Energy & Environmental Law | Fennemore Craig

Going Natural

Our environmental attorneys focus on matters involving electric, renewable energy, natural gas, sewer and water utilities and telecom industries.

We have a long history in natural resources, energy and environmental law. Our environmental attorneys work primarily in the natural resources and environmental area and they actively serve on boards, committees and organizations dedicated to environmental, natural resources, and water rule-making, policy development, and legislation. Related environmental and natural resources law experience in other practice areas includes tax, corporate law, commercial and white-collar criminal litigation, real estate, government relations, workers’ compensation, and personal injury and business torts litigation.

Good Counsel

Who We Represent

We represent clients in diverse and complex matters before the Arizona Corporation Commission and also represent large industrial users of electricity, as well as power plant project developers/owners in both traditional and renewable forms of generation. We provide environmental legal services to two of the state’s largest investor-owned water and wastewater providers, in addition to smaller private water and wastewater utilities in northern and central Arizona. We also assist a variety of clients with state and federal pipeline and railroad safety matters in Arizona and Nevada. Our utilities and regulatory practice also extends to other state agencies, state boards and commissions, as well as related litigation in state and federal courts.

Specific work on behalf of clients includes representation in regulatory proceedings, rule-making, arbitrations, rate-setting, certificates of convenience and necessity, power plant and line siting cases, financing proceedings, appeals to courts from administrative decisions and prosecution of claims to water rights.

We offer a full range of environmental legal services to clients in:

Administrative

Our environmental attorneys routinely prepare appeals and make presentations on behalf of clients before state and federal administrative bodies and tribunals charged with acting upon permit requests, water rights issues, contamination issues, underground storage tank disputes, and many other environmental, water and natural resource matters.

Climate Change

Climate change has assumed a high-profile role in policy making at all levels of government, both domestically and internationally. Whether one agrees on the science and conclusions relating to climate change, its related policy and rule-making are very real issues for business. Laws and government programs to address climate change have the potential to significantly affect land use, energy, transportation, agriculture sectors, and industrial, residential and commercial development. Government at all levels is enacting climate change-related laws, and businesses and utilities will incur costs as a result. The dominant element driving climate change regulation and rule-making is greenhouse gas emissions and the desire to reduce greenhouse gases. Greenhouse gases include carbon dioxide, produced primarily from combustion; methane, produced from landfills, agriculture and coal mines; nitrous oxide, produced from combustion and fertilizers; hydrofluorocarbons and perfluorocarbons, produced by refrigeration and semiconductor industries; and sulfur hexafluoride produced from electricity generation and transfer equipment. Our climate change attorneys are well-versed in domestic and international developments on emerging legal and corporate policies on climate change, including the regulation and reduction of greenhouse gas emissions affecting businesses.

Endangered Species

Our environmental lawyers have substantial experience with the federal Endangered Species Act and related laws and regulatory requirements. We represent clients in connection with administrative and court proceedings concerning the listing of species, the designation of critical habitat, Section 7 consultation and prohibitions on the "taking" of species. We have successfully challenged species’ listings, critical habitat designations and biological opinions, and defend clients in lawsuits based on alleged violations of the ESA, as well as NEPA, the Clean Water Act, and other statutes and regulatory programs affecting land and resource use.

Environment

We provide due diligence advice and counseling, and real property and environmental impact assessments for business. We offer environmental compliance and permit counseling for industry and business. Our environmental attorneys routinely work in the areas of:

  • Air quality
  • Endangered species
  • Federal and state Superfund laws
  • Groundwater quality protection
  • Hazardous and solid waste management
  • Historic preservation and archeology
  • Native plant protection
  • Storm water and wastewater management
  • Underground storage tanks (UST)
  • Wetlands regulation
  • Pesticide regulation

We assist clients to obtain and comply with air permits for major and minor sources, surface (NPDES) and groundwater quality (aquifer protection) permits (APP), and Section 404 permits. We also provide advice regarding management of storm water, wastewater, and solid and hazardous waste; the development and implementation of pollution prevention plans for industry; environmental audits and site assessments; OSHA and EPCRA compliance, coordination of remedial actions and cost recovery efforts; and a multitude of other environmental compliance issues.

