Energy Regulatory + Litigation

These lawyers are wonderful; we had no corporate knowledge of climate change issues and they educated us. They really know the area and are thorough, practical and fast.
Chambers USA

Regulatory issues can be critical to energy project development and financing, mergers and acquisitions, corporate reorganizations, and asset acquisitions and dispositions. Morrison & Foerster regularly addresses these issues, maintaining an active energy regulatory practice in Washington, D.C., and representing clients before the U.S. Federal Energy Regulatory Commission (FERC), the U.S. Department of Energy (DOE), and other federal agencies. We handle regulatory filings and approvals, administrative litigation, major infrastructure development, and various energy transactions. We also represent clients before state utility and public service commissions.

We advise developers, financial institutions, investors, generation owners, utilities and utility holding companies, and power marketers on their electric generation projects, independent electric transmission facilities, battery storage and renewable energy projects and climate change policy, natural gas pipeline and storage projects, natural gas liquefaction terminals and natural gas export opportunities, and hydroelectric generation projects.

We also work with non-U.S. governmental agencies and global clients on their energy regulatory and transactional issues, including export authorization and regulation; competitive electricity market issues; coordination of natural gas and electricity markets and policies; unbundling and restructuring of the supply, transportation, and distribution of natural gas; and the continued transformation of the electric utility industry.

Energy regulation affecting transactions

Morrison & Foerster helps clients identify and resolve energy regulatory issues that impact their existing infrastructure and investments in power generation projects and portfolios, energy storage resources, natural gas pipeline and storage facilities, natural gas liquefaction terminals, cogeneration facilities, and renewable projects. We work closely with clients seeking to develop, license, construct, operate, or expand conventional and renewable energy, LNG, and gas pipeline projects, and associated transmission and distribution infrastructure. We regularly represent parties in a wide variety of merchant energy and commodity transactions.

We provide strategic counseling for clients with interests in the electric, gas, and oil pipeline businesses on a range of matters, including renewable energy development, capacity and resource adequacy matters, generation and transmission project siting and development, energy storage deployment, distributed energy resources, wholesale and retail power sales and agreements, generator interconnection issues, transmission and other cost of service rates, smart grid, demand response programs, and energy efficiency. We also advise on tariff and market development issues within centralized Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs), as well as the various agreements and procedures required to develop assets and participate in RTO and ISO markets.

Energy litigation

Morrison & Foerster represents companies in complex energy-related disputes before administrative bodies, U.S. federal and state trial and appellate courts, and arbitral tribunals. Our integrated team of regulatory, trial, appellate, antitrust, project finance, M+A, private equity, securities, white collar, land use, and environmental lawyers includes thought leaders in the energy sector. We deliver industry-specific strategic advice, sharply honed negotiating skills, and deep litigation experience to help clients reach a successful resolution in critical investigations and disputes.

We offer:

  • Nearly 40 years of experience in representing significant market participants in conventional and renewable energy in all aspects of their energy businesses
  • Market-leading energy lawyers teaming seamlessly across offices and practices in the U.S. and internationally
  • 500 litigators, including top FERC, trial, and appellate lawyers in the U.S., Japan, China, and the UK
  • 10 members of the most elite U.S. trial organizations, the American College of Trial Lawyers and the American Board of Trial Advocates, and 120 lawyers with first-chair trial experience
  • Experience and success in U.S. and international arbitrations
  • Renewable Portfolio Standards experience for developers, utilities, and producers
  • Diverse technical experience that provides a competitive edge in analyzing claims and defenses

Energy enforcement + compliance

Morrison & Foerster has a leading practice in the area of FERC and Commodities Futures Trading Commission (CFTC) compliance, enforcement, and audits, representing and providing advice and training to a broad range of participants in the electricity, natural gas, and other commodity markets.

The risks of non-compliance for energy companies and individuals are significant under FERC’s statutory authority, which explicitly prohibits the manipulation of energy markets, provides for civil penalties up to $1 million per day per violation, and includes possible criminal penalties.

Since Dodd-Frank and the Commodity Exchange Act, the CFTC has enhanced authority to prohibit the manipulation of commodity markets, including energy, and can impose substantial civil penalties (including up to $1 million per violation).

Our resources include lawyers with significant agency enforcement and audit experience, including a former senior CFTC enforcement official and a former assistant general counsel at the CFTC, as well as former prosecutors. We provide FERC and CFTC compliance advice and training to a wide range of market participants.

