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Energy litigation: conventional power in United States

McGuireWoods LLP

McGuireWoods LLP has a strong presence in the utilities industry, fielding a team of specialists with previous in-house experience at various utilities entities. The firm has expertise in handling rate cases, tariff disputes, compliance and issues with regional transmission organizations (RTOs). Another area of strength is energy enforcement cases, where the team is regularly involved in negotiations and proceedings with the Federal Energy Regulation Commission (FERC). Todd Mullins co-chairs the power sector group within the energy industry team, and is a name to note for FERC enforcement cases. Noel Symons is a member of the energy strategic advisory board, and is noted for his in-depth knowledge of the RTO market. Julia English was promoted to partner in 2020 and has a strong background representing energy clients in proceedings before the FERC, the US Department of Energy and the Department of State. All individuals mentioned are based in Washington DC.

Practice head(s):

Todd Mullins; Noel Symons

Other key lawyers:

Julia English

Key clients

Exelon Corporation

DATC Path 15, LLC

Cleco Corporation

Edison Electric Institute

Evergy

Black Hills Energy

Omaha Public Power District

Work highlights

  • Represented Exelon in a novel reliability-must-run case to keep Exelon’s Mystic Generating Plant, a uniquely situated facility adjacent to an affiliate-owned liquefied natural gas import terminal, operational to provide fuel security in ISO-New England.
  • Advised Cleco Power LLC on its filing before the Federal Energy Regulatory Commission (FERC) to recover fixed costs of a generation unit designated by the Midcontinent Independent System Operator, Inc. (MISO) as a System Support Resource (SSR).
  • Assisted the Edison Electric Institute (EEI), Electric Power SupplyAssociation (EPSA), and Energy Trading Institute (ETI) with an amicus brief in support of the statute of limitations arguments made by Vitol, Inc. and in opposition to arguments made by FERC in a case in which FERC requested over $2.7m worth of penalties and disgorgement and fined one of Vitol’s employees $1m after concluding its trading activity manipulated California electricity markets.

Steptoe & Johnson LLP

Steptoe & Johnson LLP has a broad range of expertise in complex regulatory, litigation, enforcement, and antitrust matters, routinely acting for a number of prominent electric utility companies. The team advises on FERC enforcement proceedings, issues with rates of transmission and disputes with regulators concerning the use of generation assets. Richard Roberts heads the energy group and is noted for his expertise in FERC cases. In San Francisco, Laurie Edelstein is recommended for energy litigation and myriad regulatory matters. William Keyser is recognized for his in-depth knowledge of federal electric regulation and Doug Green has expertise in antitrust-related matters, as well as various other regulatory issues. David Raskin, Charles Mills and Steven Ross are also leading names in the market. Also of note, William Keyser joined from K&L Gates in July 2020. Named individuals are based in Washington DC unless stated otherwise.

Practice head(s):

Richard Roberts

Other key lawyers:

Douglas Green; Daniel Mullen; Marc Spitzer; Jennifer Key; David Raskin; Charles Mills; Steven Ross; Karen Bruni; Laurie Edelstein; William Keyser

Key clients

Southern California Edison (SCE)

Entergy

Eversource Energy

American Electric Power

Exelon Corporation

Duke Energy

Berkshire Hathaway Utilities (PacifiCorp/NV Energy)

Public Service Electric & Gas Company

Evergy

Pacific Gas & Electric Company

Work highlights

  • Defending PG&E in 53 related lawsuits involving 78 plaintiffs arising out of the fire at the Ghost Ship warehouse in Oakland in December 2016.
  • 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.
  • Representing Eversource Energy in a series of class action lawsuits based on claims of antitrust and fraud and seeking $3.66bn in damages, trebled.

Bracewell LLP

'Hardworking, dedicated and innovative', the team at Bracewell LLP represents a range of power producers in litigation and arbitration, and in proceedings involving state and federal regulatory bodies. In addition to its enforcement work, the team represents energy companies in domestic and cross-border commercial disputes covering conventional power issues and renewables. Stephen Crain heads the litigation practice and has a broad client base consisting of developers and producers, commodity traders and suppliers to the energy industry. Austin-based Deanna King and Andrew Zeve co-chair the energy litigation practice; King has broad expertise in litigation, mediation and arbitration, while Zeve is noted in particular for his knowledge of the oil and gas industry. Bradley Benoit is another name to note for commercial litigation, and Catherine McCarthy in Washington DC chairs the energy regulatory department. Named individuals are based in Houston unless stated otherwise.

Practice head(s):

Stephen Crain; Andrew Zeve; Deanna King

Other key lawyers:

Paul Wight; Christopher Dodson; Bradley Benoit; Catherine McCarthy; Michael Brooks

Testimonials

‘This practice is willing to work with to meet your legal needs and budget needs. They are hardworking, dedicated and innovative in problem solving. The quality of their legal product is top notch. Time and time again they impress me with the quality of their legal service.’

