Energy litigation: conventional power in United States

McGuireWoods LLP

The team at McGuireWoods LLP is noted for its ‘strong Federal Energy Regulatory Commission (FERC) enforcement skills’, and stands out for its work for major utilities and energy companies in landmark cases in the energy sector. A recent highlight saw the team advising on the creation of the first regional energy market construct in the south-east. The team is also well equipped to handle tariff disputes, rate cases and issues with regional transmission organizations (RTOs). Todd Mullins and Noel Symons co-chair the group; Mullins has extensive experience representing energy traders in Commodity Futures Trading Commission (CFTC) and FERC trading investigations, while Symons has a broad practice and is noted for his RTO expertise. Julia English focuses on project development and finance and has experience assisting clients with Department of Energy (DOE) loan guarantee applications. All named individuals are based in Washington DC.

Practice head(s):

Todd Mullins; Noel Symons

Other key lawyers:

Julia English; Bernie McNamee

Testimonials

‘Strong FERC enforcement skills.’

‘Todd Mullins – responsive, practical, knowledgeable, effective’

Work highlights

  • Represented a client in a reliability-must-run (RMR) case to keep a plant operational.
  • Advising Southeast Energy Market Members on the first regional energy market construct in the south-east.
  • Representing several clients in an amicus brief in support of statute of limitations arguments in a case in which FERC requested over $2.7m of penalties.

Steptoe & Johnson LLP

Steptoe & Johnson LLP's stellar client roster includes several of the largest electricity companies in the US, and the firm is a go-to antitrust counsel on internal and government investigations and matters involving the power industry. The group’s deep bench includes former FERC enforcement lawyers, former Commission advisors and senior office directors. Richard Roberts co-chairs the practice with Daniel Mullen; Roberts is active at both FERC and the appeals courts, while Mullen handles commodities enforcement matters and assists clients with the development of energy regulatory compliance programs. Other key practitioners include Charles Mills, David RaskinSteven Ross and Doug Green, who handles a range of issues for the utility sector and is an expert in antitrust matters. Associate Karen Bruni focuses on the regulation of electric utilities by FERC, including in proceedings related to transmission and interconnection issues.

Practice head(s):

Richard Roberts; Daniel Mullen

Other key lawyers:

Charles Mills; David Raskin; Steven Ross; Doug Green; Jennifer Key; Karen Bruni

Testimonials

‘Excellent knowledge of relevant laws, regulations and procedural rules.’

‘High degree of credibility before courts and agencies in matters related to utilities, particularly regarding practice before federal courts and the Federal Energy Regulatory Commission.’

‘Very client-focused as to both communication and controlling costs. Easy to work with. Attorneys adhere to a high level of ethical standards.’

Key clients

American Transmission Co.

Duke Energy Carolinas, LLC

Eversource, Inc.

Southern California Edison Company

Tipmont REMC

Work highlights

  • Represented Eversource Energy in a successful series of class action lawsuits based on claims of antitrust and fraud and seeking $3.6bn in damages, trebled.
  • Defending Duke Energy Carolinas against antitrust breach of contract counterclaims alleging hundreds of millions of dollars in the first case questioning the Supreme Court’s decision in Verizon Commc’ns, Inc. v. Law Offices of Curtis Trinko.
  • Defended ATC in a case brought by an insurance company seeking to recover amounts it paid out for business interruption losses incurred after a transmission explosion.

Bracewell LLP

Bracewell LLP is highlighted for its ‘excellent guidance’, and is active in high-profile and complex matters in the power industry. The team represents energy companies as both plaintiffs and defendants in litigation and arbitration throughout the US and before state and federal regulatory bodies. It has extensive experience in multi-party contested proceedings, including disputes related to compensation for energy infrastructure investment. Houston-based partner Stephen Crain is the firm-wide chair of the litigation group, and Deanna King in Austin co-chairs the energy litigation practice with Andrew Zeve in Houston; Zeve is noted for his expertise in oil and gas disputes. Other key practitioners include bankruptcy expert Bradley Benoit in Houston, and Washington DC-based duo Catherine McCarthy, who chairs the firm’s energy regulatory group, and Michael Brooks, who focuses on commodities and derivatives law.

Practice head(s):

Stephen Crain; Andrew Zeve; Deanna King

Other key lawyers:

Bradley Benoit; Catherine McCarthy; Michael Brooks

Testimonials

‘The Bracewell team provides excellent guidance digesting the changing priorities among regulators and how the changes can impact clients. The team is also very efficient in the tactical handling of regulatory filings, etc.’