Legislation

Our environmental attorneys represent clients before the Arizona Legislature on environmental and natural resource matters, including water and air quality, solid and hazardous waste, water rights, tax policy and underground storage tank issues. We have helped draft and lobby most of Arizona's major environmental laws, including the Environmental Quality Act of 1986, the state's Air Quality Act, Underground Storage Tank Act, Water Quality Assurance Revolving Fund (state Superfund), the Groundwater Code and the Central Arizona Groundwater Replenishment Act.

Environmental and Natural Resources Litigation

Our civil and criminal litigation experience includes all aspects of environmental and natural resources claims. Our environmental attorneys represent clients in connection with state and federal and Superfund matters; pursuing and defending private cost recovery actions under state and federal statutes and common law; defending investigations and civil enforcement and criminal prosecutions by state, local and federal prosecuting agencies under the Clean Water Act, Resource Conservation and Recovery Act and all other federal and state statutes; and water rights claims.

Our natural resources lawyers provide a significant amount of environmental counseling and representation to the manufacturing, mining, forestry, high technology, petroleum, banking and other industries. We have represented clients before the air pollution control hearing boards, the Water Quality Control Council, administrative law judges at the Department of Environmental Quality, and in federal and state courts.

Our recent environmental law activity includes environmental and toxic torts; environmental policy suits; regulatory challenges; cost recovery actions; property devaluation and natural resource torts; complex water cases; general adjudication of water rights; mining title disputes; flood cases; and environmental compliance actions. We recently obtained a court order requiring the Department of Environmental Quality to de-list a client from the Section 304(1) listing under the Clean Water Act.

We have been involved with all of Arizona's groundwater protection initiatives, which culminated in 1986 with the passage of the Arizona Environmental Quality Act. Our water rights attorneys have served as special counsel to the state in Arizona v. California and other water law cases of statewide interest. Our environmental lawyers serve on legislative drafting committees, advisory committees to agencies, and on various ad hoc committees which affect and direct the legislative and regulatory process in Arizona.

Mining Law

We have more than 130 years of experience representing clients in minerals development. Our mining law attorneys advise clients on exploration agreements, including joint ventures and farm in/out agreements; purchase and sale agreements of mining properties; mine development; operating and production agreements; marketing and tolling agreements of base and precious metals; as well as derivative transactions, including exchange-traded and off-exchange transactions as well as finance arrangements.

In addition, our mine safety and health legal services involve client counseling and supervisor training for mine operators and independent contractors, as well as litigation regarding enforcement issues, whistleblower claims, special investigations and accident investigations under the Federal Mine Safety and Health Act of 1977

Our work for clients encompasses projects related to mining laws and regulations throughout the United States, Mexico, Canada, South America, the Pacific Rim, the Republic of South Africa, and elsewhere around the world. Our mining lawyers work closely as a team, providing finance law, tax, business entity advice, employment, creditors' rights law, environmental, endangered species act work, water rights and public lands experience to a mining project. We are experienced in both leaseable and locatable minerals on federal public lands, and our mining attorneys have significant experience in mineral title examination.

Public Lands

We provide a wide range of representation concerning natural resources issues on public and tribal lands. This includes trials and appeals in federal and state courts, proceedings before various administrative agencies, permitting, and commercial transactions. 

Our environmental law attorneys represent natural resources companies, mining companies, ranchers, developers and other public land users in federal court litigation on a full range of natural resources issues. Our experience includes regularly defending challenges to projects and activities on federal lands involving the National Environmental Policy Act, the National Forest Management Act and the Federal Land Management and Policy Act, as well as other federal and state statutes affecting the use and development of public lands. In addition, we represent clients in administrative appeals and federal court proceedings relating to the issuance of permits and other regulatory matters affecting the development and use of natural resources. We are also experienced in negotiating contracts and water rights settlements with American Indian Tribes and government agencies.

In addition to litigation, we advise and assist clients on various permitting and transactional matters, rights-of way, grazing permits and other permits relating to the use and occupancy of public lands. The firm also assists clients in connection with rule-making proceedings and administrative appeals and contested cases relating to permits under federal and state land use statutes.

Renewable Energy and Clean Tech

We have substantial experience with all types of energy projects dating back to the late 1800s. Today’s renewable energy focus draws upon this experience and brings together business and finance, tax, intellectual property law, regulatory law, natural resources and environmental law, and real estate law, land use, and construction attorneys for our renewable energy clients to provide efficient and complete legal services. In addition, our renewable energy law attorneys provide pricing and a legal services framework for ventures of all sizes.