Merchant energy and commodities

Our work in the merchant energy field is performed by an interdisciplinary team drawn from our Derivatives and Commodities, Secured Finance and Project Finance, Capital Markets, Tax, Energy Regulatory + Litigation, and Financial Restructuring practices. Our team represents commodity dealers and merchants in energy finance and hedging programs, long-term commodity supply arrangements, storage, tolling, processing and off-take deals, trading collateral documentation, and product structuring and development.

Carbon capture, regulation, + markets

As carbon markets take shape in the United States, and continue to scale in Europe, North America, and Asia, companies of all types and their investors are assessing what carbon assets they own and which carbon liabilities they should mitigate. Leveraging experience with both voluntary and regulated approaches across the globe, Morrison & Foerster helps investors and emerging and established companies develop emissions management strategies to optimize their carbon value, minimize liabilities, and seize market opportunities through emission reductions.

We are preparing clients for further U.S. federal, state, and local greenhouse gas emissions regulations, helping them establish the proper legal ownership of carbon reduction value, and avoid legal risks of emerging technologies such as artificial carbon sequestration.

We work in carbon tracking, protecting intellectual property associated with innovative processes, new products, and other pioneering approaches, trading and capturing future carbon value in long-term licensing and sales contracts, and the purchase and sale of emission units that meet the regulatory requirements for our clients’ operations in the U.S., the European Union, and Asia. We have unparalleled capacity among U.S. law firms to negotiate the transactions necessary for large-scale storage and transportation of carbon, and trading carbon reduction value on voluntary or regulated markets, including Clean Development Mechanism and California Air Resources Board credits.

Natural gas regulation

At the U.S. federal and state levels, we work with clients to develop innovative business solutions to ongoing challenges in natural gas regulation.

FERC

We have extensive experience at FERC in all aspects of natural gas regulation and compliance, including: certification of new facilities; exports and imports; ratemaking and tariff design; capacity release; storage and pipeline capacity; market behavior rules; price indices; negotiated and discounted rates; mergers, acquisitions, and changes in control; investigations; and both trial and appellate litigation. Our lawyers have played an active role in addressing broad policy issues before FERC in rulemaking proceedings and notices of inquiry, and through direct interaction with key agency personnel at all levels. Our energy regulatory lawyers are skilled in alternative dispute resolution, and have taken leading roles in multiparty settlements and negotiations.

Pipelines and ports

We have a deep understanding of the LNG business, from siting and development of terminals and pipelines through sale, trading, exportation and importation, and the related regulatory issues. Our lawyers have represented project developers, equity investors, offtakers, and governmental authorities on a broad range of LNG issues. Our work includes negotiation of investment agreements, preparing gas procurement and LNG sales contracts, and negotiation of project joint venture or shareholding arrangements. We have assisted clients with project coordination and advance planning to ensure that all contractual arrangements in the LNG chain—for term, quantity, quality, force majeure, default, damages, and termination, as well as regulatory requirements at FERC, DOE, and elsewhere—are satisfied.

Distribution

Local distribution companies face continuing challenges from U.S. federal and state gas regulatory laws, developments, and policies impacting their business. Our lawyers helped establish unbundling programs for residential and small commercial customers at the local level, and advise on legislative and administrative unbundling programs and a range of CFTC and Dodd-Frank issues.

·         Nearly 40 years of experience in representing significant market participants in conventional and renewable energy in all aspects of their energy businesses

·         Market-leading energy lawyers teaming seamlessly across offices and practices in the U.S. and internationally

·         500 litigators, including top FERC, trial, and appellate lawyers in the U.S., Japan, China, and the UK

·         10 members of the most elite U.S. trial organizations, the American College of Trial Lawyers and the American Board of Trial Advocates, and 120 lawyers with first-chair trial experience

·         Experience and success in U.S. and international arbitrations

·         Renewable Portfolio Standards experience for developers, utilities, and producers

·         Diverse technical experience that provides a competitive edge in analyzing claims and defenses

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Experience

  • AES Corporation with respect to its acquisition of three power plants from Southern California Edison Company for $750 million.

  • Canadian Superior Energy (before reorganization) on the permitting and development of the Liberty LNG project. This project was proposed to consist of a deepwater port off the New Jersey shoreline connecting through an undersea pipeline to an interstate pipeline.

