24-inch high-capacity transmission pipeline that will deliver “on demand” gas service to Portland General Electric’s Port Westward II gas generation facility and integrate renewable energy into the Portland metropolitan electrical grid.
  • Representing Northwest Innovation Works in connection with permitting and development of three natural gas to methanol plants proposed for locations in Oregon and Washington. The plants will manufacture methanol from natural gas for export to Asia. We are assisting with state and local permits, including air, land use, stormwater, shoreline and other environmental permits, as well as all other aspects of project development.
  • Representing a developer in the procurement of local, state and federal land use, regulatory and environmental permits, concurrently with undergoing SEPA and NEPA review, regarding development of a first-of-its-kind LNG conversion, storage and marine LNG fueling facility in the Port of Tacoma, Washington.

Water Resource Infrastructure Development
Critical water infrastructure needs are emerging in the Western United States, particularly in areas with persistent drought conditions. Stoel Rives is working closely with clients and regulators on solutions that secure water allocations and bring balance to regulatory policies. 

  • Advising on compliance with and strategies related to implementation of California’s Sustainable Groundwater Management Act, commonly known as SGMA, including formation of Groundwater Sustainability Agencies and Groundwater Sustainability Plans.
  • Special Counsel to private landowners and entities including energy companies, agribusiness, vineyards, cemeteries and mutual water companies seeking to preserve and enhance water rights and long-term water supplies, including recycled water supplies.
  • Lead trial and litigation counsel on several matters involving water rights and water supply issues including service as lead trial counsel through several phases of trial for a public water supplier in California’s largest groundwater adjudication commonly referred to as the Antelope Valley Groundwater Cases.
  • Represented the City of Banning, California in a case involving the United States Forest Service, the Federal Energy Regulatory Commission and local stakeholders concerning the Forest Service’s requirement that the City to share part of its water right for environmental interests. The City’s water right is among the most coveted type in the State of California, a pre-1914 appropriative right dating back to 1906. The City seeks to preserve its water rights and supplies particularly during ongoing drought conditions and likely future water supply challenges exacerbated by climate change impacts.

Clean Technologies
With Stoel Rives’ internationally renowned expertise in the clean energy and technology industries combined with our regulatory knowledge, clean technology companies look to Stoel Rives Clean Technology Group for practical advice and a full range of appropriately targeted legal services.

We advise clients through all phases of a clean technology company's life cycle—from raw idea, protection of intellectual property, through angel and venture capital financing, and then on to project development, project finance, sale or public offering. We guide clean technology companies through the industry specific governmental policies, regulatory and compliance demands and opportunities that are changing day-to-day and can challenge management.

Investors, bankers, securities underwriters and other parties involved in the financing of clean technology businesses turn to Stoel Rives. Our strong connections to the financial community and our reputation for clean energy and technology expertise enable us to help our clients find productive relationships.

Some of our clients' representative technologies include:

  • Waste-to-energy
  • Energy-related software
  • Energy efficiency and demand response
  • Clean transportation (including electric vehicles)
  • Electric car plug-in stations
  • Smart grid
  • Chemical alteration of the properties of forestry products for more durable products
  • Recycled waste products to create energy efficient alternatives to traditional building materials
  • Wastewater treatment ionic exchange technology in the coalbed methane extraction application
  • Cellulose to ethanol strong acid hydrolysis technology
  • Floating wind turbine bases in deep water to create offshore wind energy
  • Algae for biofuels, animal feed and nutraceuticals
  • Algae for remediation and carbon sequestration
  • Acceleration of plant maturity to increase production of medicines and nutraceuticals
  • Plastics to biofuel technology
  • Green building technologies that reduce cement usage and carbon footprint in vertical and horizontal applications

Representative services include:

  • Corporate Finance
    • Company organization and structuring
    • Angel, venture capital and private equity financing
    • Initial and secondary public offerings
    • Mergers and acquisitions
  • Utilities & Regulation
    • Power marketing, including power purchase agreements
    • Regulation compliance and agency proceedings
    • Carbon offset trading
    • Legislation and rulemaking
  • Litigation & Dispute Resolution
    • Energy
    • Environmental
    • Construction and Design
  • Project Development
    • Real estate and land use
    • Energy facility siting and permitting
    • Construction, design, operations and maintenance
    • Fuel supply and transportation
    • Public land lease and use
    • Environmental assessment
    • Joint development agreements
    • Project purchase and sale
    • Hydropower licensing and permitting
  • Intellectual Property
    • Patents
    • Trademarks
    • Trade dress
    • Licensing agreements
    • Trade secrets
Team
Insights & Presentations
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