We provide a range of renewable energy legal services to developers, investors, utilities and entrepreneurs for renewable energy projects, including assisting with:

  • Business transactions associated with forming a venture, or handling the disposition or acquisition of renewable energy development assets and projects
  • Power plant and transmission live siting
  • Co-generation agreements
  • Compliance with state and federal regulatory requirements
  • Financing, including public offerings, private placements, syndications and venture capital financings
  • Land use, including leasing, zoning and entitlements
  • Licensing and permitting
  • Litigation in state and federal courts
  • Patent, trademark and other intellectual property law protection strategies
  • Power purchase agreements
  • Solar leases
  • Surface and groundwater permitting
  • Tax credits and other incentives
  • Government relations and legislative initiatives
  • Arizona Renewable Energy Standards

Rule-Making and Policy Development

We regularly participate in and submit comments on behalf of clients in the public process on the formulation of national rules proposed by the Environmental Protection Agency, Bureau of Land Management, Fish and Wildlife Service, Forest Service and other federal agencies. Our environmental lawyers interact frequently with state agencies on the promulgation of rules as well as the development and implementation of policy.

Toxic Torts

Toxic tort litigation involves claims for personal injury and property damage arising out of exposure to a toxic substance. Our toxic tort lawyers are experienced in representing clients in toxic tort matters, including claims for:

  • Alleged pulmonary damage from air pollutants, methane gas migration
  • Chemical damage to crops
  • Groundwater contamination involving polychlorinated biphenyls, petrochemicals, trichloroethylene and other industrial solvents
  • Property devaluation
  • Personal injuries and medical monitoring resulting from exposure to various substances, including TCE and other volatile organic compounds
  • Personal injury from exposure to pesticides and asbestos
  • Toxic shock syndrome and cancerphobia
  • Toxic mold

We defend business clients in the context of workers' compensation claims for injury or disease from toxic substances, including arsenic, aluminum, asbestos, solvents, silica dust, acids and other chemicals. Additionally, we have experience defending drug manufacturers in cases involving adverse reactions allegedly attributable to prescription drugs. As a result of our toxic tort experience, we have experience in medical, scientific and legal causation, and the identification, retention and presentation of qualified medical, toxicological and other appropriate expert witnesses.

Utility Representations

We represent several utilities in the telecommunications, water, sewer, and natural gas industries. Our environmental legal services include appearing before the state commissions in ratemaking, certification, rule-making, and financing proceedings. Our environmental lawyers also represent utilities in federal and state court actions challenging regulatory decisions.

The following are examples of our energy lawyers’ utility representations:

  • Continued development of the Arizona Corporation Commission's rules and regulations for electric deregulation, including statutory legislation for the introduction of competitive generation service in Salt River Project’s service territory.
  • Project development for utility scale solar projects in Arizona, including permitting and land acquisition, as well as negotiation of related interconnection and power purchase agreements.
  • Project development of biogas facilities, including permitting and negotiation of interconnection and power purchase agreements.
  • Representation of mining and other commercial interests in rate case and related matters before the Arizona Corporation Commission.
  • Representation of various entities in power plant and transmission line siting matters before the Arizona Power Plant and Line Siting Committee.
  • Representation of pipeline owners concerning adoption and implementation of state safety rules.
  • Represent various clients in connection with the Arizona Corporation Commission’s Renewable Energy Standard rules and regulations, energy efficiency, demand side management and distributed energy initiatives throughout the state.
  • Representation of railroad in crossing safety and other regulatory matters before the Arizona Corporation Commission.
  • Represented one of Arizona's largest home development companies in negotiations for its utility contracts valued at more than $125 million covering water and sewer utility services.
  • Negotiate on behalf of private water and wastewater companies in dealing with groundwater management plans, which impose conservation requirements on municipal water providers.
  • Represent Arizona private water and wastewater companies in all regulatory matters before the Arizona Corporation Commission.
  • Represent businesses, developers and homebuilders in the extension of water, sewer and electric services throughout the state of Arizona.
  • Represent tribal interests in creation of Tribal Utility Authority for development of utility services, including management of federal power allocations.

