Background - Practices (Details)

Energy Litigation

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Crowell & Moring’s Chambers-ranked Energy Practice has been a destination practice for competitive power producers, traditional utilities and developers since the beginning of the competitive power industry in the 1980s. The advent of competition in the energy world has resulted in a steady stream of litigation for thirty years, and our litigators and trial lawyers have been on the front lines of that litigation from the outset. Crowell combines seasoned courtroom advocates with energy subject matter specialists to bring and defend disputes before FERC, state and federal courts (including the U.S. Supreme Court), public utility commissions, and in arbitration. 

Crowell & Moring is a go-to firm for high-stakes administrative litigation, interconnection disputes, and regulatory litigation under the Federal Power Act, Natural Gas Act, Public Utility Regulatory Policies Act and state law. The Energy Practice litigates a broad spectrum of issues and in all forums, including:

  • Cost allocation and rate proceedings before state and federal regulatory bodies.
  • Administrative and appellate matters involving market design formation and revision.
  • Market manipulation litigation and all manner of enforcement proceedings.
  • A recent, groundbreaking U.S. Supreme Court litigation about the limits of federal and state authority over electric power generators. 

Crowell & Moring’s Energy Litigation practice is equally versed in complex commercial and tort energy disputes, including class action litigation, power purchase agreement and other contract disputes, construction litigation and arbitration, data breach disputes, antitrust actions, bankruptcy proceedings, takings claims, insurance coverage, and stockholder litigation.

Crowell & Moring is renowned for litigation, having been named “Washington Litigation Department of the Year” by The National Law Journal/Legal Times. With more than 100 lawyers with significant federal and state litigation experience, and with over 100 attorneys formerly employed in federal and state government, we have distinctive perspective and first-hand knowledge of how regulation works, how the regulatory and commercial spheres collide (often resulting in litigation), and how to achieve our clients’ objectives through dispute resolution in the ever-evolving power sector.

Our Capabilities

We are a destination practice repeatedly selected by competitive power producers and traditional utilities to handle seemingly intractable disputes. We are routinely lead counsel in representing generators and transmission service providers both in offensive and defensive litigation, delivering results for our clients.

Our litigation capabilities are exemplified by our representation of Competitive Power Ventures (CPV) in the seminal Supreme Court case, Hughes v. Talen Energy Marketing (2016). Our multi-disciplinary energy practice was on full display -- representing CPV before the Maryland Public Service Commission (MPSC), successfully defending our victory before the MPSC in state appeals court, in defending FERC-approved capacity market rules that were developed in connection with this dispute, in two complex federal district court trials, on two appeals of those district court cases to the Third and Fourth Circuit Courts of Appeals, and before the U.S. Supreme Court. We also recently prevailed in two separate AAA arbitrations over energy contracts, both featuring full evidentiary hearings, each valued in the hundreds of millions of dollars. Complex and multi-faceted litigation is our stock-in-trade, and our decades of experience position us well to wage multi-forum battles of all types involving FERC, the states, and industry stakeholders across the energy supply chain.

Chambers USA has consistently ranked our energy attorneys among the best in the country, describing us, in our clients’ words, as “very sharp”, “effective litigator[s]”, “very creative, industry savvy, and strategically minded,” “tak[ing] the view that ‘an ounce of prevention is worth a pound of cure,'" and “look[ing] at things from our point of view and provid[ing] solutions."

Commercial Litigation & Trial

Resolving a case prior to trial is often ideal. But it is likewise true that the best way to achieve favorable outcomes is to present from the outset the ability and resolve to take cases all the way. Crowell & Moring’s Energy Practice has litigated a broad range of cases before judges, juries, regulators, and arbitrators, in both bet-the-company and ordinary-course settings.

Highlights include:

  • Representation of a group of electric generator clients before FERC in the proceeding leading to the promulgation of FERC’s order restructuring pipeline services. We also served as lead counsel for electric generators in the appeal of the FERC order to the U.S. Court of Appeals for the District of Columbia DC Circuit.
  • Representation of a cogeneration project in the Virginia Supreme Court against Virginia Electric and Power Company in connection with a contract dispute between the utility and the electric generator involving the applicability of the force majeure clause in the power purchase agreement.
  • Representation of a client in state court over the course of one-month in bet-the-company litigation on behalf of a company that develops financial products for energy merchants and commodity trading firms. We subsequently obtained significant damages for our client’s affiliate in related litigation.
  • Representation of a leading turbine manufacturer in tort and commercial litigation against a leading Florida utility over a turbine facture resulting in a plant shutdown.

ARBITRATION

In an increasingly competitive energy industry, it is imperative to have a team of experienced arbitration litigators. We have handled all phases of the most complex, demanding and risky energy disputes. Our experience in the Energy sector allows us to reach effective and timely solutions to complex energy disputes.

