Robert H. Loeffler is a senior partner in the Washington, D.C. office of Morrison & Foerster. He is broadly experienced in resolving complex government-related issues and administrative litigation, with special emphasis on energy regulatory law. He also has substantial experience in intellectual property law.

Energy

Mr. Loeffler has practiced before the Federal Energy Regulatory Commission (FERC) for over 30 years, representing clients on a variety of novel federal electric, natural gas, royalty, and oil transportation issues, including some of the very largest proceedings conducted before the FERC (or its predecessor, the Federal Power Commission). He has both spoken and written on federal energy issues. He has also been counsel to both private and public parties on energy issues. He has appeared before the public utilities commissions of Alaska, California, and New Hampshire, and briefed or argued cases before the United States Supreme Court, four Circuit Courts of Appeals, the Supreme Courts of New Hampshire and New Mexico, and the trial courts of Alaska, District of Columbia, Illinois, New Mexico, and Washington.

Current Assignment

Mr. Loeffler is lead counsel with respect to the permitting and development of the Liberty LNG project, a project that consists of a deepwater port, undersea pipeline, and interstate pipeline in the New Jersey area.

State of Alaska

For more than 30 years, Mr. Loeffler has served as the State of Alaska’s lead counsel on federal energy regulatory matters. He was lead counsel to the Murkowski administration in a two-year negotiation of a 457-page fiscal contract between the State of Alaska and ExxonMobil, BP, and ConocoPhillips for the development of the proposed $ 25 to $ 30 billion Alaska natural gas pipeline. The contract contemplated that the State would own and invest in 20% of the pipeline. The contract would have not only provided fiscal certainty on taxes and royalties to developers of the pipeline, but also encompassed labor, regulatory and many other government-industry issues. He was a principal adviser to the State on the British Petroleum-Atlantic Richfield and Mobil-Exxon mergers and served as the State’s counsel in the FTC’s court challenge to the BP-ARCO merger. He successfully argued for allowing the State to intervene as a party in favor of the merger, a first in antitrust law. He directed the analysis of the antitrust issues with respect to North Slope pipeline and leasing issues, prepared the State’s litigation case, and represented it in the Federal Trade Commission’s investigation of the antitrust issues. He was deeply involved in the litigation and settlement proceedings concerning the tariffs of the Trans Alaska Pipeline System (TAPS), the $9 billion, over 800 mile long pipeline that transports as much as 2 billion barrels per day of crude oil from the North Slope of Alaska to a deep water port in Valdez, Alaska. He was lead counsel for Phase I of the TAPS remand. He then led a team of lawyers and economists that designed a novel rate-setting methodology, the TAPS settlement methodology (TSM), as the basis for settling the litigation warfare over TAPS rates. The TSM established a mechanism for setting rates for TAPS for its entire life (1977-2011). After the TSM was designed, he then led the team that negotiated the settlement with each of the major U.S. oil companies involved in TAPS, documented the settlement, and secured its regulatory approval from the FERC. The TAPS settlement has increased State revenues by nearly $6 billion to date.

During the 1990s, Mr. Loeffler was counsel to the State in the second generation of FERC cases involving challenges to hundreds of millions of dollars of imprudent costs from corrosion, oil spill, and non-compliance with permitting requirements. In the corrosion matter, he was the State’s counsel in the first alternative dispute resolution proceeding at the FERC, which led to an innovative cooperative program for identifying and remedying the causes of massive corrosion on TAPS. The Center for Public Resources published the ADR agreement in the corrosion case as a model for utility ADR.

In the TAPS EVOS case, he defeated an effort by the owners of TAPS to pass through its tariffs more than $100 million of oil spill defense and litigation costs from the Exxon Valdez oil spill. In the U.S. Court of Appeals for the District of Columbia Circuit, he successfully argued against the efforts of the TAPS owners to overturn the FERC’s favorable ruling. In the “electrical code case,” Mr. Loeffler negotiated a novel settlement that established operating cost targets for TAPS and a private dispute resolution mechanism.

Following the settlement of the TAPS case, Mr. Loeffler negotiated tariff settlements for six other oil pipelines that feed into TAPS the Kuparuk, Milne Point, Endicott, Badami, Alpine, and Northstar pipelines. He also was litigation counsel for the State in each of these cases. He currently is counsel to the State efforts to negotiate a successor agreement to the mid-1980’s TAPS and 1991 Kuparuk pipeline rate settlements and in litigating a protest against rate discrimination between TAPS interstate and intrastate rates.

From 1975 through 1982, Mr. Loeffler represented the State of Alaska with respect to competitive proposals before the FERC to build on a project-financed basis an Alaska Natural Gas Pipeline to transport huge quantities of natural gas from Alaska to markets in the lower 48 United States. He represented the State, not only with respect to all of the many hearings and other proceedings concerning that project, but also was counsel to the State with respect to prospective equity and debt investments in excess of $1 billion in the pipeline. He worked closely with investment bankers at Kidder Peabody in preparing the report that considered the feasibility and desirability of State participation. He also was counsel for the State in special discussions personally conducted by the Secretary of Energy in an effort to solve the financing impasse on that project. He was also counsel for the State in the FERC process for both the Pac Indonesia and Pac Alaska LNG projects.

