Transmission and Wholesale Electricity Markets
We have unparalleled expertise in electric transmission and electricity market issues. We serve as FERC counsel to an independent system operator (ISO) and to major transmission owners that operate in other ISOs and regional transmission organizations (RTOs). Having played a lead role in the development, operation and oversight of regional transmission operators and organized markets for electricity products, we are intimately familiar with both the broad policy issues and implementing details of these areas. We have successfully represented our clients in electric rate litigation and rulemaking proceedings before FERC on a diverse range of issues that include transmission planning, wholesale market design and rules, the development of financial transmission rights, formula transmission rates, incentive mechanisms, congestion management, generator interconnection policies, market monitoring and compliance issues, market manipulation issues, and market settlement rules and procedures. We have represented the first for-profit independent transmission company to receive FERC approval and the first for-profit company providing independent tariff administration services to receive FERC approval, as well as several merchant transmission companies, including trans-border projects.
We work hand-in-hand with lawyers in other practice areas to provide seamless legal and policy representation and advise developers of renewable generation on a wide range of transmission and wholesale market issues. We served as FERC counsel to the first offshore wind project to obtain approvals from a state legislature and state regulators and have played a key role in obtaining approval of innovative cost allocation principles for transmission lines to interconnect remote intermittent and renewable resources to the transmission grid. Further, we provide representation with regard to all aspects of FERC’s regulation of renewable and alternative energy clients, including market-based rate applications, market rules, interconnection terms and conditions and power purchase and sales agreements, as well as regarding PURPA and PUHCA issues.
We provide representation in generation facility siting matters, interconnection issues, PURPA issues, standards of conduct, ISO/RTO registration and participation issues, negotiation of electric and natural gas purchase, sales and transportation agreements and counseling regarding retail access issues. We have represented utility-affiliated and unaffiliated power marketers in all matters related to market-based rate applications and the myriad of applicable FERC requirements. We represent our clients before the Department of Energy with regard to Presidential Permits and other export and import issues. We also have represented merchant generators in state facility siting processes.
Publicly Owned Utilities: We are also familiar with and have addressed the issue of FERC’s jurisdiction over publicly owned utilities in a variety of contexts. We participated in the litigation concerning FERC’s authority to order refunds from municipal entities relating to the California energy crisis and worked extensively on this issue during our representation of the TRANSLink Transmission Company, an independent, for-profit transmission company. During this representation, we negotiated, drafted and successfully obtained FERC approval of the various participation agreements, tariffs and operating agreements that permitted the participation of municipally owned utilities in this FERC jurisdictional entity without compromise of the utilities’ independence. Alston & Bird attorneys have also represented municipal utilities on a wide range of energy finance and corporate issues.
Hydroelectric Generation: We provide counseling and state and federal representation regarding licensing and relicensing applications, license compliance issues and license modification matters. Examples of our representations before FERC include hydro-license transfer proceedings and proceedings to modify a project's existing license. We also have represented clients in investigations, such as an investigation into the stability under seismic loading of dams, contingency planning and analysis with respect to the potential disruption of inflows into the impoundments due to earthquakes.
Oil and Natural Gas Industries
To the oil and natural gas industries, we provide counsel and representation from production to burner tip. Our upstream and midstream experience includes joint-interest owner disputes and royalty issues, sales and exchange agreements, LNG supply agreements, joint-interest and operation and maintenance agreements for gas facilities, and import and export authorizations. We also have experience with all aspects of certification and permitting for natural gas projects—LNG terminals, storage reservoirs and pipelines—under federal and state law. We have represented natural gas companies before both state and federal regulatory agencies. In the oil industry, we provide representation and advice to oil pipelines on FERC regulatory issues.
We have represented producers, storage providers, intrastate and interstate pipelines, local distribution companies, marketers and large gas purchasers in commercial transactions and regulatory proceedings. In addition, one of our attorneys served in senior positions at FERC and participated in the development of many of the policies and rules that govern the natural gas industry, which adds an important dimension and perspective to our counseling of clients. We represent companies in all aspects of FERC natural gas industry regulation, from certificate proceedings, tariff filings and rate proceedings to rulemakings, audits and representation in enforcement investigations. We have over 25 years of experience with FERC tariff and rate proceedings, and have represented shippers and pipelines in those proceedings.