‘Michael Brooks feels like an extension of my staff which adds tremendous value. He pays attention to how our company works, how my executives want to see or hear the work product and he is very detail focused. His writing is exceptional. I have brought him into various board meetings to discuss his work, his ability to explain complex legal topics in a meaningful way that board members understand is something that most attorneys cannot do and his teaching background shows.’

Work highlights

  • Advised Equinor Wind as outside project counsel on its flagship offshore wind projects in the United States – Empire Wind and Boardwalk Wind – being developed offshore New York.
  • Advising Powerex Corp. as its US legal advisor in negotiations and proceedings to establish legal and regulatory frameworks for cross-border participation in two key newly organized wholesale electricity markets in western US.
  • Advising Central Maine Power Company on FERC matters related to the New England Clean Energy Connect $950m transmission project.

Baker Botts L.L.P.

Baker Botts L.L.P. has deep expertise in energy litigation, representing generators, processors, transporters, distributors and marketers of all forms of conventional power, from natural gas to coal. In addition, the firm also has a strong renewable energy client base. Names to note include Bill Kroger, who heads up the practice, and Kevin Jacobs, a commercial litigator and arbitration expert with a focus on the energy, chemicals and transportation industries. Meghan McElvy and Megan Berge are also noted. McElvy specializes in energy litigation and regulatory matters, while Berge leads on climate change-related matters. John Anaipakos, George Fibbe and Washington DC-based Jeff Wood are other key members of the team. All named individuals are based in Houston unless stated otherwise.

Practice head(s):

Bill Kroger

Other key lawyers:

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

Key clients

Oxbow Calcining LLC

Centerpoint Energy Houston Electric, LLC

XCEL Energy

US Chamber of Commerce

Kindle Energy LLC

Entergy Services, INC

Engie North America, INC.

LG&E and KU Energy LLC

Greater El Paso Chamber of Commerce

Hunt Consolidation, INC.

Vistra Energy

ITC Holdings INC.

Orlando Utilities Commission

Work highlights

  • Represented Oxbow Calcining LLC in an arbitration brought by PASE—defeating over $60m in PASE’s claims, winning $2.1m in counterclaims and costs, and obtaining a termination of the parties’ contract.
  • Represented Engie North America, INC in a first-of-its-kind case involving a claim against a windfarm for radio-signal interference.
  • Defending Orlando Utilities Commission in a class action tort suit asserting property and personal damages from alleged coal dust contamination emanating from landfill operations.

Jenner & Block LLP

Jenner & Block LLP represents utilities providers, public power companies, competitive energy marketers, and major energy users in a variety of regulatory commission proceedings and in litigation. In addition, Chicago-based co-managing partner Randy Mehrberg is experienced in a full range of corporate matters for energy sector-clients. Suedeen Kelly and Matthew Price jointly lead the energy practice alongside Mehrberg. Price is noted for his constitutional and regulatory litigation practice, and Kelly, a former FERC commissioner, is recommended for litigation, enforcement matters and a litany of non-contentious matters in the energy industry. Also recommended is David DeBruin, who has experience in litigation at trial and appeal. All named partners are based in Washington DC unless stated otherwise.

Practice head(s):

Randy Mehrberg; Suedeen Kelly; Matthew Price

Other key lawyers:

Glenn Rippie; David DeBruin

Key clients

Arcadia Power

Entergy Group

National Association of Regulatory Utility Commissioners (NARUC)

NTE Energy

New Brunswick Power

Loews Boardwalk Pipelines

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

  • Advised the National Association of Regulatory Utility Commissioners on a case that threatened to reverse decades of FERC precedent and preempt state law in more than 40 states.
  • Represented Constellation Energy Nuclear Group before New York Supreme Court Justice Roger D. McDonough who rejected arguments that the state’s Public Service Commission (PSC) overstepped its authority under state law when it instituted a zero emissions credit program.
  • Represented Exelon in litigation in four different forums: Federal court, state court, before FERC, and before the state administrative agency.

Dentons

Dentons fields a sizeable practice group that represents government bodies and utilities in energy compliance and advocacy matters, including FERC regulatory work and enforcement. In particular, the team advises clients on matters relating to operations, rates, project developments, and agency rule-making. Washington DC-based Clinton Vince chairs the US energy practice and co-chairs the global energy sector practice. Of note in January 2020, David McGimpsey, John Rhine and Michael Griffiths joined as part of the firm's combination with Bingham Greenebaum Doll LLP, and Clifford Levine joined in a combination with Cohen & Grigsby, P.C.. Emma Hand and Peter Thieman are recommended on the more junior end of the partnership.