Mr. Loeffler also represented the State in the Beaufort Sea lease sale litigation, a major phase of the Amerada Hess royalty gas litigation, and in a corporate income tax dispute. He has also served as special counsel to the Alaska Permanent Fund with respect to a special equity transfer of $4 billion dollars of unrealized gains to the Constitutional Budget Reserve Fund.

Electric Regulatory Matters

Mr. Loeffler is deeply involved in the California electricity crisis. He has advised AES with respect to numerous difficult issues that arise out of nearly 100 FERC orders that endeavored to resolve the California energy crisis. He represented the AES Corporation in the favorable resolution of an Order to Show Cause with respect to alleged generator improper outages. He has represented AES and other sellers of electricity in FERC enforcement staff investigations concerning aspects of the California electricity crisis. He represented the AES California companies in the attempted mediation at the FERC of the alleged overcharges to California electricity buyers and then represented those companies in the multifaceted California refund proceedings. He has secured market-based rate authorizations, and renewals thereof, and Section 203 approvals for transfers of jurisdictional electric assets for various clients.

He has counseled various sellers of electricity with respect to the rapidly changing regulatory environment for wholesale sellers of electricity. He also represented AES and AES NewEnergy, Inc. with respect to both FERC and Texas PSC investigations of Enron-style trading practices. He recently represented a major party in the restructuring of a $500 million dollar wholesale power contract and secured related regulatory approvals.

In 1998, in the first phase of California’s deregulation, Mr. Loeffler served as federal regulatory counsel to the AES Corporation, the world’s largest developer of independent power plants, with respect to its acquisition of three power plants for $750 million from Southern California Edison. For AES, Mr. Loeffler secured the first approval ever of market rate authority for ancillary services.

He also secured the necessary FERC authorizations for assignment and re-assignment of the must-run agreements and represented AES in the multiparty settlement negotiations for the must-run rates.

Mr. Loeffler represented a key industrial participant in two years of the landmark electric restructuring proceedings in the State of New Hampshire. Representing the key industrial customer in the State, he participated in three months of private mediation efforts conducted by the Honorable William Coleman under the auspices of the federal district court in an effort to break the impasse on the restructuring of the electric industry. He also represented the same party in the Public Service Commission’s five-day hearings on restructuring in the fall of 1997. On behalf of the key public and private parties supporting restructuring he successfully argued before the New Hampshire Supreme Court the landmark case interpreting the State’s restructuring legislation.

Mr. Loeffler also filed briefs in the United States Supreme Court regarding various constitutional issues arising under the federal statute encouraging alternative energy (Mississippi v. Federal Energy Regulatory Commission; American Paper Institute, Inc. v. American Electric Power Service Corp.). Mr. Loeffler also counseled wind and hydroelectric energy project developers and financiers regarding federal permitting and licensing requirements. And, he represented the Massachusetts Institute of Technology in challenging, on preemption grounds, the imposition of a transition charge on newly self-generating customers.

Early in his career, Mr. Loeffler was counsel to various public utilities in federal rate, price squeeze, and interconnection cases.

Natural Gas

Mr. Loeffler represented the Southern Union Company on a very complex preemption problem involving the intersection of federal energy law and state tort law. The case involved a FERC declaratory order proceeding seeking to overturn the judgment of a New Mexico trial court, the briefing of the related case to the New Mexico Supreme Court, and briefing and successful argument to the United States Court of Appeals for the District of Columbia Circuit. He has also advised the Southern Union Company with respect to a number of natural gas regulatory and pricing issues.

Mr. Loeffler also was the natural gas specialist on a World Bank Mission to the Government of the Philippines concerning the development of the Malampaya Gas Project and prepared a special report on the structuring and regulation of gas projects from this field.

Mr. Loeffler represented the City of Long Beach, California, in proceedings before the California Public Utilities Commission concerning the unbundling of gas transportation and distribution service. Mr. Loeffler also advised the City of Long Beach with respect to expansion of its gas markets, with respect to a proposed $44 million contract for the purchase of natural gas for the municipal gas utility, and with respect to other antitrust and municipal issues. Mr. Loeffler also counseled Canadian clients regarding the structuring of, and obtaining regulatory approvals for, contract carriage of natural gas to the California market.

Other Energy Matters

Mr. Loeffler was counsel to the City of Seattle in the defense of a preemption federal court claim brought by the Olympic Pipeline.

Mr. Loeffler was also chief litigation counsel with respect to the Northern Tier Oil Pipeline Project, which was to be built from Port Angeles, Washington, to Clearwater, Minnesota. Within six months of the complaint, he secured a summary judgment decision that defeated 98 of the claims of unlawful activity in permitting of the project. Mr. Loeffler also represented a major institutional investor with respect to its participation in the proposed Pac-Tex oil pipeline from Southern California to Texas.

