Background - Practices (Details)
Energy Regulatory
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Crowell & Moring excels at guiding energy clients through a complex and constantly changing regulatory environment. The firm’s energy attorneys have been consistently recognized by Chambers USA: America’s Leading Lawyers for Business, which recently described them as “one of the top choices for Independent Power Producers (IPPs) looking for FERC counsel.” Citing “excellent strategic planning,” Chambers USA praises the firm’s energy attorneys because “they understand how the regulatory side affects investment.” Electric, natural gas, LNG, and oil companies rely on the firm’s energy attorneys for support in myriad regulatory issues arising in public utility development and operations, electricity markets, natural gas transportation and storage, M&A and debt and equity financing transactions and related due diligence. 

The firm helps these clients navigate the Federal Energy Regulatory Commission (FERC) on all issues arising under the United States statutes that are enforced by FERC, including the Federal Power Act (FPA), the Public Utility Holding Company Act of 2005 (PUHCA), the Natural Gas Act (NGA), the Public Utility Regulatory Policies Act (PURPA), the Natural Gas Policy Act (NGPA), and the Interstate Commerce Act (ICA). We also appear regularly before state regulatory commissions, litigate successfully in federal and state trial and appellate courts, and address complex regulatory issues at every level in order to meet our clients’ business objectives.

Crowell & Moring provides FERC regulatory services in the following areas:

Electric Natural Gas, LNG, and Oil
Market-Based Rate Authority NGA Certificates and Blanket Certificates
FPA § 205 Authorization Pipeline Abandonment
FPA § 203 Approvals FERC Natural Gas Tariffs
Exempt Wholesale Generator Status NGA § 7(f) Proceedings
Qualifying Facility Status NGA § 4 Rate Proceedings
Reactive Power Compensation Negotiated and Discounted Rates
Electric Quarterly Reports Capacity Release
Interlocking Positions Natural Gas Service Agreements
Electricity Storage NGA § 5 Complaint Proceedings
Ancillary Services Natural Gas Storage
Electricity Markets LNG Projects
Transmission Planning and Operations Natural Gas Company Reporting Requirements
Public Utility Reporting Requirements Oil Pipeline Tariffs and Rate Proceedings


Representative Engagements:

Electric

  • FPA § 205 Approvals. Represented generator and marketer clients, including major competitive power developers, in obtaining and maintaining FPA § 205 authorizations for (i) market-based rates, including the preparation or review of market power studies; (ii) various types of jurisdictional services, such as shared facilities arrangements, joint ownership agreements, open access transmission services, and waivers from FERC’s open access transmission requirements; and (iii) reactive power compensation.
  • FPA § 203 Approvals. Represented clients in obtaining FERC authorization under FPA § 203 for the purchase and sale of FERC-jurisdictional facilities, including upstream changes in control, passive investments, and direct sales of public utility facilities, such as (i) Joliet Battery Storage LLC and West Chicago Battery Storage LLC in the upstream transfer of passive ownership interests to Prudential Insurance Company of America and The Lincoln National Life Insurance Company; (ii) CPV Towantic in the indirect investment of Ullico Infrastructure Master Fund, L.P. in CPV Towantic; and (iii) Dogwood Energy in the sale of undivided interests the Dogwood Energy Facility to four municipalities. 
  • Red Flag Training. Provide training on FERC-related issues, such as training to in-house transactional teams on identifying regulatory red flags when considering investments in U.S. public utilities, and in-house asset management teams on FERC regulation of U.S. public utilities.
  • Formal Opinion Letters. Provided formal opinion letters to lenders, tax equity investors, buyers, or other parties, in connection with debt and equity financings of generation projects with respect to matters arising under the FPA and PUHCA.
  • Transaction Regulatory Support. Represented various clients in structuring transactions to comply with, mitigate the effect of, or qualify for exemptions from federal and state utility regulation, including (i) advising on the regulatory issues implicated by the direct or indirect ownership, operation, purchase, sale, or other transfer of energy companies and facilities; (ii) conducting due diligence with respect to the target company’s status under and compliance with FPA, PUHCA, NGA, and the NERC reliability standards in connection with transactions for the direct or indirect acquisition of energy assets—including natural gas-fired, biomass, solar and wind-powered, and hydroelectric generation facilities; (iii) ensuring that transaction documents adequately address FERC-related issues; and (iv) obtaining the governmental approvals, exemptions, and other actions necessary to implement transactions or to construct, own, and operate facilities under the FPA, PUHCA, NGA, and state utility and siting laws.
  • Regulatory Support in Commercial Agreements. Counseled clients on the FPA, PUHCA, PURPA, and NGA implications of providing O&M or asset management services.
  • Regulatory Support for Storage Development. Provided regulatory support to energy storage development company in connection with the financing and equity agreements of two battery storage projects, and the provision of legal opinions to lenders and tax equity investors regarding federal energy regulatory matters, as well as FERC filings needed to obtain FERC authorizations of the transactions and market-based rate authority.
  • Technical Conference on Storage. Counseled a major independent storage developer in connection with participation in FERC technical conference on storage development.

Natural Gas, LNG, Oil 

  • Kinetica Partners. Represented Kinetica Partners, since 2010, in all FERC regulatory aspects and ongoing commercial negotiations as they acquired and operate two natural gas pipeline companies with over 2000 miles of natural gas gathering and transportation pipelines in Louisiana and the Gulf of Mexico.
  • East Tennessee Group. Represented association of municipal utilities in Tennessee since 1990 in all FERC regulatory aspects and ongoing commercial negotiations related to their natural gas service.
  • Natural Gas Infrastructure. Represented a gas-fired power plant in connection with arranging the necessary infrastructure for delivery of natural gas from an interstate pipeline, and construction of a pipeline lateral while minimizing delay and federal regulatory oversight, including issues concerning the scope and prudence of the assessed costs of the lateral and the appropriate negotiated transportation rate. 
  • CPUC Proceeding on Riverside Pipeline. Represented Caterpillar (Solar Turbines) in seeking rate relief from the California Public Utilities Commission to offset rate and operational impacts of San Diego Gas and Electric's proposed Riverside Pipeline natural gas transmission project. 
  • Capacity Release. Advised generator and marketer clients on all aspects of FERC’s capacity release rules, including the buy-sell prohibition and shipper-must-have-title rules; developed metrics by which to flag potential buy-sells and advised client when flags were triggered; structured asset management agreements to qualify for exemptions from the capacity release rules, including competitive bidding requirement and tying prohibition.
  • NGA § 7(f) Certificates. Counseled on client’s duty to obtain its own NGA § 7(f) certificate for service it provides across state lines; litigated contested applications on behalf of affected utilities in the other state; briefed issues related to applicability to municipalities. 
  • LNG Projects. Advised on LNG projects, including Department of Energy (DOE) permitting, Deepwater Ports under the jurisdiction of the U.S. Coast Guard (MARAD), FERC proceedings to align natural gas transportation services to supply them, and issues of federal regulatory jurisdiction.