Energy litigation: conventional power in United States

McGuireWoods LLP

McGuireWoods LLP represents a high volume of utilities clients in the US. A range of team members have prior in-house experience at utilities companies, which has resulted in the firm attracting a strong pipeline of rate cases, tariff disputes and litigation involving regional transmission organizations (RTOs). The firm is also frequently engaged in Federal Energy Regulation Commission (FERC) enforcement cases. Todd Mullins is co-chair of the power sector in the energy industry team; he is a leading expert in FERC enforcement cases. Noel Symons is former co-chair of the utilities team and is recognised for his expertise in the RTO market and cost allocation cases. Julia English is a key name at the senior counsel level. All individuals mentioned are based in Washington DC.

Practice head(s):

Todd Mullins; Noel Symons

Other key lawyers:

Julia English

Key clients

Dominion Energy

Exelon Corp

Evergy

NextEra Energy

Cleco Power

Duke-American Transmission Co

Duke Energy Corp

Public Service Enterprise Group (PSEG)

Work highlights

  • Represented Exelon in a reliability-must-run case to keep its Mystic Generating Plant operational to provide fuel security in ISO New England.
  • Acted for an independent transmission company in its FERC approval for the development of a 600MW electric transmission line known as the San Luis Transmission Project, located in California’s San Joaquin Valley.
  • Represented an independent transmission company in a rate case to recover the costs of its share of a transmission built to help end the California energy crisis.
  • Assisted PSEG Energy Resources & Trade with the resolution of a matter that could have resulted in a $100m+ enforcement relating to its electricity offers into the mid-Atlantic-based PJM energy market.
  • Acted for Edison Electric Institute in allegations by the FERC’s Office of Enforcement that Powhatan Energy Fund had manipulated the energy market with a trader the fund had contracted.

Steptoe & Johnson LLP

Steptoe & Johnson LLP has a key track record in big-ticket power cases. It continues to represent many of the largest electric utility companies in the country, acting in major FERC enforcement cases and in federal court proceedings; the firm has also impressed in class actions, including those involving the manipulation of electric power and natural gas markets. It remains noted for its antitrust expertise in relation to government investigations into the power industry, and has experienced an uptick in antitrust cases that are linked to environmental activism; it is also at the forefront of return on equity (ROE) rate disputes. Richard Roberts leads the energy group and has expertise in energy cases before FERC and the federal courts; and David Raskin is highly experienced in big ticket disputes. Charles Mills and Steven Ross are also highly rated, while Karen Bruni is an emerging talent at associate level. San Francisco and New York-based trial lawyer Laurie Edelstein has an excellent record in energy cases. 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

Key clients

Southern California Edison

System Energy Resources

Eversource Energy

Arizona Public Service Company

Dominion Energy Services

New England Rate Payers

Exelon Generation Corporation

Tucson Electric Power

Edison Electric Institute

Commonwealth Edison Company

American Electric Power

Public Service Electric and Gas

Work highlights

  • Acted for System Energy Resources in a complaint alleging that it improperly charged its customers for the costs of renewing a sale/leaseback arrangement for the Grand Gulf Nuclear Generating Station.
  • Represented  New England Ratepayers Association in prosecuting a jurisdictional challenge at FERC relating to efforts by New Hampshire to subsidize wood-burning power plants.
  • Acted for Southern California Edison in a case at FERC to determine the impact of the utility’s potential liability for California wildfires.
  • Defended Southern California Edison against a lawsuit brought by the City of Torrance challenging its implementation of a municipal ordinance and collection of utility user tax.
  • Defended Pacific Gas and Electric Company in a multi-plaintiff lawsuit arising out of a fire at the Ghost Ship warehouse in Oakland, California.

Bracewell LLP

Bracewell LLP's connections to the energy sector provide it with the basis for a flourishing conventional power litigation practice. The group represents some of the largest power producers as defendants and plaintiffs in the country and worldwide, regularly handles cases before the federal courts and FERC, and is highly experienced in cross-border disputes. Chair of the firm-wide litigation group Stephen Crain has a major focus on energy disputes, representing developers and producers, commodity traders and suppliers to the energy industry. Bradley Benoit is another energy disputes expert with notable experience in defending shareholder class actions and derivatives cases. Washington DC-based Catherine McCarthy chairs the energy regulatory group and often represents energy clients in contentious matters before FERC and other regulatory bodies. Austin partner Deanna King co-heads the energy litigation practice with Andrew Zeve. Named individuals are based in Houston unless stated otherwise.

