Bracewell & Giuliani has decades of experience that focuses on the development, finance, and operation of electric power generation plants in the United States and around the world. We have maintained our pace with the cutting edge issues facing utilities, independent power producers and vendors of electric generation equipment and recently have played a lead role in the "nuclear renaissance" underway in the U.S. and around the world.
Nuclear Power Plant Construction Contracts
Bracewell, as lead outside counsel, has represented Westinghouse Electric Company LLC in the negotiation and execution of the first engineering, procurement and construction (EPC) contracts for new nuclear power plants in the United States in over 30 years. In 2008, three EPC contracts were signed by Westinghouse and its consortium partner The Shaw Group with major utility companies Georgia Power Company (together with co-owners Oglethorpe Power Corp., Municipal Electric Authority of Georgia and City of Dalton); South Carolina Electric & Gas Company (with co-owner South Carolina Public Service Authority) and Progress Energy Florida, Inc. Several additional EPC contracts for new build nuclear generation are in the process of being negotiated or are the subject of bids in the U.S. and Canada on which Bracewell is serving as lead outside counsel for Westinghouse.
These complex, multi-billion dollar, multi-year EPC contracts have required months of negotiation and the application of our expertise and creativity to such matters as shared price risk and price indexing for long term contracts, warranty coverages, owner inspection rights, completion and performance obligations, liquidated damages, force majeure risk, changes in law, change orders, intellectual property rights, payment terms, lien rights, termination rights and remedies, liability caps, indemnity provisions and dispute resolution. Our practitioners' many years of experience in EPC contracts enable us to bring creative solutions to difficult issues between owner and contractor.
Power Sales Agreements for Nuclear Power Plants
The output from nuclear power plants that is not used for native utility load is sold under various types of power supply contracts ranging from 20-to 40 year arrangements to short term contracts. Bracewell's power projects team has a great deal of experience in the nuances of these contracts. We have represented the owners of plants as well as off-takers for portions of plant output in the negotiation and fulfillment of these contracts. Our experience includes providing advice on pricing mechanisms for plants that are still in development and issues such as dispatch rights and scheduling among multiple offtakers, as well as the topics that are key to any power sales agreement such as performance obligations, liquidated damages, force majeure, termination rights and remedies, payment security and rights and obligations in the face of upgrades and changes in law. In addition, we have addressed the various products that can be offered from a nuclear plant, including power, installed capacity and others (depending on the region). Finally, we have covered the implications of nuclear units and bidding practices and other factors in organized RTO markets.
Joint Ownership Arrangements
Major base load generation projects such as nuclear power plants frequently involve joint ownership through "tenants in common" relationships among two or more utilities. We have advised clients on a number of these arrangements, including with respect to development agreements and the resulting participation and ancillary agreements such as leases, shared services, fuels management, construction management, operations and maintenance and administrative services agreements.
Acquisitions and Divestitures
Sales of power generation facilities and companies have been a significant feature of Bracewell's power projects practice over the past decade. We have represented clients AEP, Alliant Energy, Bear Stearns, Calpine, Duke Energy, Dynegy, Entergy, PNM Resources, Powerex, Reliant Energy and several private equity firms in bidding for and buying and selling power plants and related ownership interests. Our attorneys were also involved in the acquisition of the Nine Mile Point facility by Constellation and several due diligence and acquisition projects for other facilities.
Uranium Trading and Storage
Bracewell attorneys have experience in transactions regarding the trading of unenriched uranium. These transactions have been both physical and financial in nature. Our attorneys have also negotiated storage contracts in the United States, Canada and France for the storage of such uranium.
Regulatory Representation
Bracewell's energy regulatory practice advises on all aspects of power generation and transmission regulation, licensing and ratemaking. Our attorneys have represented the owners and purchasers of nuclear plants in obtaining FERC and state regulatory authorizations to acquire the facilities. In addition, our attorneys have represented utility plant owners in a variety of regulatory and prudence matters before state regulatory commissions.
Intellectual Property
The firm's intellectual property lawyers have been instrumental in providing advice for the licensing issues that are attendant to EPC contracting for new nuclear power plants, as well as advising on intellectual property standards and intellectual property asset management. Our attorneys provide comprehensive legal counsel in all aspects of intellectual property law, including patent prosecution and enforcement, licensing, technology transfers and joint venture agreements.
Government Programs
Bracewell & Giuliani's government relations and strategies group not only provides a voice for clients on Capitol Hill but also aids clients in negotiating their way through a myriad of federal programs affecting the energy industry. This includes the Department of Energy's loan guarantee program established under Title XVII of the Energy Policy Act of 2005. Bracewell includes among its numbers a former Senior Counsel in the Office of the General Counsel at DOE who had significant involvement in the preparation of the regulations for the Title XVII loan guarantee program and other DOE programs. We are currently advising clients who are in the process of seeking loans and loan guarantees under existing DOE programs and from the newly available funding contained in the economic stimulus bill.
Strategic Communications
Owners of nuclear plants as well as those interested in servicing the nuclear power industry need to counter the misconceptions and concerns that linger in the public mind about nuclear energy and to foster a welcoming attitude for new nuclear power plants. Bracewell has an in-house strategic communications team that includes attorneys and media specialists focused on improving the public position of clients through media relations, crisis communications, issues advocacy, litigation support and coalition building.