Denver

Tariffs have become one of the most unpredictable variables in U.S. energy project development. Duties on imported steel, solar cells, batteries and other equipment have shifted repeatedly over the past several years, often with little advance warning, and there is every reason to expect that volatility to continue as trade policy moves from one administration and one negotiation to the next. That volatility lands squarely in the middle of build-transfer agreements (“BTAs”), a structure widely used across the renewable and conventional power sectors. In a typical BTA, a developer builds a project, and once the project reaches mechanical or substantial completion, the developer sells it to a buyer, who then owns and operates the asset going forward (and, in the case of a renewable project, gets the benefit of the associated tax credits). Because the BTA is signed well before the project is built, the parties are effectively agreeing on a price today for equipment that will be procured, and tariffs that will be assessed, months or years down the road. That timing gap creates a real tension. Sellers need enough price protection to procure equipment without absorbing open-ended tariff risk on a fixed-price contract. Buyers need enough cost certainty to underwrite the transaction, secure financing and, in the case of regulated utilities, justify the purchase price to regulators. Getting the balance right requires thinking carefully, up front, about how tariff risk is defined, allocated and capped.

Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by state laws regulating the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products. This area is rapidly developing as states create new laws or amend existing ones, and the penalties and litigation risks for non-compliance can be significant.