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Sustainability & Renewable Energy
The sustainability and renewable energy landscape is rapidly changing and expanding. Members of Whyte Hirschboeck Dudek S.C.’s Sustainability & Renewable Energy Team have a long history of serving clients in these areas. We work in strategically created interdisciplinary teams tailored to each client’s specific needs. Clients include developers, green builders, existing energy and public utility companies, emerging renewable energy companies, investors, and inventors. Team members have counseled clients on matters of energy and public utilities, environmental, corporate, finance, intellectual property, green building, tax and government affairs.
 
Industry Involvement
 
The members of this team spearhead WHD’s active involvement in and support of two world-class economic development organizations that are headquartered in Milwaukee – the Mid-West Energy Research Consortium (M-WERC) and The Water Council.

WHD sits on the board of the M-WERC. The organization’s vision is to make the Midwest the leader in the energy, power and control (EPC) sector as it drives the region and country to energy independence based on innovative solutions tied to generation, transmission, distribution, storage, automation, power conversion and energy efficiency and conservation. In Wisconsin alone, EPC is estimated to be a $38 billion industry. M-WERC has research facilities associated with universities in Madison and Milwaukee, and its new Energy Innovation Center (EIC) on 27th Street and Capitol Drive in Milwaukee features laboratories and a small-business energy, power and control incubator as it shepherds energy startups and research partnerships between business and academia. WHD occupies an office on the EIC’s seventh floor, where professional service providers and other businesses will consult with the startups to help the EIC transform energy innovations into businesses and jobs. WHD is the sole law firm to have an office in the building and shows its commitment to this dynamic growth sector of the economy.

WHD is a proud member of The Water Council. The Water Council was created by leaders in both business and education and has led the charge to have the Milwaukee region become recognized as a world hub for water research, education and economic development by convening the region’s existing water companies and research clusters, developing education programs to train talent, and building partnerships that cut across all sectors and geographic boundaries. The Milwaukee region is home to more than 150 water technology companies and the first School of Freshwater Sciences in the nation at the University of Wisconsin-Milwaukee. A number of WHD’s clients are members of The Water Council and some are located in the new Global Water Center, a water research & business accelerator center in Milwaukee’s Walker’s Point neighborhood.

Representative Engagements

Energy and Public Utilities: We help clients navigate the regulatory, political and judicial processes to meet the client’s project or transaction needs and deadlines. Our experience includes the following:


