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New and proposed rules governing carbon emissions are complicating the task of obtaining key permits and other government approvals on which capital investment decisions are based.  Especially in industries like energy, chemicals, refining, cement and major manufacturing, uncertainties and delays in permitting threaten the successful deployment of capital toward modifications, expansions and new construction.

The complexities of global warming have exerted a confounding influence on permitting agencies.  They have also become a powerful weapon in the hands of litigants bent on stopping or impeding the progress of new development, plant upgrades and facility expansions.  Strategies for permitting and compliance must anticipate these collateral effects of climate change, which tend to feed off the unsettled political and policy debate on global warming.  Companies must protect their capital investments through strategic approaches to permitting, post-permit litigation and ongoing regulatory compliance.

Our reputation in the areas of permitting and compliance strategy stems from many years working with or within the White House and the key federal agencies charged with protecting natural resources and the human environment.  Our attorneys have the benefit of first-hand perspectives gained working with EPA, the Federal Energy Regulatory Commission (FERC), Commodity Futures Trading Commission (CFTC), Department of Energy (DOE), Department of Interior (DOI), Fish and Wildlife Service (FWS), National Oceanic and Atmospheric Administration (NOAA), Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), among other agencies.  Prior to joining Bracewell, a number of our climate change team members served as senior legal, policy and enforcement officials at many of these agencies. As a result, we know the practical issues, the policy considerations and the political calculus within the federal executive branch that influences its approach to greenhouse gas (GHG) regulations.

We handle the siting, permitting, regulatory issues and litigation for refineries, pipelines, electric power plants, and other energy and infrastructure projects.  This work requires complex legal and policy interaction with federal and state agencies and, in many cases, the development and implementation of strategic communications and media relations plans. These projects include the design and implementation of complex Clean Air Act (CAA) permitting strategies; systems for corporate climate change-related governance, management and auditing; and counseling corporations on strategic climate change and energy issues.

Selected Experience

Representation of a midstream energy company in obtaining federal Prevention of Significant Deterioration permits for greenhouse gas emissions from proposed gas processing and fractionating facilities under the Clean Air Act and U.S. EPA’s Tailoring Rule.

Handled environmental permitting of an integrated gasification combined cycle (IGCC) plant intended to capture and sequester CO2 and involved complex New Source Review regulatory issues.

Advised an independent power producer on climate change and air quality issues related to the construction of three new coal-fired power plants in Texas, Arkansas and Georgia. The firm counseled the client on how it would be affected under existing and proposed climate change legislation and in climate change and permitting issues relating to air quality standards under the CAA.

Provided climate change-related representation and advice in the permitting strategy for obtaining a New Source Review permit under the CAA in the U.S. EPA Region 9. Our work ensures defensibility of the permitting record relating to potential GHG requirements and representation before the EPA's Environmental Appeals Board. 

Represent a major oil company on corporate-wide CAA and greenhouse gas permitting issues at facilities throughout the U.S., including conducting peer review of CAA permit applications needed to begin construction of major refinery expansion projects.

Counseled the developer of a low-carbon, cutting-edge biomass power plant in Texas in a permitting challenge, including negotiations with national environmental groups to resolve climate change-related permitting and adverse air quality issues.

Represent a transmission line developer in administrative appeals and advocacy associated with NEPA at the Interior Board of Land Appeals and the Interior Board of Indian Affairs regarding Bureau of Indian Affairs' and Bureau of Land Management's Records of Decision to grant rights-of-way for the proposed line. The appeal was brought by national environmental groups such as Sierra Club and Center for Biological Diversity, and includes challenges related to climate change, cumulative impacts analyses, endangered species and NEPA staleness.

Represent a global power generation company in the acquisition and permitting of an early-stage natural gas-fired power plant in Texas.

Represent one of the largest generators of electricity in the United States with legal advice and advocacy before EPA to secure regulatory and policy reforms of major CAA regulatory actions, including reforms to the New Source Review program, addressing the recently vacated Clean Air Interstate Rule, new regulations and the policy direction of EPA on regulation of greenhouse gas emissions.

Counseling the developer of a coal-fired power plant in its response to a state court decision invalidating a Clean Air Act permit on various grounds, including the court's finding that CO2 is a regulated pollutant under the CAA.

Represent a large natural gas producer on strategic, policy and regulatory matters related to upstream drilling and production, most notably on climate change and issues associated with hydraulic fracturing and wastewater handling.

In a high-profile case involving unprecedented environmental and climate change challenges, Bracewell assisted an independent power producer in its effort to build public support, secure state legislative action and obtain permits for a large coal-fired plant on Navajo Nation lands in the Four Corners area of New Mexico. This project included counseling and advocacy on how climate change concerns would be dealt with under pending GHG regulation and legislation, National Environmental Policy Act (NEPA) analysis, public affairs management, interaction with the Bureau of Indian Affairs, Fish and Wildlife Service, National Oceanic and Atmospheric Administration, Council on Environmental Quality, and the Bureau of Land Management. The firm's work required complex legal and policy interaction with federal and state agencies, including with a Native American tribe, to solve unique siting issues on Indian lands. Bracewell also managed public and media relations on behalf of the client.

Advise a foreign investor in midstream assets regarding climate change legislation, impacts on the importation of tar sands crude, and issues arising under the World Trade Organization.

Advised a multinational energy services company on air emissions regulatory developments relating to the midstream energy industry, including existing and proposed NSPS and NESHAP standards under the Clean Air Act.