Practice head(s):

Stephen Crain; Deanna King; Andrew Zeve

Other key lawyers:

Paul Wight; Christopher Dodson; Bradley Benoit; Catherine McCarthy

Testimonials

Bradley Benoit is a really good lawyer and represents clients really well.

Key clients

Powerex

Central Maine Power Company

Shell Energy North America (US)

Southern Copper

Hydro One

Great Plains Energy

Work highlights

  • Represented Central Maine Power Company and The United Illuminating Company in a series of complaints by the State of New England and certain other entities regarding the return on equity (ROE) recovered through transmission rates.
  • Acted for Shell Energy North America (US) in cases before FERC involving long-term contracts.
  • Ongoing representation of transmission and distribution utilities, generation owners, wholesale power marketers and retail marketers in matters before FERC and the Commodity Futures Trading Commission.
  • Acted for Southern Copper in a case concerning the transfer of ownership of a subsidiary that owns two power plants.
  • Represented Southern Copper in a derivative lawsuit concerning certain construction contracts, contracts for the purchase and sale of minerals, and transportation contracts.

Baker Botts L.L.P.

Baker Botts L.L.P.'s energy credentials have provided it with the platform to create a highly regarded conventional power disputes practice. With a background in representing major utilities, the group has an extensive client base of generators, processors, transporters, distributors and marketers of all forms of electrical and gas power. Bill Kroger leads the practice, which includes John Anaipakos, who is a top trial lawyer and most notably counts CenterPoint Energy as a key client. Kevin Jacobs is also at the forefront of energy disputes including jury trials; George Fibbe joined the firm from the Department of Energy, and Washington DC-based Jeff Wood arrived from the Department of Justice. Continuing the expansion of the group, the firm also hired a substantial nine-partner environmental and workplace safety team from Katten in 2019, which provides a significant boost to its credentials in the Bay Area, Washington DC and Houston. The practice is now able to leverage considerable bench strength in core regulatory matters, litigation and environmental concerns. 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

Brazos Electric Power Cooperative

CenterPoint Energy

Edison Electric Institute

El Paso Electric Company

NRG Energy

Work highlights

  • Acted for Edison Electric Institute as amicus curiae in an Eighth Circuit appeal filed by LSP Transmission challenging the constitutionality of Minnesota’s right of first refusal law.  
  • Defended NRG Energy in breach of contract litigation brought by Commonwealth Edison seeking more than $60m in damages.
  • Defended Brazos Electric Cooperative in a breach of contract, trespass, and negligence case filed by the Peeler family in Atascosa County.
  • Acted for CenterPoint Energy on the preparation and filing of a certificate of convenience and necessity application at the Public Utility Commission of Texas for an approval to construct a 54 to 85-mile double-circuit high-voltage double-circuit transmission line.

Jenner & Block LLP

Jenner & Block LLP has an established conventional power litigation practice, operating primarily from its Washington DC and Chicago offices. Chicago's Randy Mehrberg has had a pivotal role in building the firm's energy practice, of which litigation is a primary component. Team members include former in-house lawyers at major energy corporates, government agencies and regulators. The group represents some of the biggest electricity and gas utilities in the industry, and covers cases relating to zero emissions credit programs and defends challenges to big-ticket mergers; it has also earned particular recognition for disputes relating to federal and state jurisdiction. Suedeen Kelly is another experienced figure in major cases including those before FERC, while Matthew Price is noted for big-ticket disputes and frequently acts for major utilities companies. David DeBruin is also highly rated. All named partners are based in Washington DC unless stated otherwise. Max Minzner departed to an in-house position at Arcadia Power.

Practice head(s):

Randy Mehrberg; Suedeen Kelly

Other key lawyers:

Glenn Rippie; Matthew Price; David DeBruin

Testimonials

The group is exceptional in large complex litigation. Their ability, hard work and results are unparalleled.

David DeBruin is the best litigatorHe is one of the smartest, thoughtful, practical and hardworking litigators I have ever had the privilege of working with.