Water Law

Our water rights attorneys offer clients decades of experience in surface water, groundwater, water rights, water supply, river adjudications and litigation, and all types of water-related litigation. We also provide assistance with water resource planning and the interplay between utilization of water resources and the impact of various environmental laws. Our signature strength – in depth understanding of water rights and supplies and increasingly critical environmental restrictions affecting those rights and supplies – positions us to assist in addressing and resolving the most complex water issues facing the business world. 

Water Permitting and Compliance
We assist clients in formulating strategies to protect and utilize water rights. Our water rights lawyers negotiate and document numerous water rights conveyances, water service agreements and water infrastructure instruments. We frequently conduct due diligence in connection with transactions involving the acquisition of real property and water rights.

We advise clients on compliance with regulatory and permitting matters involving federal, state and local laws, rules and policies, including the assured water supply program, water conservation requirements, Central Arizona Project issues, and the environmental implications of exercising water rights.

Water Legislation and Regulation
We have a long history of representing clients in drafting and negotiating water legislation that includes Arizona’s landmark Groundwater Management Act and the legislation giving rise to the Central Arizona Groundwater Replenishment District. We regularly represent clients in rule-making and regulatory matters before state and federal agencies.

Water Litigation
Our water rights attorneys represent major claimants in river adjudications and water rights litigation, including the Gila River Adjudication and the Little Colorado River Adjudication. In addition to serving as trial counsel, we are involved in settlement negotiations for these and other water controversies through agreements among both American Indian and non-Indian claimants. In addition, we represent clients in interstate stream litigation and related negotiations. We also have experience representing state governments in interstate water banking negotiations.

Water Rights and Supply
Our water rights lawyers represent clients in water supply, water rights and development issues that include:

  • Planning for the use and protection of water rights.
  • Conducting due diligence on water-related matters associated with purchase of raw land, subdivided land, and planned developments.
  • Drafting and negotiating purchase and sale contracts relating to water issues.
  • Analyzing title and survey matters concerning water.
  • Drafting and negotiating water-related agreements, including line extension agreements, water supply wheeling agreements and development agreements between landowners, developers and municipal and private water providers.
  • Securing effluent for recreational, development and industrial uses.
  • Demonstrating an Assured and Adequate Water Supply under Arizona law, including obtaining Analyses, Designations, and Certificates of Assured Water Supply and Water Reports.
  • Providing counsel on water conservation requirements to municipal providers, developments, homeowners associations, golf courses, and industrial interests.
  • Participating in the development of legislation, rulemaking and water-related policy at the state and regional level.
  • Representation in administrative law proceedings involving water resource, rights, and compliance matters.

Representative Experience

  • Representation of developers and landowners as a project team member in the Central Arizona Water Conservation District ADD Water Project, considering means to acquire and develop additional water supplies for central Arizona. The purpose of this exercise is to develop a consensus view of how additional water supplies should be shared and how they should be paid for.
  • Representation of municipal providers and landowners in assessing possible regulation of water uses under the Endangered Species Act.
  • Representation of mining and industrial interests in development of water resource strategies.
  • Representation of a major landowner's interests in the Arizona Municipal Water Users Association Sustainability Project to address water sustainability. In particular, the focus of this project was the Central Arizona Groundwater Replenishment District and its projected water demand, supplies and financial resources. Our water rights attorneys developed recommendations with regard to legislation and policy positions by the Arizona Department of Water Resources that clarified the District's responsibilities.
  • Representation of a master-planned community in the Prescott area in negotiating terms of purchase contracts for production wells and terms of sharing capacity in production wells.
  • Representation of a consortium of landowners participating in first-ever auction of effluent credits by a municipality.
  • Representation of a client in successfully defending a 1935 federal water right decree in the context of the Gila River Adjudication.
  • Representation of clients opposing a claim by the Arizona State Land Department in both adjudications to a federal reserved water right for millions of acres of state trust lands. The Special Master's Report in those proceedings is awaiting review by the Superior Court.
  • Representation in litigation over the United States' claim to federal reserved water rights for Fort Huachuca, a military installation in southeastern Arizona.
  • Lead counsel in putting together a joint water supply study and agreement to do a comprehensive groundwater modeling of hydrologic conditions in the Hassayampa Basin west of Phoenix. To the knowledge of the people involved, this was the first cooperative effort of its kind in the United States.