We also provide compliance counseling, including advice concerning difficult-to-apply FERC requirements such as shipper-must-have-title, buy-sell and asset management rules, and we have represented clients in enforcement investigations by FERC and CFTC. One of our attorneys was the head of enforcement at FERC, which provides us with valuable insights into the government enforcement process.
FERC and Other Federal Agencies
We have extensive experience representing clients before a number of federal agencies as the need arises, including the Federal Energy Regulatory Commission and the Department of Energy, as well as the federal power marketing agencies, Minerals Management Service and CFTC. We maintain one of the most experienced and respected FERC practices in the nation.
Our experience before FERC includes the following areas:
- Rate Proceedings and Administrative Litigation: We have substantial experience handling complex utility rate proceedings. We understand both the theory and practice of utility ratemaking, which we use to provide our clients with sound guidance through the ratemaking process, from development through disposition. Our ratemaking experience includes individual utility tariffs, regional tariffs and market rules, bilateral agreements and joint tariffs, formula rates, incentive rate applications, declaratory order petitions, and other proceedings. We have a proven track record in handling contested proceedings at FERC, including market design proceedings, disputes regarding power purchase agreements, transmission service agreements, interconnection agreements and various complaint proceedings. Our attorneys are highly experienced litigators and well-versed in administrative litigation before FERC.
- Audit and Enforcement: We represent companies in FERC audits and provide representation in enforcement investigations by FERC and CFTC. We have counseled and represented clients in self-reporting violations to FERC and have also represented clients in investigations initiated by FERC and CFTC. Several of those investigations have resulted in the agency terminating the investigation without taking action; others have resulted in negotiated settlements. One of our attorneys is a former head of enforcement at FERC, which gives us particular insight into the regulatory enforcement processes of both FERC and CFTC. In addition to enforcement defense, we also have a substantial practice providing compliance counseling to help our clients comply with the many, and often complex, regulatory requirements applicable to energy markets and transportation.
- Rulemaking and Policy Initiatives: A core service that Alston & Bird’s energy attorneys provide is analysis of proposed FERC rulemakings and policy initiatives, and development of strategic and substantive responses to these FERC initiatives. There are few if any of FERC’s substantive rulemakings or policy initiatives over the last decade in which our attorneys have not been involved, and we have collectively drafted hundreds of sets of comments on rulemakings and policy initiatives, successfully urging many modifications to FERC's initial proposals.
Other Federal Agencies
Our experience is not limited to practicing before FERC. We have substantial experience working with other federal agencies in connection with energy issues. We represent a major end-use industrial customer in several complex rate proceedings before the Bonneville Power Administration and have represented other clients before other federal power marketing agencies.
State Regulatory Matters
Alston & Bird’s energy lawyers have extensive experience representing electric utilities and natural gas companies in matters regulated primarily or exclusively by state public utility commissions. Much of our state regulatory work, like our federal regulatory work, involves the application of economic principles. We tend to be involved in state matters with the greatest financial and policy implications for our clients; for example, we have represented an investor-owned utility seeking to obtain, pursuant to state law, an advance determination of prudence for building new power plants estimated to cost several billion dollars. We represent another utility in state regulatory litigation over the recovery of costs deferred in accordance with a long-term rate plan. We also represent a natural gas pipeline and a producer in state regulatory proceedings.
Our energy regulatory attorneys support mergers and acquisitions of regulated electric, gas or combination companies; the formation of new entities; and asset purchases and sales throughout each stage of the lifecycle of a transaction. This support includes analysis of state and federal utility regulation and environmental regulation and liability. We start with analysis of the regions of the country that are consistent with the acquirer's strategy and appraise the regulatory situation of particular targets, participate in the valuation process, conduct regulatory due diligence, help craft the transaction agreement and manage the regulatory approval process. We also provide legal opinions necessary for closing and ongoing counseling and support on regulatory issues.