Highlights include:

  • Representation of a natural-gas fired facility in a multi-hundred million dollar power purchase agreement dispute in AAA arbitration with a large California utility.
  • Representation of a leading supplier of rail-based freight transportation in a multi-hundred million dollar dispute with a large utility before a three-judge arbitral panel arising out of the utility’s attempt to terminate a coal transportation agreement by invoking force majeure.

Administrative Litigation

Our group has successfully handled some of the most significant and complex administrative litigation in energy history. That experience includes participation in most of the major rulemakings and adjudications at FERC since the dawn of the competitive era, together with a variety of administrative litigation and appeals before many of the state regulatory commissions. We pride ourselves on shepherding our clients through the administrative process and helping them achieve their strategic objectives in an efficient, cost effective manner.

Highlights include:

  • Representation of energy generator in administrative litigation before FERC involving interconnection and capacity supply obligation disputes related to a planned 1000 MW+ natural gas generation facility in New England, and counsel regarding related state permit proceedings.
  • Representation of a major energy company’s storage development in challenging PJM’s tariff and compensation formula for innovative battery technology.
  • Representation of a wind generator before the FERC and Idaho Public Utilities Commission to enforce the wind company’s rights to secure a power purchase agreement under PURPA, convincing FERC, for the first time, to initiate its own enforcement action to enforce PURPA.
  • Representation of an energy company in investigations, show cause proceedings and litigation concerning the California energy crisis securing for client a release of all claims arising out of the crisis, an achievement made more notable by the large penalties incurred by other utilities and power marketers.
  • Resolution of multiple claims brought by the Department of Energy (DOE) against manufacturing clients alleging energy conservation standards violations under the Energy Policy Conservation Act (EPCA). This was the first time since the statute’s enactment thirty years ago that any litigant successfully litigated the DOE’s allegations of misconduct under EPCA.

Appeals

Increasingly, many Energy issues such as traditional rate cases, proposed market design changes, and allegations of non-compliance with market rules are being appealed. Planning for potential appeals must play an integral role in any litigation effort, from the very outset and at every subsequent phase. Actions taken during the pleading, discovery, motion practice, and trial stages can have a significant effect on the likelihood of success at the appellate level, and appellate decisions typically have broad significance that extends well beyond the results of a jury trial or administrative hearing. Under these high-pressure circumstances, clients require legal representation with the experience and strength necessary to take such cases to circuit courts around the country, to the U.S. Supreme Court, and to victory.

Highlights include:

  • Representation of power generator in a groundbreaking U.S. Supreme Court case that dealt with the Constitutional division of authority between the federal and state governments in an area that Congress has largely not addressed since the 1930s. The Court found that the Maryland and New Jersey programs at issue in the case were preempted under the particular circumstances of the case, but this watershed case, one of the most often-cited decisions of the past few years, has already spawned numerous related lawsuits and administrative proceedings, with major policy implications for energy and environmental policy
  • Amicus participation in matters before the U.S. Supreme Court and multiple federal circuits.

Enforcement and Government Investigations

From FERC Office of Enforcement investigations to DOE enforcement under EPCA to criminal inquiries, our team navigates clients through all phases of government enforcement and investigatory proceedings. Our lawyers include several former agency officials, Department of Justice (DOJ) and Securities and Exchange Commission (SEC) attorneys, and long-time energy practitioners, with first-hand experience defending companies and individuals accused of civil or criminal wrongdoing. Crowell’s energy litigation team handles all components of the enforcement process, performing internal investigations, negotiating with the government to avoid liability, litigating cases when necessary, and providing targeted compliance counseling to avert such investigations and enforcement proceedings in advance.

Highlights include:

  • Representation of a major energy company in a confidential DOJ investigation into alleged public corruption conducted out of the Southern District of New York. The investigation focused on potential allegations of bribery of a high-ranking state public official in connection with development of a power plant.
  • Representation of power generator in a FERC Office of Enforcement investigation in connection with the company’s power generation subsidiaries’ participation in New England regional electricity markets and alleged violations of the Federal Power Act’s anti-manipulation rule. 
  • Representation of multiple clients in non-public FERC Office of Enforcement investigations into alleged market manipulation.
  • Representation of client in conducting multiple Federal Power Act internal compliance investigations after the discovery of a failure to make required filings and have prepared self-reports to FERC. In a significant number of these cases, the matters were closed without further action.
  • Representation of an energy company in connection with an investigation of allegations of intentional failure of a generating unit to respond to dispatch instructions. The inquiry culminated in an extremely favorable disposition for our client.
  • Representation of several clients in a market-wide FERC Office of Enforcement investigation of supplemental energy bidding practices in the California Independent System Operator (ISO) market, resulting in no action.
  • Representation of former Executive Vice President for Investor Relations at Enron in criminal, SEC and civil proceedings; negotiated dispositions with the DOJ and SEC that substantially limited client's exposure, and guided client through central cooperation role in the related prosecutions of Kenneth Lay and Jeffrey Skilling.