Manko, Gold & Katcher, LLP

Manko, Gold & Katcher, LLP

Energy

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The production, distribution, and use of energy necessarily implicates a full spectrum of environmental regulatory matters, including air quality, water quality, waste management, and land use issues. The attorneys and professionals at MGKF have provided assistance in all of these areas to numerous companies with energy-related operations, including:

  • coal- and waste-coal-fired electric generating units;
  • independent power producers, including cogeneration units;
  • petroleum refineries;
  • petroleum storage terminals and distribution facilities;
  • natural gas production and drilling in Marcellus Shale formations;
  • natural gas compressor stations, gathering systems and distribution operations;
  • landfill gas recovery and electricity generation facilities;
  • ethanol production and refining; and
  • alternative energy generation facilities.

We represent energy clients like these in addressing issues such as the following:

Air: Energy-related operations confront numerous air quality regulatory issues stemming from the production of electricity and the refining, distribution, and storage of petroleum products. Our attorneys are well versed in the federal and state air quality programs applicable to these energy-related activities, including relevant New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants, and federal and state mercury regulation and interstate emission trading programs such as the Clean Air Interstate Rule ('CAIR'). More recently, climate change issues have become a driver for much of the developing regulation in the energy sector. We closely track all legislative and regulatory developments in this constantly evolving area and regularly provide advice to our clients about current climate change obligations and potential compliance issues.

Water: Issues involving water quality have also become increasingly important for the energy sector. For instance, we have counseled clients on issues related to water intake structures, which are critical to energy-related operations and subject to numerous environmental regulatory requirements. In addition, regional river basin commissions have played a large role with respect to water intake and quality, and MGKF attorneys have represented many companies with issues before these organizations, including the Delaware River Basin Commission and the Susquehanna River Basin Commission. Energy-related operations also often result in significant water discharges, which necessarily implicate issues concerning Total Maximum Daily Loads ('TMDLs') for various watercourses; we have advised many companies with respect to the setting of and compliance with TMDLs.

Waste: Management of waste is also a concern—and an opportunity—for energy-related operations. For example, ash management and disposal is often an issue associated with the energy sector, and we have assisted companies in that area. At the same time, the beneficial re-use of waste as a feedstock has become increasingly important as the United States attempts to shift away from fossil fuel use. MGKF has advised many businesses with respect to 'waste-to-energy' projects ranging from the use of solid waste as an energy feedstock, to the cracking of waste tires to produce natural gas and oil, to landfill gas-to-energy projects.

Alternative Energy: Another dynamic and growing sector of the energy arena is the proliferation of alternative energy generation capacity. Alternative energy companies have turned to MGKF to provide sophisticated environmental counsel with respect to their projects. Renewable energy portfolio standards, such as Pennsylvania's Alternative Energy Portfolio Standard and New Jersey's Renewable Portfolio Standards and renewable fuel standards have led to a push for alternative energy production facilities to come on-line. Inherent in these projects are a wide variety of complex structuring and contractual issues, regulatory compliance requirements, and financial concerns. Additionally, while these projects are generally perceived as 'green,' they are industrial operations, and thus confront many of the same environmental regulatory concerns facing more traditional energy industries. For example, siting is often the critical issue for alternative energy projects—including 'low impact' projects such as solar photovoltaic arrays or wind turbines—as local communities may challenge the siting of these types of facilities. At the same time, projects such as ethanol refining, waste coal combustion, or coal-to-liquids production implicate environmental regulatory issues across all media. Additionally, many alternative energy and energy efficiency projects are eligible for significant federal and state financial assistance in the form of grants, loans, tax incentives or other types of financing, and significant portions of such projects are also frequently funded by more traditional debt and equity financings from various sources of capital, both public and private. MGKF has worked with clients in connection with financing their alternative energy and energy efficiency projects.

Sustainable Development and Green Building: As the sustainable development movement gathers momentum, government is looking for ways to stimulate the use of 'green building' techniques that promote energy efficiency and the use of distributed alternative energy generation in residential, commercial and industrial settings. Many state and local governments are coming up with a variety of tools that do this, including grants, low-interest loans, tax credits, priority permitting and in some instances modifying building codes to require the use of these techniques. In addition, these green building incentives are paired with, and enhanced by, financial assistance programs for brownfield remediation and redevelopment, an area where MGKF professionals have extensive experience. In certain instances, participation in these sustainability programs will require participants and/or third-parties to certify compliance with particular environmental or energy efficiency standards, which could implicate complex legal and regulatory issues. While many of these programs are only now being developed, some are in place and MGKF's Energy Practice Group is carefully monitoring them so that our clients may take fullest advantage of the opportunities they offer.

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