Practice head(s):

Clinton Vince; David McGimpsey; John Rhine

Other key lawyers:

Emma Hand; Peter Thieman; Karl Zobrist

Testimonials

‘Karl Zobrist is the partner with whom I have experience. He is exceptionally knowledgeable about the energy industry in general and RTO/ISOs in particular. He provides thoughtful counsel, with historical perspective and context. He is also able to advise on aspects of corporate law when needed by our board. His firm provides resources in other areas when needed such as more complex tax and employment issues. The services of Karl and his firm are a valuable resource which supports our board in fulfilling its responsibilities.’

Key clients

City Council of the City of New Orleans

Tri-State Generation & Transmission Association

New York Power Authority

Tenaska

Anterix

Midcontinent Independent System Operator, Inc. (MISO)

Colorado Springs Utilities

MacQuarie Energy LLC

CPS Energy

Evergy Missouri West

Work highlights

  • Advising NOLA City Council on all of its retail ratemaking matters with respect to its regulation of Entergy New Orleans, Inc. (“ENO”) as well as representing the City Council before FERC in proceedings related to ENO that impact the Council’s constituents.
  • Assisting NYPA with federal energy regulatory and strategic advice in connection with FERC permitting requirements and considerations in the development, ownership and operation of certain interconnection and transmission facilities to deliver the wind power to the NY grid.
  • Advising Anterix on efforts to play a key role in the modernization of communications infrastructure in the nation’s various critical infrastructure sectors, and particularly in the utility sector.

K&L Gates

K&L Gates has expertise handling contentious matters related to new rule-making and regulatory initiatives, compliance with market rules and  administrative and appellate litigation. The practice group also acts for utilities companies in matters involving FERC and various state regulatory agencies. Contacts in the team include Elizabeth Crouse, who heads up the practice group; Donald Kaplan in Washington DC, whose work primarily involves FERC-related matters for electrical utilities; and Elizabeth Thomas, noted for her expertise in the renewables sector. Named lawyers are based in Seattle unless stated otherwise. William Keyser joined Steptoe & Johnson LLP in July 2020, and David Hattery left for an in-house position in April 2021.

Practice head(s):

Elizabeth Crouse

Other key lawyers:

Buck Endemann; Donald Kaplan; Elizabeth Thomas; Kari Vander Stoep

Key clients

PJM Transmission Owners

PPL Electric Utilities Corporation

King County, Washington

Oklahoma Gas & Electric Company

Work highlights

  • Acting as co-counsel for the PJM Transmission owners in disputes involving the rights to plan and construct replacements for aging transmission facilities.
  • Successfully represented PPL in a complaint proceeding before FERC in which the National Railroad Passenger Corporation (Amtrak) challenged the its obligation to pay for network transmission service based on unique arguments that attacked the basis upon which PJM and PPL allocated transmission cost responsibility among its transmission customers.
  • Assisted King County with filing a lawsuit against Puget Sound Energy (PSE), alleging that PSE failed to provide King County a full 25% of the value of Emissions Credits attributed to the County-owned Cedar Hills landfill.

Morgan, Lewis & Bockius LLP

Morgan, Lewis & Bockius LLP acts for a broad range of clients in the energy industry, ranging from electric utilities and renewable generation companies, to power marketers and institutional investors. Key areas of focus for the team include energy storage resources, offshore wind developments, power transmission and nuclear energy. Brad Fagg co-heads the energy litigation practice in Washington DC and focuses on commercial and regulatory disputes for large energy companies. Houston-based Michelle Pector co-chairs the energy litigation group and represents energy companies in a range of corporate and commercial disputes, such as supply chain disputes. Los Angeles-based James Dragna heads the firm's environmental group, where John McGahren is also recommended.

Practice head(s):

James Dragna; John McGahren; Brad Fagg; Michelle Pector

Other key lawyers:

John Gisleson; Stephen Spina

Key clients

Eagle Crest Energy

Edison Energy/Altenex LLC

Southern California Edison

Southern California Gas Company

Spark Energy, Inc. (Spark), and National Gas & Electric, LLC (NGE)

Western Generation Partners

Work highlights

  • Represented Spark and NGE as defendants in a post-M&A earnout dispute arising from NGE’s acquisition of Major Energy Services, LLC and Spark’s subsequent acquisition of Major Energy from NGE.
  • Acting as coordinating and litigation counsel for Southern California Gas Company and Sempra Energy in various matters arising from the natural gas leak at the Aliso Canyon storage facility.
  • Represented Southern California Edison in defeating a plaintiff’s attempt to halt the decommissioning of the San Onofre Nuclear Generating Station in San Diego.

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP represents a variety of power sector clients in administrative litigation, appeals and enforcement proceedings. Contacts in Washington DC include John Estes, who heads up the energy regulation and litigation practice, and former FERC commissioner Mike Naeve (of counsel). A recent highlight for the team was Estes' representation of NextEra in a Ninth Circuit case concerning FERC's authority to enforce contract obligations in light of adversary proceedings before the bankruptcy court.

Practice head(s):

John Estes

Other key lawyers:

Will Barksdale; Mike Naeve