Key clients

Exelon Corporation

Pacific Gas & Electric Company

Panda Power Funds

Modern Energy

DC Energy

Edison Electric Institute

Advanced Energy Economy

Public Service Enterprise Group

Midcontinent Independent System Operator

Morongo Transportation

Protect Our Power

Work highlights

  • Represented Exelon in proceedings before FERC concerning proposed revisions to market rules to accommodate state initiatives to promote certain types of power plants, in particular nuclear plants.
  • Succeeded in earning two appellate victories for Exelon, upholding the dismissal of a lawsuit challenging zero emissions credit programs.
  • Acted as lead and trial counsel for Commonwealth Edison Company as it sought Illinois Commerce Commission approval of financial and operational matters relating to its proposed investment in and operation of an advanced-technology community-based microgrid in the City of Chicago.
  • Acted for Commonwealth Edison Company in opposing a certificate of public convenience on the grounds that it will increase costs and rates and is not in the public interest.
  • Operated as sole regulatory counsel to Nicor Gas in a petition with the Illinois Commerce Commission, seeking eminent domain authority to perform work under three rail road crossings along one of its natural gas transmission lines.

Dentons

Dentons continues to earn recognition for its technology-centric practice, including its work handling aspects of powering smart cities and other urbanization initiatives. The team also impresses in RTO market disputes and cases before FERC. The group has a high-profile client base of major energy companies, utilities and municipalities, among others. Clint Vince is based in Washington DC and leads the US energy practice and has an extensive record in major power cases.

Practice head(s):

Clint Vince

Other key lawyers:

Emma Hand; Peter Thieman

Key clients

City Council of the City of New Orleans

CPS Energy

Anterix Rayburn County Electric Cooperative

Tri-State Generation & Transmission Association

Colorado Springs Utilities

Kansas City Power & Light Co

Municipal Electric Utility Association of New York

Work highlights

  • Acted for the City Council of the City of New Orleans in its evaluation of and ruling on the $230m proposal by Entergy New Orleans to build a natural-gas fired power plant, including the administrative litigation regarding the plant proposal.
  • Represented Tenaska Marketing Ventures as an intervener in various proceedings against Southern California Gas Company and San Diego Gas and Electric Company before the California Public Utilities Commission.
  • Acted for Rayburn Country Electric Cooperative in a dispute before FERC relating to SPP’s attempt to impose exit fees on the movement of Rayburn’s load from the SPP grid to the ERCOT grid.

K&L Gates

K&L Gates has a broad practice drawing on senior expertise from multiple offices across the US. The team has an established track record in litigation linked to new rule making and regulatory programs, including seeking authorisations from FERC. Team members are also recognised for their experience in wider FERC and PJM Interconnection matters. Based in Washington DC, Donald Kaplan has in-depth experience before FERC, while DC-based practice group coordinator William Keyser is another key name; Seattle-based individuals Elizabeth Thomas and Kari Vander Stoep are also singled out.

Practice head(s):

William Keyser

Other key lawyers:

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

Testimonials

Exceptional knowledge regarding the relevant precedents and practices of the regulatory authorities we appeared in front of. Excellent patient manner for dealing with the regulators, both staff and commissioners.’

K&L Gates’ practice is uniquely thoughtful and client-centric, appropriately tailored to the client’s needs for each matter. The team is highly responsive, consummately professional, and business-savvy. The attorneys consistently exemplify the highest level of legal service.

Don Kaplan and Will Keyser are at the top of their field as FERC lawyers. They are unparalleled in their knowledge of PJM and its governance and underlying agreements. Their long history with my company gives them the background and perspective they need to begin working on important matters immediately.

Don Kaplan is a highly experience FERC lawyer, PJM expert, and longtime strategic partner.

Will Keyser provides hands on leadership at FERC, and a deep understanding of rate making and regulatory litigation.

Will Keyser is unparalleled in the energy bar. Will demonstrates keen business acumen, his adept legal analysis leaves no stone unturned. He is a star in the field with a sterling reputation.

Liz Thomas is always available to provide useful and practical advice, and deliver alternatives while outlining options and risks. She is an excellent presenter and very easy to understand. She has a very calm demeanour which makes dealing with her so easy.

Liz Thomas and Kari Vander Stoep possess terrific knowledge of the area and it matters that they know all the cases and precedents and how they can help, or hurt, the application.

