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October 25, 2019 Columns

Editor’s Column

By William R. Drexel

This issue of Infrastructure is the money issue. One article highlights three novel approaches to infrastructure financing. The other reveals the hidden value of the SAFETY Act in helping infrastructure companies mitigate the adverse financial and reputational consequences of high-impact cyber and physical attacks, whether terrorist-related or not.

The first article, Financing the Future: Three Innovative Approaches to Infrastructure Finance by Bud Ellis, Mike Fitzpatrick, and Steve Friend, identifies three innovations capital markets have devised to help utilities raise financing for unique demands such as those arising from climate change, catastrophic storms, or early retirement of aging plant supplanted by newer technology. First, they discuss dedicated utility-rate securitization and the types of utility costs most susceptible to recovery. Second, they review the continuing explosion of “green bond” financing in the utility sector. Finally, they discuss a novel tax-exempt bond structure being used to finance facilities that control stormwater pollution. In a creative incentive structure, the bond holders are eligible to receive payments that vary in relation to the success of the underlying project.

In the second article, The SAFETY Act: An Important Cyber Risk Mitigation Tool for Critical Infrastructure Companies, Kevin Jones and Paul Tiao highlight what should soon become a best practice by public companies desiring to protect their financial integrity, hard-earned reputations, and boards of directors from the tumultuous consequences of cyberattacks, data breaches, or other high-impact attacks. The powerful resource that can safeguard these interests is the Support Anti-Terrorism by Fostering Effective Technologies Act, or SAFETY Act. 

The SAFETY Act was enacted by Congress to encourage the development of antiterrorism technologies that protect the nation and its citizens. Obtaining SAFETY Act “designation” or “certification” provides significant statutory liability protections such as a cap on liability, exclusive federal jurisdiction for all lawsuits, a bar against punitive damages and prejudgment interest, a limitation on noneconomic damages, liability only in proportion to the responsibility of the seller of the technology, and applicability of the government contractor defense. The Act also provides a governmental “seal of approval” validating the strength of the company’s internal programs and board oversight. It can provide an invaluable reputational safeguard in dealing with regulators, government officials, investors, consumer representatives, and other important constituencies.

As always, if you have suggested topics for future issues or would like to submit an article for consideration, please contact me at [email protected].

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