‘The team can take commentary and thoughts and help frame them into targets and goals that can be quantified and tracked.’

Key clients

Powerex Corp.

Tenaska, Inc.

Hilcorp Energy Company

Convergent Energy and Power

Avangrid Networks

Powerex Corp.

Work highlights

  • Representing several Tenaska affiliates in a lawsuit, and serves on the defense steering committee for the MDL litigation in disputes arising from Winter Storm Uri.
  • Advising Powerex Corp. as its US legal advisor in negotiations and proceedings to establish legal and regulatory frameworks for cross-border participation in two wholesale electricity markets in the Western United States.
  • Advising Central Maine Power Company on FERC matters related to the New England Clean Energy Connect $950m transmission project.

Jenner & Block LLP

Jenner & Block LLP has a highly regarded energy practice, with a strong track record in successfully representing utilities in the full range of regulatory commission proceedings and subsequent litigation. Its broad client base consists of investor-owned utilities, public power companies, competitive energy marketers and major energy users. Practice leadership is split between co-managing partner Randall Mehrberg in Chicago, and Washington DC-based duo Suedeen Kelly and Matthew Price. Kelly leverages her experience as a former FERC commissioner to advise clients on a wide range of issues, including the compliance of power sales contracts and self-supply agreements with state and federal regulatory requirements, while Price focuses on constitutional and regulatory litigation.

Practice head(s):

Randall Mehrberg; Suedeen Kelly; Matthew Price

Other key lawyers:

Glenn Rippie; David DeBruin

Testimonials

‘Jenner has an extraordinary energy practice – one of the strongest in the country.’

‘Matt Price is the strongest energy litigator I know. In my opinion Suedeen Kelly runs the best FERC practice in the country.’

‘Subject matter expertise is unmatched, especially in regard to energy transmission and distribution.’

‘Suedeen Kelly is the most insightful, effective advocacy professional I’ve worked with on any transaction or business strategy. She is extraordinarily well respected within her network, helping me navigate our business and regulatory path to a successful outcome without rancor and drama typical in a new venture.’

Key clients

Arcadia Power

Entergy Group

National Association of Regulatory Utility Commissioners (NARUC)

NTE Energy

New Brunswick Power

Public Service Company of New Mexico

Zenith Energy

The Salt River Project

Nacero, Inc.

Exelon Corporation (and subsidiaries)

Panda Power Funds

Pacific Gas & Electric

Bonneville Power Administration

Public Service Enterprise Group

WEC Energy Group

American Electric Power

National Grid

Pinnacle West Capital Corporation

Southern California Edison

Work highlights

  • Represented Exelon Corporation in securing a major victory regarding FERC’s issuance of a new 50-year license for the Conowingo Hydroelectric Project.
  • Acted on behalf of Morongo Transmission LLC in filing at FERC for the approval of transmission rates for a 30-year leasehold interest in a transmission line crossing the Reservation of the Morongo Band of Mission Indians.
  • Represented a subsidiary of Xcel Energy before the district court on a motion to intervene, and then at the US Court of Appeals for the Fifth Circuit as amicus curiae, against claims that they violated the Commerce Clause of the Constitution.

Baker Botts L.L.P.

The ‘very experienced team’ at Baker Botts L.L.P. handles the gamut of issues faced by conventional electricity and gas power industry clients. It works closely with other departments at the firm such as global projects, environment, labor and employment to provide a broad range of advice. The group has been particularly active in litigation arising from Winter Storm Uri, with John Anaipakos and Meghan McElvy handling a number of these disputes. The team is also skilled in advising on various issues related to business interruption, including emergency response, bankruptcy and restructuring, force majeure and environmental class actions, among others. George Fibbe previously served as deputy general counsel for litigation, regulation and enforcement for the US Department of Energy and focuses on high-stakes renewables and nuclear matters. All named lawyers are based in Houston, where practice head William Kroger is also based.

Practice head(s):

William Kroger

Other key lawyers:

Meghan McElvy; Megan Berge; John Anaipakos; Kevin Jacobs; George Fibbe

Testimonials

‘Practical advice; very experienced team.’

Key clients

AES Corporation

Brookfield Renewable US

Calpine Corporation

CenterPoint Energy

Clearway Energy Group, LLC

ENGIE North America, Inc.

Entergy Services, Inc.