  • China Investment Corporation in successfully obtaining approvals from FERC and the New York Public Service Commission. These were in connection with its $1.6 billion investment in AES Corp.

  • Clean Energy Fuels Corp., the leading provider of natural gas for transportation in North America, in connection acquiring IMW Industries. This was for $125 million plus a $40 million earnout over the next four years; we also advised on a $200 million project financing with General Electric Company in the construction and operation of two LNG plants in the United States, and state energy regulatory matters.

  • EDF Renewables on the environmental, land use, and energy regulatory aspects of wind and solar development, including compliance with NEPA and CEQA; the federal and California Endangered Species Acts; the Clean Water Act and Porter-Cologne Water Quality Control Act; the Williamson Act; local zoning and related laws and regulations; and transmission permitting, interconnection, and regulatory matters.

  • Future Grid Coalition in administrative litigation before the California Public Utilities Commission (CPUC) regarding PG&E’s application to close the Diablo Canyon Nuclear Power Plant (Diablo). Diablo is a 2,000 MW facility with effectively zero carbon emissions. It is the single largest source of zero-carbon energy in California.

  • Interstate Natural Gas Association of America (INGAA) in connection with the Department of Energy’s controversial and significant requirement that the Federal Energy Regulatory Commission (FERC) issue a Notice of Proposed Regulation (NOPR) regarding reliability and resilience pricing so as to provide cost-of-service type subsidies to prevent the retirement of baseload coal and nuclear facilities.

  • KKR and TPG in successfully obtaining FERC and NRC approvals. These approvals were in connection with the purchase of TXU Corp., a $45 billion transaction.

  • Mitsui & Co., Ltd., on regulatory and commercial issues involved in its agreement to acquire part of Kinder Morgan Inc.’s affiliate company. It worked to acquire 30% of the affiliate that is constructing a $200 million natural gas pipeline in Arizona. The planned pipeline will connect to an existing line in Tucson and extend 62 miles to Sasabe, Ariz., which sits on the Arizona-Mexico border. An estimated 200 million cubic feet of gas will be transported each day.

  • The Navajo Nation on energy regulatory, transmission real estate, and other issues regarding the potential closure and repurposing of a large coal generating plant. We are also advising on the contractual and regulatory aspects of the use of 500 MW of electric transmission capacity.

  • Osaka Gas Co., Ltd. and Chubu Electric Power Co., Inc., in their agreement to invest $1.2 billion of equity funding into LNG tech. The funding was for the first liquefaction train of Freeport LNG’s proposed three-train natural gas liquefaction and LNG loading facility on Quintana Island near Freeport, Texas; we are also advising on the gamut of regulatory issues associated with the project’s development. We also represented Osaka Gas and Chubu in their 20-year use or pay liquefaction tolling agreements for the production of 4.4 million tons per year of LNG from the facility.

  • Plains All American Pipeline, L.P. (a subsidiary of Pacific Pipeline System LLC) in all regulatory matters before the CPUC. This was including rate filings and applications, as well as applications for change of control and sales of property.

  • The State of Alaska in multiple negotiations and litigations. This includes a two-year negotiation of a 457-page fiscal contract to form a public-private partnership between the State and ExxonMobil, BP, and ConocoPhillips for the development of the proposed $25 to $30 billion Alaska natural gas pipeline (the largest energy project ever proposed), bringing Alaskan gas through Canada to the lower 48 states. The State’s proposed investment would approximate $5 billion. We also worked on the State’s successful petition to FERC to obtain guidance that resolved regulatory jurisdictional issues for a proposed LNG facility operating in both intrastate and foreign commerce, and on multiple rate proceedings before FERC and the Regulatory Commission of Alaska resulting in over $7 billion of increased royalties and production tax revenue to the State. Finally, we represented Alaska in a challenge to claims by the “TAPS Carriers” (BP Pipelines (Alaska) Inc., ExxonMobil Pipeline Company, ConocoPhillips Transportation Alaska Inc., Unocal Pipeline Company, and Koch Alaska Pipeline Company, L.L.C.) to recover more than $750 million in construction project costs.

  • Texas Energy Future Holdings in an audit by FERC Enforcement's Audit Division regarding compliance with the terms of the agency’s order approving the nation's largest leveraged buy-out, the acquisition of Texas Utilities Corp.

  • UBS Infrastructure & Private Equity in connection with its pending acquisition of a U.S. wind farm portfolio.

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