ProjectsPlus

Milbank's Magazine for Energy & Infrastructure Projects

This issue of ProjectsPlus highlights myriad ways in which investments in energy and infrastructure are being shaped by sustainability concerns. We look at decarbonization and the energy transition, the evolution of ESG metrics, the latest scientific report from the UN’s Intergovernmental Panel on Climate Change, and how battery metals and mining are impacted by the shift to electric vehicles and energy storage. We also look at legal changes affecting migratory birds and LIBOR replacement.

Some investors are driven by risk reduction. Others chase technologies that are innovative or will be favored by public policy. Some investors are driven by core values to be “clean and green” while others practice “greenwashing.” The shape of these trends differs across markets from Asia/Pacific, the Middle East and Africa to Europe and the Americas.

As ever, we hope that the topics covered spur conversations and spark new ideas. Please share your comments and questions with us by email to projectsplus@milbank.com.

Scroll down for the latest articles.

ESG Considerations in Project, Energy, and Infrastructure Finance

By Matthew H. Ahrens, Allan T. Marks, Pinky P. Mehta, Allison Sloto

Long before Environmental, Social, and Governance (“ESG”) entered the corporate world’s vernacular, these principles were very much present in various aspects of project development and in the policies and procedures of owners and investors. ESG in project finance has always been key to understanding risk, due to the long-term nature of the investment. Now, the increased prominence of ESG presents a new dimension of investment, credit, and even reputational risk for a range of projects, from infrastructure to energy assets.

Read more from Milbank partners Matthew Ahrens and Allan Marks, and associates Pinky Mehta and Alison Sloto in their chapter of The International Comparative Legal Guide - Environmental, Social, & Governance Law 2022.

U.N. Panel Issues Scientific ‘Reality Check’ On Threat From Climate Change

By Allan T. Marks

Earlier this year, the Intergovernmental Panel on Climate Change (IPCC) released the Working Group I contribution to the Sixth Assessment Report (AR6) entitled Climate Change 2021: The Physical Science Basis. The report, created by 234 authors from 66 countries, lays out in stark terms the threats facing the world from climate change. The scientists conclude that “some of the changes already set in motion—such as continued sea level rise—are irreversible over hundreds to thousands of years. However, strong and sustained reductions in emissions of carbon dioxide (CO2) and other greenhouse gases would limit climate change.”

Read more from Project Finance partner Allan Marks about the report, its energy implications, and next steps in his article for Forbes.

Cleantech Trends in Asia

By James Orme and Rosaline Yusman

Asia’s economic growth translates into an increased demand for energy. To both meet this growing energy demand, and to provide an alternative energy source to fossil fuels, investment in renewable energy assets in the region has ballooned. While traditional forms of renewable energy – for example, hydro, geothermal and wind – have been obvious beneficiaries of this investment, “cleantech” energy has been a focus for many developers and investors in the region too. Against this backdrop, we survey the increased investment in the “cleantech” industry in Asia and the sub-sectors which are attracting most interest, including solar technology, waste management and recycling, carbon capture technology and batteries and energy storage.

Responding To Migratory Bird Law Uncertainty Under Biden

By Matthew H. Ahrens and Allison Sloto

On October 4, the US Fish and Wildlife Service (“FWS”) published a final rule and issued a director's order formally revoking the rule then-President Donald Trump issued on Jan. 7 that had limited liability for incidental takes of migratory birds under the Migratory Bird Treaty Act (“MBTA”). The MBTA makes it unlawful to pursue, hunt, take, capture or kill any migratory bird, and protects virtually every North American bird species. The FWS also published an advance notice of proposed rulemaking (“ANPR”) to consider the creation of a new MBTA incidental take permitting program. In doing so, the FWS has formally begun the process of considering an MBTA permitting scheme. Although the current regulatory environment is uncertain, companies should pay close attention to the ANPR and take the opportunity to provide comments relevant to their respective industries and shape the new regulations.

Fixing ESG: Will Mandatory ESG Disclosures Solve the Problem of Misleading Ratings?

By Javier El-Hage

As ESG initiatives and metrics have gained popularity in the functioning of capital markets worldwide, the U.S. Securities and Exchange Commission (SEC) has been pondering whether to make broad ESG disclosures mandatory. The argument for mandating broad ESG disclosure centers on the need to promote accuracy and market-efficient standardization as an alternative to the currently costly and unreliable market-driven self-regulated ESG ratings system. But many are skeptical that mandatory disclosure will be able to fix the inherent difficulties currently making ESG ratings unreliable and inefficient. Instead, they assert that mandatory disclosure would have the unintended effect of increasing costs of doing business across the board, of increasing the prospect of plaintiff-driven securities fraud litigation, and even of devaluing the significance of any material industry-specific and company-specific required disclosures. Read more from Alternative Investments associate Javier El-Hage on the debate around the current state of ESG disclosure practices, the problematic nature of quantifying and measuring ESG factors, and the possible consequences of a system of mandatory ESG disclosure from his article in the Fordham Journal of Corporate & Financial Law.