Freeport Power Limited

Griddy Energy LLC

ITC Project Holdings LLC

Kindle Energy LLC

LG&E and KU Energy LLC

Longroad Energy

Murphy Exploration & Production Company

NRG Energy, Inc.

Oxbow Calcining LLC

Phillips 66

Sempra Energy

Skyline Renewables

Sunnova Energy Corporation

Talen Energy Corporation

XCEL Energy

Work highlights

  • Assisted Oxbow Calcining LLC in ending a series of long-running disputes against a former contractual counterpart, including securing a complete victory for Oxbow in an arbitration case.
  • Representing NRG Energy, Calpine, and more than 10 other power generation companies in the Winter Storm Uri Multi-District Litigation (MDL) in Texas state court.
  • Defended Griddy Energy and its non-retailer affiliates, Griddy Technologies and Griddy Holdings, in several civil class action lawsuits alleging damages in excess of $1bn.

Dentons

Dentons has extensive experience representing government bodies and electric and gas utility entities on energy compliance and advocacy. The group also advises a wide range of clients before FERC, including in matters related to operations, rates, project development, enforcement and compliance, and agency rulemaking. Practice head Clinton Vince was named general counsel of the GridWise Alliance Grid Infrastructure Advisory Council’s (GIAC) board of directors in July 2021 and has experience advising on major project developments as well as representing clients in appellate cases, including at the US Supreme Court. Emma Hand is another key practitioner, handling demand-side management programs and smart cities initiatives. All named lawyers are based in Washington DC.

Practice head(s):

Clinton Vince

Other key lawyers:

Emma Hand; Peter Thieman; Karl Zobrist

Key clients

City Council of the City of New Orleans

CPS Energy

Rayburn Country Electric Cooperative, Inc.

Tri-State Generation & Transmission Association

Evergy Metro, Inc.

Evergy Missouri West, Inc.

Nuclear Development

Work highlights

  • Representing CPS Energy in a high-stakes Winter Storm Uri case against ERCOT.
  • Representing Rayburn Country Electric Cooperative, Inc. in crisis management, disputes, regulatory and securitization issues in connection with Winter Storm Uri.
  • Advising long-term client The Council for the City of New Orleans on all its retail rate-making matters with respect to its regulation of Entergy New Orleans, as well as representing it before FERC.

Gibson, Dunn & Crutcher LLP

Gibson, Dunn & Crutcher LLP handles high-profile FERC enforcement and litigation cases for major clients such as Marathon Petroleum Corporation. It also regularly represents utilities and private equity companies in the acquisition of other utilities and large generating facilities, including large wind and solar power projects in the US. The group has acted for clients in rate proceedings as well as class actions. In Washington DC, William Hollaway and Jeffrey Jakubiak are key contacts.

Other key lawyers:

William Hollaway; Jeffrey Jakubiak; Janine Durand; Jason Fleischer

Key clients

Energy Transfer and Rover Pipeline

Marathon Petroleum Corporation

SB Energy Global Holdings

Berkshire Hathaway Energy Company

BHE Renewables

Neptune Regional Transmission System

Hudson Transmission Partners

TC Energy

Wisconsin Power and Light Company

Versant Power (f/k/a Emera Maine)

Westlands Water District

Bayou Bridge Pipeline

IMG Energy Solutions

Tampa Electric Company

Dakota Access Pipeline

Haynes and Boone, L.L.P.

The power litigation group at Haynes and Boone, L.L.P. has a strong presence in the Texas power industry, representing a diverse client base that includes renewable and thermal power generators, investors and lenders, municipal utilities and retail electric providers, among others. The group has an extensive history working on matters connected to the Electric Reliability Council of Texas (ERCOT) and has been particularly active in Winter Storm Uri-related litigation. Practice co-head Leslie Thorne splits her time between New York and Austin; Ben Mesches co-leads the team in Dallas.

Practice head(s):

Leslie Thorne; Ben Mesches

Other key lawyers:

Jason Jordan; Andrew Guthrie

Testimonials

‘The team is highly experienced in energy and one of the best I have ever encountered.’

‘The team at Haynes and Boone has a deep industry knowledge that comes from years of experience across the conventional power space. This experience spans financing, insolvency, regulatory, corporate and disputes practice areas and they draw on this experience in an integrated manner to provide insight and strategic solutions. They are unique because they are able to apply this skill-set in a client-focused way.’

