Background - Practices (Details)
Energy Litigation
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Crowell & Moring’s attorneys have considerable experience in federal and state administrative and judicial energy litigation. The Federal Energy Regulatory Commission (FERC) and state commissions increasingly rely on administrative litigation and evidentiary hearings to resolve a broad spectrum of energy industry issues, including traditional rate cases, proposed market design changes, and allegations of non-compliance with market rules. And increasingly, many of these issues are being appealed or are the subject of collateral litigation in the state and federal court systems.

Crowell & Moring attorneys have represented or currently represent parties to every kind of energy litigation, including before FERC, appellate courts, other judicial forums, mediation, and arbitration. Our attorneys also have represented clients in energy litigation before numerous state agencies, including matters in Arizona, Arkansas, Connecticut, Idaho, Louisiana, Maryland, New Jersey, Oklahoma, Rhode Island, Texas, and West Virginia. In addition to complex regulatory litigation before agencies and in trial and appellate courts, our energy clients can receive litigation support in antitrust actions, bankruptcy proceedings, class action suits, construction litigation and arbitration, contract disputes, environmental matters, insurance coverage, securities claims, stockholder litigation, and takings claims.

We combine the experience in these practices with the energy practice to help our clients resolve complex business disputes, and to address and resolve claims against both private-sector and government entities.

Representative Engagements 

  • Talen Energy v. Hughes (U.S. Supreme Court, 2016).  Represented Competitive Power Ventures 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 year, has already spawned numerous related lawsuits and administrative proceedings, with major policy implications for energy and environmental policy.
  • Murphy Flat Mesa, LLC, Murphy Flat Energy, LLC, and Murphy Flat Wind, LLC, Idaho Public Utilities Commission Case Nos. IPC-E-1056, IPC-E-1057, and IPC-E-1058. Represented Murphy Flat Power before the Federal Energy Regulatory Commission (FERC), the Idaho Public Utilities Commission, and other judicial forums in enforcing its rights under the Public Utility Regulatory Policies Act (PURPA) to secure a power purchase agreement with Idaho Power Company for the Murphy Flats wind generation projects, resulting in FERC, for the first time, initiating its own enforcement action to enforce PURPA. Development of these wind projects was impaired by the failure of the Idaho Public Utilities Commission and Idaho Power Company to implement their PURPA obligations.
  • Duke Energy Trading & Marketing, LLC, Docket Nos. EL03-152-000, IN03-10-000. Represented Duke Energy Trading and Marketing, LLC in investigation and show cause proceedings concerning the California energy markets. The "California Energy Crisis" of 2000-2001 spawned a wide array of regulatory, political, and litigation responses, and the firm represented Duke Energy in every forum. At FERC, we defended Duke Energy in proceedings, involving more than 100 parties, designed to provide refunds to California electricity purchasers and in proceedings opened to investigate charges of "gaming" behavior in the western electric energy markets. The firm achieved a "global settlement" of all these proceedings to which the California government agencies, the California investor-owned utilities, and FERC were all parties. The firm also represented Duke Energy before a variety of western state government agencies that exercise independent law enforcement authority and before a select investigating committee empaneled by the California State Senate. The California Energy Crisis also generated more than two dozen private lawsuits on behalf of electricity consumers in western states. The firm's attorneys acted as co-lead counsel for the power generators and marketers named in these cases, and steered them to successful results through the Federal District Court, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court. Collectively, these investigations, suits, and proceedings involved every conceivable economic, scientific, and regulatory aspect of the western energy markets.
  • Whether New Generating Facilities Are Needed to Meet Long-Term Demand for Standard Offer Service, Maryland Public Service Commission, Case No. 9214. Represented CPV Maryland in a proceeding in which the Maryland Public Service Commission required Maryland's regulated electric distribution companies to issue requests for proposals seeking to enter into long-term contracts to promote the development of up to 1,500 MW of natural gas-fired generation.
  • PPL Energy Plus, LLC et al. v. Lee A. Solomon et al., Civil Action No. 2:11-cv-00745-PSG-ES. Represented CPV Power Development in New Jersey federal district court case involving a CPV subsidiary that was a successful bidder in a solicitation sponsored by the State of New Jersey for new, clean, gas-fired electric power plants. Plaintiffs, a coalition of existing generators and New Jersey utilities, sued the New Jersey Board of Public Utilities to stop the solicitation from going forward; claiming that the statute that created the New Jersey solicitation violates the Supremacy and Commerce Clauses of the U.S. Constitution.
  • PPL EnergyPlus, LLC v. Nazarian, Civil Action No. MJG-12-1286 (D. Md.). Represented CPV Maryland in federal district court litigation challenging the constitutionality of a Maryland competitive procurement for new, combined–cycle, natural gas-fired power plants on grounds of federal preemption and violation of the dormant Commerce Clause.