Regulation-Related Court Litigation
Our energy regulatory lawyers include specialists in trial and appellate litigation, both state and federal, that arises in a regulatory context. We have both the relevant knowledge and complex litigation experience to enable us to handle disputes before regulatory agencies, state and federal courts, or all three simultaneously. Our court experience in regulation-related matters includes disputes among owners of a nuclear generator arising out of the shutdown of the plant; disputes between generation owners or developers and construction contractors; representation of a utility in bankruptcy; representations of utilities in parallel federal court, state court and FERC proceedings concerning various matters; representation in arbitrations concerning power purchase agreements; and many appellate cases in both state courts and the U.S. courts of appeal concerning both regulatory agency decisions and federal trial court decisions.
- Currently representing National Grid USA as regulatory counsel and in drafting critical agreements to support the joint development of a $2 billion electric transmission project for the delivery of renewable and balancing energy.
- Currently representing the California ISO in developing rules for integrating the region’s generator interconnection process with its transmission planning procedures and obtaining approval for those rules from FERC.
- Currently representing FirstEnergy Corp. in connection with the integration of its Midwestern transmission facilities into the PJM regional transmission organization and establishing associated transmission rates.
- Currently representing various portfolio companies of Riverstone Holdings LLC, as transactional and FERC regulatory counsel, in acquisitions of gas-fired, dual fuel combustion cycle, biomass and waste-fueled generation facilities in the Northeast and Mid-Atlantic regions.
- Currently representing EDF Renewable Energy, Inc., as project finance counsel and FERC regulatory counsel in a variety of matters, including a proceeding concerning interconnection issues and market-based rate filings.
Selected Electric Industry Representations
- Representation of the California ISO in obtaining regulatory approvals for a revised regional transmission planning process—the first process approved by FERC to address transmission needs to support state renewable energy policies—and the successful defense of complaints related to the California ISO transmission planning process.
- Representation of the California ISO in obtaining regulatory approvals for the new wholesale electric market rules and rules for transmission service, as well as successful defense of those rules on appeal.
- Representation of National Grid in connection with the development and negotiation of regional resource adequacy arrangements, including the development of the first forward market for capacity.
- Representation of an ad hoc group of 21 transmission owners in the Midwest ISO region in successful litigation before FERC regarding the right to assign millions of dollars of credits created in a 2001 settlement agreement, which allowed several utilities, upon payment of $60 million, to withdraw from the Midwest ISO.
- Representation of National Grid in successful litigation before FERC regarding the applicability of the “finality” provision of the NYISO’s settlement procedures to defeat an effort to reopen years of NYISO invoices and resettle tens of millions of dollars of billings in the NYISO energy markets.
- Representation of a family of private investment funds in successful litigation before FERC regarding a proposed change in default allocation rules among participants in an ISO/RTO-administered energy market prompted by the multimillion dollar default of one of the funds on a portfolio of financial hedges related to FTRs.
- Representation of an economic consulting firm in litigation before FERC arising from a complaint filed by the Illinois attorney general alleging price manipulation and other violations of the Federal Power Act in a state-sponsored auction for retail electric supplies, which the economic consultant had structured and managed.
- Representation of National Grid USA in proceedings before FERC for authorizations to issue securities.
- Representation of investor-owned utilities in various state regulatory prudence investigations regarding, among other things, nuclear power plant construction, outage management, fuel procurement, storm response and customer service issues.
- Representation of nuclear utilities seeking the recovery of nuclear decommissioning costs, including the defense of imprudence claims.
- Representation of a group of public and municipal utilities in a joint project to build an interstate transmission project to support a new 600 megawatt, coal-fired, electric-generating facility and to expand transmission capacity, increase reliability of the regional transmission system and expand transmission outlet for wind generation in the region. Responsible for the development of the joint owners’ agreement, drafting the agreement governing the construction and operation of the transmission project, and for addressing issues related to the interconnection of the generation facilities and the transmission project with the transmission systems operated by an ISO and a U.S. governmental agency.
- Representation of Alliant Energy Corporate Services, MidAmerican Energy Service, Xcel Energy Services, Nebraska Public Power District, Omaha Public Power District, Corn Belt Cooperative and TRANSLink Transmission Company as FERC regulatory counsel in connection with the formation of the first for-profit independent transmission company.