Key clients

Panda Power Funds

Papalote Creek II, LLC (this is a joint venture with RWE)

Southwest Power Pool, Inc.

South Texas Electric Cooperative, Inc. (STEC)

EDP Renewables North America, LLC

NextEra Energy

Tokai Carbon

Contour Global

Ormat Technologies

RWE Renewables Americas, LLC

Work highlights

  • Representing Panda against ERCOT in a case of first impression with respect to Capacity, Demand and Reserves reports relied on for the financing of three gas-fired generating units.
  • Represents multiple clients in relation to mass tort litigation arising out of Winter Storm Uri in Texas.
  • Representing Ormat’s subsidiary Viridity Energy Solutions, a qualified scheduling entity (QSE), in commercial litigation arising out of ERCOT’s demand response programs.

Hunton Andrews Kurth LLP

Hunton Andrews Kurth LLP maintains a strong focus on the electric power sector; the firm regularly acts for electric and gas utilities in defense actions brought under the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act, as well as handling environmental litigation related to energy storage and waste disposal. Other areas of expertise include representation in rate cases, corporate change-in-control proceedings and tariff disputes. Based in Washington DC, practice head Eric Murdock draws on 30 years of litigation experience.

Practice head(s):

Eric Murdock

Other key lawyers:

Pete Johnson; Nash Long

Key clients

Potomac Electric Power Company

Work highlights

  • Representing Potomac Electric Power Company (PEPCO) in connection with an ongoing effort to investigate current and historical environmental conditions at Pepco’s Benning Road facility.

K&L Gates

K&L Gates represents a diverse range of clients in the electric power industry, from traditional electric utilities to grid-edge developers in renewable generation, transmission and storage technologies. It also regularly advises on the interconnection of utility-scale generation facilities and compliance with FERC and state regulations, as well as assisting on market tariffs and rules in high-profile FERC litigation. Based in San Francisco, Buck Endemann co-chairs the practice with Elizabeth Crouse and Teresa Hill in Seattle. Washington DC-based partner Donald Kaplan is another key practitioner, focusing on representation before courts and administrative agencies. Elizabeth Thomas in Seattle is noted for her renewables expertise.

Practice head(s):

Elizabeth Crouse; Buck Endemann; Teresa Hill

Other key lawyers:

Donald Kaplan; Elizabeth Thomas; Kari Vander Stoep

Key clients

SOO Green HVDC Link ProjectCo, LLC

XO Energy, LLC

PJM Transmission Owners

Oklahoma Gas and Electric Company

PPL Electric Utilities Corporation

Morgan, Lewis & Bockius LLP

Morgan, Lewis & Bockius LLP advises a diverse range of clients, from nuclear start-ups and offshore wind developers to transmission development groups and energy storage companies. The group is particularly active in the nuclear energy space, representing clients on second-license renewals, advanced reactor licensing and with decommissioning and efforts toward the management of spent nuclear fuel. Washington DC-based partner Brad Fagg and Michelle Pector in Houston co-chair the energy litigation department, while James Dragna and John McGahren co-lead the environmental practice from Los Angeles and Princeton, respectively.

Practice head(s):

Brad Fagg; Michelle Pector; James Dragna; John McGahren

Other key lawyers:

John Gisleson; Stephen Spina

Key clients

Florida Power & Light Co.

Duke Energy

Franklin Electric Co. Inc.

City of Vernon

Work highlights

  • Represented Florida Power & Light Co. in a victory in the US Court of Appeals for the DC Circuit on behalf of FPL in Friends of the Earth v. US Nuclear Regulatory Commission.
  • Represented Duke Energy in a successful $130m power plant dispute.
  • Representing Franklin Electric Co. Inc. and its Mexican subsidiary in a suit alleging the defendants breached the contract for cross-border customs services and misappropriated trade secrets.

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP is well regarded for its transactional expertise, specializing in high-profile M&A transactions involving utilities, and the firm also represents clients in FERC enforcement proceedings and FERC decisions in the US Courts of Appeals. John Estes chairs the group and has extensive experience advising both traditional utilities and new entrants as well as handling disputes regarding organized electric markets. Counsel Will Barksdale has strong expertise in anti-manipulation rules, RTO/ISO tariffs and duty of candor rules, and of counsel Mike Naeve is a FERC policy expert handling electric transmission cases and wholesale rate proceedings. All named lawyers are based in Washington DC.

Practice head(s):

John Estes

Other key lawyers:

Will Barksdale; Mike Naeve