Appeals Court Clears the Air and US Rejoins Paris Agreement: What’s Next for Biden’s Climate Change Goals?

By Allan T. Marks

Shortly after his Inauguration, President Biden signed an Executive Order recommitting the United States to the Paris Agreement on climate change. On January 19, 2021, the US Court of Appeals for the District of Columbia Circuit in American Lung Association, et al. vs. EPA vacated the Affordable Clean Energy Rule that the US Environmental Protection Agency (EPA) under the Trump Administration adopted in June 2019. The 2019 Rule had replaced the earlier Clean Power Plan adopted by the EPA under President Barack Obama. Under President Joseph R. Biden, Jr., the EPA will now have the opportunity to create a more aggressive plan to reduce greenhouse gas emissions from thermal power plants (especially coal-fired power plants) without going through the cumbersome regulatory process of repealing the Trump-era rule. Read more from Project Finance partner Allan Marks on the Paris Agreement and the regulation of greenhouse gas emissions in his Forbes article.

United Kingdom: Mining Laws and Regulation 2022

By John Dewar and Emily Whittaker

Mining is one of the few sectors that reported a strong year in 2020. Compared to 2019, net profit increased by 15%, revenue increased by 4% and market capitalisation increased by 64%. These metrics were reported notwithstanding the difficulties faced by the mining industry from shortage of supplies, lack of labour, governmental restrictions and additional requirements that mining operations must now follow in order to comply with COVID-19 guidance. This chapter of the ninth edition of International Comparative Legal Guide’s: Mining Law covers the regulation of the mining industry in the United Kingdom, as well as recent political developments impacting the industry, the mechanics of acquisition of rights, ownership requirements and restrictions, and environmental aspects and land rights.

Transitioning Away From LIBOR: A Practical Guide To Project Financings

By Munib Hussain, Suzanne Szczetnikowicz, Emily Whittaker and Olivia Anderson

In the project finance market in particular, the transition away from LIBOR transition has thrown up numerous ramifications that lenders and borrowers need to consider, including some that extend beyond the guidance provided by the Loan Market Association owing to various project finance specific factors. Financial institutions and borrowers will have their own in-house policy considerations informing their documentary approach and, for practical reasons, will most likely want to achieve consistency across all of their new money, committed and legacy transactions to the extent possible.

Energy Transition in the Middle East

By John Dewar, Sophie Lawrence and Suzanne Szczetnikowicz

In the past year the Middle East has embraced the energy transition with new zeal, spurred on by an influx of investment for renewables, the continued price instability of conventional fossil fuels and the divestment by national oil companies of interests in hydrocarbon assets. Political influence also has had a large impact, with a flurry of announcements coming from the region in the run-up to COP26.

Battery Metals Charge the Green Energy Transition: “I’ve Got My Ion You”

PODCAST with Allan T. Marks and Alec K. Borisoff, featuring Pala Investments’ General Counsel Kate Southwell and Head Strategist Jessica Fung

As the world transitions from fossil fuels to renewable power and other clean energy technologies, we are entering a “super cycle” of demand for new materials. What do all these green initiatives have in common? Batteries. The World Bank has forecasted that the production of metals such as lithium, cobalt, zinc and graphite will need to increase by as much as 500% by 2050 to meet the exploding demand for batteries in EVs, energy storage and electronic devices. In this episode, take a deep dive into the world of battery metals with two guests from Swiss-based Pala Investments.

Energy Transition in Asia-Pacific: “It’s Gettin’ Hot In Here”

PODCAST with Allan T. Marks, James Murray and James Orme with Milbank alum Catherine Marsh

There is no path to meaningful reductions in global greenhouse gas emissions that does not lead through Asia, which accounts for 60% of the world’s population and 75% of global carbon emissions. In the Asia-Pacific region, energy use per capita is rising fast along with the rise in GDP and the buildout of cities, industries and the critical infrastructure that sustains them. The opportunities to invest in new energy assets – whether sustainable or not – are plentiful. Innovative technologies like battery storage and green hydrogen are exciting for the future, but Asia is scaling up its energy sector now. What does that urgency mean for the current investment climate and for the future of the Earth’s climate?

 

Click here to read additional articles previously published in ProjectsPlus.