Wind and Solar Energy

  • Prepared all transactional documents for the purchase of a wind farm development.
  • Represented an offshore wind developer in a PSC investigatory docket relating to the viability of offshore wind development.
  • Drafted and negotiated power purchase agreement, retail energy sale agreements, and limited liability company agreement related to development of commercial wind energy facility.
  • Drafted and negotiated limited liability company member interest purchase agreement for the acquisition of a commercial wind energy facility.  
Biomass and Biogas
  • Assisted in the development of a facility that could co-burn renewable resource fuels to generate electricity, including the preparation of requests for information and proposals, review of best management practices for the sourcing of biomass material from forest and farms, overall development of a sustainable biomass supply chain and renewable resource fuel market, and the preparation of applications for and negotiation of numerous environmental permits and approvals including air, waterway and wetlands, endangered species, and cultural resources.
  • Negotiated supply, construction, operations and maintenance, and lease and easement agreements for two biogas generation facilities.
Hydroelectric Dams
  • Negotiated power purchase agreement and asset purchase agreement on behalf of client related to the construction of a new hydroelectric generating facility.
  • Negotiated acquisition agreements for generation company in three separate transactions involving the acquisition of hydroelectric dams.
  • Represented client in Federal Energy Regulatory Commission and Wisconsin Department of Natural Resources (WDNR) licensing and permitting processes for new hydroelectric generating facility.
Environmental: We advise clients on complex and technical legal matters that involve a broad range of environmental, cultural, natural resource and land use issues. Our experience includes the following:
  • Coordinated the applications for and negotiation of permits and approvals involving numerous state and federal agencies, including WDNR, U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, Federal Emergency Management Agency, and the U.S. Fish and Wildlife Service, for utility and energy projects, including wind farms.
  • Initiated and defended appeals of state and federal permits and approvals before administrative bodies and courts.
  • Evaluated the availability of renewable energy, carbon, and other “green” credits for projects, including anaerobic digesters and forestry projects, and drafted contract language allocating credits between parties.
  • Counseled clients on the application process for WDNR’s Green Tier Program and assisted with reporting requirements. 
Corporate: We provide advice on contracts, corporate merger, acquisition, divestiture, reorganization transactions, and general corporate counseling. Our experience includes the following:
  • Negotiated contracts that include the handling, control and transmission of large amounts of electrical power.
  • Assisted manufacturer clients by identifying points of entry for their products and services within LEED, Green Globes and NAHB Green Building and by analyzing applicable federal, state and local mandates, tax incentives and related regulation.
  • Assisted ANSI accredited standards developer client with development of anti-trust policies, intellectual property strategies and related contractual issues related to development of sustainable products standards.
  • Assisted a large provider of hydroelectric power acquire its plants and with day-to-day operational, regulatory, acquisition and general legal matters.
  • Represented wind energy developer in sale of wind energy facility, including negotiating acquisition, limited liability company, and services agreements, and providing due diligence review.
Finance: We assist clients in structuring deals, identifying funding sources, overcoming hurdles and addressing workout situations. Our experience includes the following:
  • Represented equipment lender in negotiating interdictor arrangements with bond trustee and other credit participants, revolving loan and term loan financing for construction and equipping of an ethanol facility.
  • Negotiated the lease of property for wind towers and transactions over disputes in the manufacture and installation of steel towers for wind farms.
  • Served as bond counsel for financing exempt facility portion of ethanol facility with tax-exempt bonds.
  • Served as bond counsel for financing facility for “methane to natural gas” project with tax-exempt bonds.
  • Represented limited liability company in negotiation of limited partnership agreement and limited liability company agreement for creation of project financing investment fund.
  • Advised two large corporations on potential joint venture entity options, project financing, and structure to maximize federal and state financial incentives for project.
  • Provided analysis, advice, and assistance to business clients in obtaining grants, loan guarantees, bond financing, and other financial incentives available through federal and state programs. 
Intellectual Property: We provide intellectual property counsel for clients with sustainable technologies. We perform the following:
  • Procure U.S. and foreign patents in the following clean technologies: algae production, biofuel, anaerobic digestion, water treatment, water testing, desalination, and solar.
  • Strategic counsel for implementation and management of global intellectual property portfolio for green technology companies.
Green Building: Green building certification is profoundly altering the design, construction and real estate development marketplace. We help clients develop strategies for identifying opportunities and minimizing risks associated with green building certification, acquisition, leasing, construction, and related public disclosures. Our experience includes the following:
  • Developed construction contract provisions on the behalf of design-builders and owners, identifying and allocating LEED-related certification obligations, tax incentives, insurance and professional liability issues.
  • Created sustainable neighborhood covenants reflecting LEED for Homes and NAHB requirements.
  • Drafted white papers for construction and manufacturing clients regarding opportunities/risks associated with potential greenwashing and opportunities/risks under LEED.

Tax: Our tax attorneys have successfully represented clients in a wide variety of routine and complex sustainable and renewable energy-related tax matters involving federal, state, local tax planning and litigation. Our experience includes the following:

  • Represented distributor of power generation equipment on the formation of limited partnership to develop a landfill gas electrical generation facility and on the allocation of federal landfill gas credits.
  • Represented companies in connection with the merger, acquisition, purchases, and/or proper classification of assets involving wind turbine, waste reduction, waste treatment, anaerobic digester, paper waste conversion, private utility, recycling, nuclear, ethanol and/or water distribution facilities.
  • Represented and formed tax exempt organizations that were organized and operated exclusively to promote sustainable and renewable energy.
  • Represented numerous clients in federal, state and local tax planning and disputes involving income, franchise, sales/use, property and real estate transfer fee taxes. 

Government Affairs: We provide advice on government issues on all levels of government. Our experience includes the following:

  • Assisted clients in structuring and issuing tax-exempt financing and in obtaining a U.S. Department of Energy grant.
  • Assisted clients in securing state and local development incentives.
  • Represented client in obtaining two substantial bond allocations from the Wisconsin Economic Development Corporation for energy efficiency improvements.
  • Represented large energy efficiency company in passing legislation expanding authority of municipalities to create energy efficiency programs.
  • Obtained municipal approvals related to the construction of several wind, biogas, and hydroelectric facilities.