Intellectual Property

For a decade, Mr. Loeffler has had lead responsibility with respect to a variety of sophisticated intellectual property issues for domestic and overseas clients, including defense of patent infringement suits and Section 337 proceedings at the International Trade Commission, strategies for responding to patent demand letters, government and policy issues relating to intellectual property disputes, and assignments concerned with development of the law of computer software both domestically and abroad.

Licensing and Litigation

Mr. Loeffler led the team that successfully defended the American Red Cross in a patent infringement suit that alleged that its website fundraising infringes a patent claiming a method of interactive contribution solicitation and fundraising.

For a major electronics company, Mr. Loeffler, after years of preparation, analysis, and negotiation, concluded an omnibus license with widely known U.S. inventor Jerome Lemelson, who holds more than 500 patents of industrial and commercial significance. He has represented a number of other electronics industry clients in successful license negotiations involving the Lemelson patents and has been recognized as an expert on Lemelson issues by the trade press.

He has also concluded conventional license negotiations with a variety of individual inventors on behalf of numerous clients. He is an expert on the organization and management of joint defense groups to respond to industry-wide licensing campaigns. Mr. Loeffler has also served as a mediator of a patent-based contract dispute.

At the International Trade Commission Mr. Loeffler defeated a Section 337 complaint by one of Europe’s most aggressive licensing companies seeking to extend its patent to a client’s Digital Satellite System technology.

He also successfully defended five clients against a lawsuit claiming infringement of a smart card patent.

Professional Activities

Mr. Loeffler was a founding partner of the Washington, D.C. office and served as its managing partner during most of its first decade. During his tenure, the office grew from 6 to 55 lawyers. After his term as managing partner, he served successively as chairman of the Firm Budget Committee and its Partnership Review Committee. He served for seven years on the firm’s Points Committee. He was also chair of the firm’s New York office committee, which developed the plan and selected the merger partner for the firm’s New York office. He also chaired the firm’s special attorney structure committee. He has served on the firm’s Management and Policy Committees.

Mr. Loeffler graduated magna cum laude from Harvard College in 1965 and cum laude from Columbia Law School in 1968, where he was an editor of the Columbia Law Review as well as Chairman of the Board of Student Advisors. Mr. Loeffler served as law clerk to Senior Circuit Judge Harold R. Medina (U.S. Court of Appeals for the Second Circuit). Mr. Loeffler was President of the Columbia Law School Association of Washington, D.C. for seven years, and a Vice President of the national Columbia Law Association for six years. He is a member of the Board of Visitors of Columbia Law School and was awarded a medal for Distinguished Alumni Service by Columbia University at its May 2001 Commencement.

Mr. Loeffler served two terms as co-Chair of the Steering Committee of the Administrative Law Section of the D.C. Bar. He also served for five years as Vice Chairman of the Energy Law Committee of the Administrative Law section of the American Bar Association and has been chair or vice-chair of various committees of the Energy Bar. Mr. Loeffler is the editor of the settlement chapter of Energy Law and Transactions. He has lectured on energy topics, ADR, electronic discovery, banking patents, and alternative billing agreements. Mr. Loeffler has served as a member of the Center for Public Resources Utility ADR Committee and is a member of the D.C., American, American Intellectual Property Law, and Energy Bar Associations. He is Secretary of the Charitable Foundation of the Energy Bar Association and was a Director of the Energy Bar Association. He is a member of the Board of the Harvard Club of Washington, D.C. He is admitted to the District of Columbia and New York bars. He was named a Leading Lawyer in Energy Law in the Chambers USA Guide to America’s Leading Business Lawyers (2006 – 2008) and is listed in The Best Lawyers in America (2008 – 2009) as a leader in the fields of energy law and natural resources law.

Representative Matters

Counsel for Liberty Natural Gas with respect to permitting and developing of a half-billion dollar-plus deepwater LNG project and interstate pipeline off shore New Jersey.

Counsel for the State of Alaska with respect to a proposed investment in, and contract for, the development of the $ 20 billion Alaska Gas Pipeline, the largest energy project ever proposed.

Counsel for the State of Alaska in the British Petroleum-Atlantic Richfield merger and successfully argued in federal court for allowing the State to intervene as a party in favor of the merger, a first in antitrust law.

Federal energy regulatory counsel to the AES Corporation with respect to its acquisition of three power plants for $ 750 million from Southern California Edison. Later represented AES with respect to multi-year FERC investigations of the California energy crisis.

Counsel for Southern Union Company in successful effort to overturn on preemption grounds a large jury verdict against the company.

Led the team that successfully defended the American Red Cross in a patent infringement suit that alleged that its website fundraising infringes a patent claiming a method of interactive contribution solicitation and fundraising.