Climate Change and Clean Technology Blog : Climate Change Lawyer & Attorney : Sheppard Mullin Law Firm : Clean Technology, Greenhouse Gas

Climate change is an important and complex issue that is changing the way businesses operate while inspiring innovation in the areas of renewable energy and energy efficiency. As policies begin to legislate rapid greenhouse gas (GHG) reductions, the demand for technology that can get the job done is only going to increase – and with it, the potential for profit. Clean technology companies, energy producers, and product manufacturers need to understand laws in different substantive areas related to climate change and be able to anticipate and respond to new or pending legislation and regulations. 

Sheppard Mullin's climate change and clean technology team can assist clients in the following substantive areas:

Carbon Projects and Trading – As global carbon markets continue to grow, we can help clients enter and participate in these markets. We advise clients on participation in emissions trading in North America, Latin America, Europe and China and represent clients in creating, acquiring, and selling emission offset and emission reduction credits and acid rain allowances under the United States Clean Air Act, SCAQMD RECLAIM and other new source review and air credit programs. Companies that are not subject to regulatory emission reduction obligations are seeking to gain experience, skills, contacts and other benefits from reducing or offsetting their greenhouse gas emissions. Many carbon reduction projects create viable, diversified investment opportunities, particularly for energy and electric generating companies. 

Corporate – We have the experience to turn clean technology entrepreneurs’ business plans into viable emerging companies.   In addition to providing counsel to clients on organization, fund-raising, transactions and all facets of corporate operations, we can assist management and directors in developing corporate climate change policies and programs. For our public clients, we can also assist with responding to increased pressure for disclosure and assessment of the climate change impacts of corporate operations and their obligations under U.S. Securities and Exchange Commission rules and the Public Company Accounting Reform and Investor Protection Act of 2002 (Sarbanes-Oxley Act). We help companies develop new operating strategies that take into account future business lines, energy resources and efficiencies, environmental sustainability, and insurance needs.

Intellectual Property – As innovation in clean technologies grows, the protection of intellectual property becomes a critical component of business strategy in this area. We help our clients develop, plan, and protect their IP portfolios via patent and trademark filings, copyright maintenance, proposed guidelines for business practices, and the careful application of contractual provisions addressing invention assignment, non-disclosure issues, and non-competition.

Land Use – Developers and local, state, and federal government agencies involved in approving new development projects have become increasingly concerned with how to effectively respond to climate change issues. In particular, addressing climate change and its potential impacts in environmental review documents prepared pursuant to the CEQA and NEPA has become a pressing concern in the development community. We counsel clients on the range of issues related to development projects, including the necessary evaluation of potential air quality, sea level change, and natural resource impacts that must be assessed in environmental review documents.

Litigation – Increased public and regulatory attention to climate change issues is resulting in increased and multi-faceted litigation as well. We’re increasingly called upon to advise clients with respect to Clean Air Act challenges, NEPA and CEQA claims, common law nuisance litigation, federal-state preemption lawsuits and corporate liability and disclosure issues. We regularly represent potentially responsible parties in administrative and enforcement proceedings and litigation under a wide variety of environmental statutes and their implementing regulations. We represent clients in disputes involving governmental authority to regulate GHG emissions and their impacts, including land use development projects under the CEQA and NEPA, as well as in defending toxic tort, nuisance and environmental justice claims.

Policy Monitoring, Rulemaking and Advocacy – Early involvement and advocacy in GHG program rulemakings on behalf of our clients can make a critical difference in future cost-effective compliance. We monitor international, regional, national, state, and local climate change policy, legislative and regulatory developments, and advocate our clients' position on developing legislation and regulation. 

Regulatory Compliance – As new climate change initiatives emerge, we can help clients prepare for and efficiently manage compliance with the numerous laws and regulations mandating GHG emission reductions on the state and federal levels, including California's Global Warming Solutions Act and the Northeast and Mid-Atlantic Regional Greenhouse Gas Initiative, and Western Climate Initiative (WCI). We also have experience with environmental rulemaking, regulatory compliance and enforcement at all levels of government and in all air pollutant control and air credit trading programs, and provide counsel regarding the applicability of, and compliance with, these emerging mandatory climate change programs. Our representation includes regulatory practice before local, state and federal environmental air agencies such as the South Coast Air Quality Management District ("SCAQMD"), the Bay Area Air Quality Management District ("BAAQMD"), the California Air Resources Board ("ARB"), the United States Environmental Protection Agency ("EPA"), the state utility and energy commissions and the Federal Energy Regulatory Commission as counsel to industry consumer coalitions. We also provide assistance in contracting for energy and fuel sources and developing alternative energy source strategies. We are experienced in predecessor air credit trading programs such as the SCAQMD's RECLAIM and EPA's acid rain trading programs, which are being emulated in development of GHG environmental programs.

Renewable Energy Project Development – Renewable energy is emerging as a significant component of energy companies' portfolios and our lawyers have worked on many projects in this field, including structuring and financing power projects and advising on renewable energy certificate (REC) trading and ownership. New GHG emission regulations will undoubtedly result in the investment and development of alternative energy resources. Our team represents developers of biofuels, geothermal resources, hydroelectric facilities, and wind energy companies in the development of new projects to facilitate the delivery of renewable energy. The Firm's separate energy practice directly complements, and enhances, our renewable energy practice.  

Tax – The government’s emphasis on stimulating growth in energy efficiency and clean technology often takes the form of tax relief and incentives. We assist our clients with all aspects of tax planning, including advice on structuring equity investments, special allocations in partnership arrangements and implementing tax advantaged financing and acquisition techniques including tax credit and other tax advantaged transactions. In addition, we have been closely tracking the American Recovery and Reinvestment Act of 2009, which will extend and revise various renewable energy tax credit provisions of the Internal Revenue Code.