Navigating Law and Policy Relating to Land and Water
Latham provides thorough legal and policy counsel to clients developing energy, infrastructure, and other projects involving access to and use of federal lands — both onshore and offshore, as well as those involving American Indian lands and interests, including tribal consultation. The Federal Land & American Indian Project Siting Practice regularly advises project owners and sponsors regarding onshore and offshore oil and gas development, renewable energy projects, transmission lines, pipelines, water facilities and desalination plants, surface and underground mines, as well as large-scale energy, infrastructure, and other projects.
As the federal government owns and administers 640 million acres of land onshore and 1.7 billion acres in the Outer Continental Shelf, most large-scale project owners need to navigate potentially dozens of laws, regulatory provisions, and state and federal agencies to secure project permits. Latham has particular experience advising clients on the full spectrum of relevant laws, including:
- 1872 Mining Law
- Archaeological and cultural resource laws, including the Archaeological Resource Protection Act (ARPA), National Historic Preservation Act (NHPA), and Native American Graves Protection and Repatriation Act (NAGPRA)
- Clean Air Act
- Coastal Zone Management Act
- Energy Policy Act of 2005
- Federal Land Policy and Management Act (FLPMA)
- Federal Power Act
- Federal right-of-way and leasing requirements on American Indian trust and allotted lands
- Geothermal Steam Act
- Indian Mineral Development Act and Indian Mineral Leasing Act
- Mineral Leasing Act
- National Environmental Policy Act (NEPA)
- National Forest Management Act (NFMA) and Multiple-Use and Sustained Yield Act (MUSYA)
- National Wildlife Refuge System Administration Act
- National Park Service Organic Act
- Outer Continental Shelf Lands Act (OCSLA)
- Surface Mining Control and Reclamation Act (SMCRA)
- US Army Corps of Engineers Section 404 and Section 10 dredging, filling, and structures permits
- Wildlife laws, including the Bald and Golden Eagle Protection Act (BGEPA), Migratory Bird Treaty Act (MBTA), Marine Mammal Protection Act (MMPA), and Endangered Species Act (ESA)
Understanding the Territory
Latham frequently represents clients with complex projects through all phases of development, including strategic planning, land acquisition or other access, environmental review and entitlement, financing, construction, and operation.
Latham works with federal, state, and local regulators, facilitates consultation with American Indian tribes, manages complex stakeholder relationships, as well as addresses opposition and legal challenges.
Latham lawyers have worked for decades within and with the federal government. The team includes a number of practitioners who have held high-ranking leadership positions in the US Department of the Interior, the Environmental Protection Agency, the US Department of Energy, the US Department of Justice, and the White House.
Latham litigators also draw on deep subject matter knowledge to defend projects against a wide range of administrative and judicial claims. The firm’s lawyers know the relevant federal agencies inside and out and can help clients complete a project expeditiously, efficiently, and in a way that will stand up to potential opposition.
Learning From History
Within the complex matrix of federal, environmental, and Indian law and policy, Latham has developed flexible and creative solutions to help clients succeed. Representative work includes:
- Successfully advised a hedge fund on the development and sale of an oil and gas gathering and distribution system on tribal lands, in partnership with an American Indian tribe. Issues included the NEPA, ESA, the NHPA, federal rights-of-way law, the law governing private entity-tribal business partnerships, and the law governing federal approval of certain agreements and transactions in Indian Country.
- Representing a liquefied natural gas producer with respect to Federal Energy Regulatory Commission and other certain regulatory approvals, including from the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE), of its LNG export project. The client is developing the first floating liquefaction and LNG export project in the US. Secured favorable licensing decisions from the Maritime Administration and US Coast Guard.
- Representing a major utility to resolve issues related to groundwater contamination from historic operations in California on BLM and National Wildlife Refuge lands, including resolving a lawsuit brought by an American Indian tribe, which alleged that the subsequently built treatment plant impacted important cultural resources.
- Advising an innovative transportation company on construction of an experimental test track on federal land in Nevada. The track was permitted and successfully developed within the fast timeline set by the client
- Successfully represented major utilities in the environmental review, entitlement, and construction, as well as litigation related to numerous high voltage transmission lines crossing Bureau of Land Management and National Forest System lands, including cross-border facilities.
- Represented an offshore wind energy development group on the development and financing for construction of a 30-MW offshore wind project located off the Atlantic coast of the US. The project faced a myriad of permitting and construction issues unique to offshore wind projects, including the chartering of multiple vessels in compliance with the Jones Act, subsea construction issues, and permitting restrictions related to aquatic species.