For more than 30 years, our team has helped shape, interpret and navigate the environmental and energy laws and regulations that impact the energy industry.  We are effective because we have built a diverse team of attorneys, policy experts, engineers and government advocates.  This unique mix of skills, expertise and reach allow us to advocate client interests on Capitol Hill, at federal agencies, in the boardroom, on site and in the field.  Kelley Drye’s team understands how the energy industry is regulated, how those regulations impact the industry and how to fight for more common-sense approaches.

Environmental and Natural Resources Legislative and Regulatory Counseling

Our team counsels energy industry clients on a broad range of federal legislative and regulatory issues pertaining to environmental regulations, resource extraction and federal land access.  We advocate on behalf of energy companies and trade associations in legislative and rulemaking efforts related to air, water and waste water regulation, endangered species listings and critical habitat designations, land-use decisions, and energy and fuel efficiency mandates.  Kelley Drye’s legal and policy team routinely advocates for energy industry clients at numerous federal agencies, including the U.S. Environmental Protection Agency (EPA), the Department of Energy (DOE), the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), the Bureau of Land Management (BLM), the U.S. Army Corps of Engineers and the Occupational Safety and Health Administration (OSHA).

We have an active regulatory practice dealing with environmental matters under all federal and state environmental and natural resources statutes, including rulemaking and litigation involving:

• Clean Air and Water Acts

• Resource Conservation and Recovery Act (RCRA)

• Superfund (CERCLA)

• Toxic Substances Control Act (TSCA)

• Safe Drinking Water Act

• Emergency Planning and Community Right-to-Know Act (EPCRA)

• Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

• National Environmental Policy Act (NEPA)

• Endangered Species Act (ESA)/Marine Mammal Protection Act (MMPA)

• Magnuson-Stevens Fishery Conservation and Management Act

• OSHA

• Solid Waste Disposal Act (SWDA) / Leaking Underground Storage Tank (LUST) Trust Fund

In addition, our team has worked extensively on major energy policy laws, including:

• Energy Policy and Conservation Act (EPCA)

• Energy Policy Act (EPAct)

• Energy Independence and Security Act (EISA)

• Energy provisions in the American Reinvestment and Recovery Act (ARRA)

Clean Air Act

Complex Clean Air Act rulemaking proceedings and litigation are a core element of Kelley Drye’s Energy practice.  We have lobbied successfully on provisions of the 1990 Clean Air Act amendments.  Since then, we have been engaged actively on behalf of our clients in almost every single rulemaking the EPA has undertaken to implement that law.  We shape legislation on Capitol Hill and negotiate and challenge emission regulations and enforcement decisions issued by the EPA, the California Air Resources Board (CARB) and numerous individual states.

We represent many manufacturing and energy clients and industry associations that are significantly impacted by the regulation of greenhouse gases (GHG) under the Clean Air Act as well as state laws.  Our attorneys represented the oil and gas industry in numerous challenges to the EPA’s use of the CAA to regulate GHG emissions.  Kelley Drye also led a multiindustry effort to challenge the Social Cost of Carbon (SCC), which has been used as a justification for numerous rulemaking efforts impacting the energy industry. 

We also represent clients impacted by use of statutes such as the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Marine Mammal Protection Act (MMPA) as a type of back-door regulation of GHG emissions.  Our attorneys lead the oil and gas industry’s challenge to EPA’s Mandatory Reporting Program for GHG Emissions and counsel other industries on GHG reporting requirements and SEC and corporate sustainability reporting.  Alongside our government relations advisors, we closely track climate change legislation, citizen suits and developments abroad that can impact domestic industries and GHG emitters.  During consideration of climate change legislation during the 111th Congress, we worked extensively on behalf of energy-intensive, trade-exposed (EITE) industries to help alleviate the economic impacts of proposed regulations.

Clean Water Act–Kelley Drye attorneys routinely work with clients on regulatory and compliance issues arising under the Clean Water Act.  We have led the energy industry’s response to EPA efforts to restrict waste water management options, helped resist an effect to use water-quality criteria to regulate carbon emissions, and we routinely provide state-level advocacy and regulatory tracking on numerous water use, containment and disposal requirements.

Endangered Species Act–Kelley Drye acts as an advocate on behalf of the energy industry on numerous ESA matters.  Our team has directed and led highly sophisticated oil and gas industry efforts to ensure that the listing decisions and critical habitat designations that impact the energy industry comply with the ESA and are based on sound science.