- Representation in obtaining FERC approval for the formation and operation of TranServ International Inc., the first-of-its-kind for-profit company providing independent tariff administration and related transmission services for electric utility companies in the United States.
- Representation of National Grid in contract negotiation and FERC approvals related to the construction of a major interconnection facility for an independent power producer, including negotiation and management of regulatory approvals required to implement a novel, multiparty arrangement among National Grid, the project developer and the county industrial development agency that permitted a substantial portion of the interconnection facility to be covered by a pilot arrangement.
- Representation of Montana Alberta Tie Ltd. and MATL LLP in obtaining the necessary federal approvals for the marketing access to the new line, negotiating the arrangements for interconnecting the line to the U.S. transmission grid and addressing various customer-specific issues.
- Representation of the developers of the major high-voltage direct current intertie connecting the transmission systems of the United States and Canada. Assisted in the negotiation of the numerous contracts underlying the finance, construction, use and operation of the project. Provide ongoing advice regarding compliance with new regulatory requirements, and negotiation of the transfer of operational control of the project to the New England ISO.
- Representation of National Grid, FirstEnergy and other utilities in connection with the restructuring of the New England, New York and PJM power pools and the formation of ISOs and RTOs in those regions, including negotiation of governance issues; determination of congestion management programs, including drafting portions of the PJM tariff and agreement; generator and merchant transmission interconnection policies; grid planning policies; zonal rate design; development of wheeling arrangements to facilitate retail access pilot programs; and market monitoring and compliance issues.
- Representation of Gaz Metro before FERC in connection with its acquisition of Green Mountain Power.
- Representation of National Grid before FERC in connection with its acquisition of KeySpan.
- Representation of Niagara Mohawk and National Grid before FERC and state regulators in connection with National Grid’s acquisition of Niagara Mohawk.
- Representation of PowerGen before FERC in connection with its acquisition of LG&E.
- Representation of GPU before FERC in connection with the sale of certain hydro-electric, fossil-fuel and nuclear-generating assets.
- Representation of New England Electric System before FERC in connection with the sale of hydro-electric and fossil-fuel generating assets to U.S. Gen New England.
- Representation of Niagara Mohawk before FERC and state regulators in connection with the sale of its hydro-electric, fossil-fuel and nuclear generating assets in nine transactions.
- Representation of Niagara Mohawk in negotiating, drafting and obtaining the necessary FERC and state regulatory approvals related to buyouts and/or restructurings of certain long-term power purchase agreements in a transaction totaling $4.5 billion.
- Representation of several utilities in litigation involving PURPA QFs (including one case that resulted in New York’s highest court creating a new law recognizing the right to demand adequate assurances of performance for non-UCC contracts).
- Representation of the minority owners of a nuclear generator in litigation against the majority owner arising out of an NRC-required shutdown of the plant.
- Representation of a utility in several arbitrations involving the responsibility for congestion and other costs under power purchase buyback agreements with the purchasers of divested generating assets.
- Challenge in the United States Court of Appeals and in the United States Supreme Court of FERC’s decision that the Federal Power Act gives states and municipally owned applicants a “preference” right to take over hydro-electric projects from private owners at the time projects are relicensed.
- Successful litigation before the New York Court of Appeals concerning the scope of state authority to condition FERC hydro-electric licenses and the defense of that result in the United States Supreme Court.
Selected Oil and Natural Gas Industries Representations
- Representation of a natural gas marketing company and various affiliates in an FERC enforcement investigation of market manipulation allegations.
- Provide counsel and representation to various local gas distribution companies on compliance with FERC requirements, including capacity release and shipper-must-have-title requirements, and representation in self-reporting noncompliant transactions to FERC.
- Provide counsel and representation to Hinshaw companies in FERC proceedings concerning the rates and terms of service for interstate storage and transportation services.
- Provide counsel and representation to an oil pipeline company affiliated with a major oil company in matters concerning FERC regulation, MMS requirements and state regulation.
- Representation of interstate natural gas pipelines in FERC proceedings, including rulemaking proceedings and NGA certificate applications.
- Representation of an interstate pipeline trade association in an appeal of a FERC accounting rulemaking concerning pipeline safety costs and as an amicus in a state Supreme Court appeal of a tax ruling.