Key clients

Edison Electric Institute

PJM Transmission Owners

PPL Electric Utilities

Microsoft

Hydro One

American Petroleum Institute

Direct Energy

ENGIE Gas

Work highlights

  • Represented Edison Electric Institute in responding to an order by FERC denying cost recovery for excess deferred income tax amounts by Baltimore Gas and Electric Company, one of its members.
  • Acted for the PJM Interconnection transmission owners in their successful response to FERC’s order to show cause relating to a transmission planning process.
  • Represented PPL Electric Utilities Corporation in proposing changes to its transmission formula rate to address the proposed effects of the Tax Cuts and Jobs Act of 2017.
  • Assisted Microsoft with its initiative to purchase 100% carbon-free and renewable energy to meet the needs of its Redmond, Washington campus; this included a contested case proceeding at the Washington Utilities and Transportation Commission.
  • Acted for American Petroleum Institute and Direct Energy in a proceeding initiated by PJM Interconnection to change the rules governing its capacity market to address the impact of state subsidies on market dynamics.

Morgan, Lewis & Bockius LLP

Morgan, Lewis & Bockius LLP has demonstrated a commitment to the conventional power sector, with strong expertise in transactions, regulatory work, environmental issues and litigation. The core team of litigators has a notable track record in big-ticket disputes, including proceedings before FERC and class actions. The group has also impressed in a series of major environmental cases on behalf of energy clients. Washington DC's Brad Fagg co-heads the energy litigation practice and focuses on the energy and federal procurement industries. Los Angeles-based James Dragna leads the environmental team and is a key figure in energy-sector disputes, while John McGahren in Princeton is deputy chair of the firm's global environmental practice.

Practice head(s):

Brad Fagg; James Dragna; John McGahren

Other key lawyers:

John Gisleson; Stephen Spina

Key clients

Xcel Energy

Southern California Gas Company

Entergy

National Grid

Southern California Edison

TECO Energy

NorthWestern Energy

Pinnacle West Capital Corporation

Noble Energy

Big Level Wind

Anadarko Petroleum Corporation

Mitsui E&P USA

Work highlights

  • Acted for Duke Energy in a motion to dismiss a complaint seeking the return of more than $110m in funds relating to the construction of a 1,640MW gas-fired power plant in Citrus County, Florida.
  • Represented AES Corporation in a filing to FERC for recovering the actual marginal fuel-related costs and other generation-related costs incurred by AES Southland Resources from July 2018 to August 2018.
  • Acted for Southern California Gas Company in multiple proceedings related to the 2015 natural gas leak at the Aliso Canyon storage facility.
  • Represented Exelon Corporation and Cotter Corporation in a number of multi-defendant toxic tort lawsuits involving more than 500 plaintiffs in St. Louis, Missouri.
  • Acted for Exelon and Cotter in ongoing remedial actions and advocacy at the West Lake Landfill Superfund Site, portions of which contain low-level nuclear wastes left over from the Manhattan Project operations.

Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP has demonstrated a commitment to the conventional power sector, with key experience in transactional work, regulatory matters and litigation; it also has an notably extensive track record in enforcement defense work. John Estes leads the energy regulation and litigation group, and has substantial experience in FERC enforcement cases involving market manipulation allegations. Of counsel Mike Naeve, who is a former FERC commissioner, is also noted for enforcement proceedings, electric transmission cases and wholesale rate proceedings. Both are based in Washington DC.

Practice head(s):

John Estes

Other key lawyers:

Donna Byrne; Will Barksdale; Mike Naeve

Work highlights

  • Represented one of the largest US grid owner and operators and energy services providers in a non-public FERC enforcement investigation of potential alleged violations of NERC reliability standards and the potential alleged connection with a fire.
  • Acted for NextEra Desert Center Blythe in securing a DC Circuit Court remand of a FERC order dismissing its complaint arguing that the tariff of the California Independent System Operator (ISO) required it to award NextEra the congestion revenue rights created by NextEra’s $32m payment for improvements in the electric transmission system controlled by the California ISO.
  • Assisted NextEra with obtaining a declaratory order from FERC in which FERC clarified that its approval must be secured before PG&E can be relieved of its obligations under wholesale electricity contracts that are rejected in bankruptcy.
  • Represented Barclays Bank in a putative antitrust class action brought by Merced Irrigation District in the Southern District of New York.
  • Assisted Wisconsin Electric Company with the preparation of a filing at FERC to permit it to recover in wholesale rates a return of and a return on its remaining rate base investment in the recently retired Pleasant Prairie Power Plant.