By pulling together Kelley Drye’s ESA and energy policy advisors, our in-house economists, and respected biologists and scientists with whom we have longstanding relationships, Kelley Drye has been able to provide the energy industry with compelling advocacy that marries a deep understanding of the ESA with credible scientific analysis.  Kelley Drye has utilized this unique intersection of capabilities in dozens of ESA matters important to the energy industry such as:

• the Lesser Prairie Chicken listing effort/litigation

• the Dunes Sagebrush Lizard listing effort/litigation

• the North American Wolverine Listing effort/litigation

• petitions to list Bryde’s whales and sperm whales in the Gulf of Mexico as distinct population segments

• numerous NMFS listing actions related to loggerhead turtles, green turtles, electric rays, dusky sharks and 66 species of coral

• numerous FWS listing efforts related to dozens of flora and fauna on or near area import to multiple energy industries

• numerous FWS and NMFS guidance and rulemaking efforts governing how the listing services list species, consult on impacts, designate critical habitat, evaluate voluntary and state conservation efforts, and require mitigation.

Oil and Gas

The United States is in the midst of a 21st century gold rush—a natural resources boom, driven in large part by the discovery of vast amounts of oil and gas in unconventional shale plays.  Recovery of resources in these often deep geologic formations has been made possible by advances in horizontal drilling and hydraulic fracturing (fracking).  Kelley Drye’s attorneys and professionals have helped energy clients identify, understand and navigate these pressures through our deep understanding of, and experience with, the statutes and regulations under which the natural gas and hydraulic fracturing industry operates.  We also work directly with oil and gas companies and service companies to provide compliance assistance, litigation support, project finance assistance, and all the comprehensive counsel necessary to run a business in a highly regulated environment.

Clean Technology and Smart Grid

Technologies that reduce emissions, reduce energy consumption and secure data in a modernized grid are at the forefront of energy research and investment by governments and, increasingly, a subject of legislation and policy.  From early-stage transformational research at the DOE’s ARPA-E to DOD implementations of new clean technologies, Kelley Drye is assisting clients to engage in standards development and other projects being driven by federal requirements for energy efficiency and cybersecurity.  Additionally, we are engaged with state utility commissions, organizations like the National Association of Regulated Utilities, and trade associations that are guiding the development of policy for smart meters and other data-driven technology upgrades to electric grids.

Alternative and Renewable Fuels

Kelley Drye attorneys have extensive experience handling the environmental challenges and regulatory oversight issues faced by alternative and renewable fuels producers and related companies.  Our decades of experience working with automobile, small engine and power equipment manufacturers has uniquely positioned us to advise companies and coalitions on the emerging issues related to the production and operation of alternative fuels.  Our projects have included biodiesel, synthetic fuels and ethanol, and we represent a number of clients at the forefront of the carbon mitigation and energy-efficiency industry.  In recent years, we have developed particular experience representing renewable energy clients, such as the advanced biofuels (Biomass-to-Liquids and Gas-to-Liquids) industries.  Through our work with establishing and representing the Low Carbon Synthetic Fuels Association, we are very familiar with the DOE Loan Guarantee Program and grant programs that could be a source of funding to the renewable energy or “cleantech” sector.  Our attorneys are nationally recognized for their knowledge of the complex regulatory regime governing transportation fuels and heating oil under the Clean Air Act, including the Renewable Fuel Standard (RFS1 and RFS2) and the Ultra-Low Sulfur Diesel Program (ULSD).  We represent our clients’ interests before the DOE, the EPA and Congress, as well as before the CARB.

Contaminated Property Transactions and Brownfields Redevelopment

Kelley Drye helps its clients manage and control potential environmental liabilities at the federal, state, local and international levels associated with business acquisitions and divestitures.  Since the advent of Superfund, companies have approached property transactions with a wary eye.  Joint, several and retroactive liabilities typical of the Superfund program have left many unsuspecting companies holding significant liability for contamination caused by others.  Our team of environmental professionals, lawyers and engineers oversees cost-effective site investigations, manages data and assesses potential liability.  Where appropriate, we counsel clients, negotiate indemnification and restricted-use agreements, oversee risk assessments and remediation processes, and secure insurance protection arrangements.