Morrison & Foerster represents clients in federal and state energy regulatory matters, in regulatory litigation, and on major infrastructure and other transactions. We represent and advise clients in connection with legislative and regulatory developments affecting the energy industry, and maintain an active energy regulatory practice in Washington, D.C., representing clients before the Federal Energy Regulatory Commission (FERC), the Department of Energy (DOE), and other federal agencies with energy jurisdiction on a range of matters and issues. We also represent clients before state utility/public service commissions.

We regularly address energy regulatory issues critical to mergers and acquisitions, corporate reorganizations, asset acquisitions and dispositions, and project development and financing. We advise developers, financial institutions, investors, and commodity marketers on energy regulatory issues associated with electric generating projects, independent electric transmission facilities, natural gas pipeline and storage projects, natural gas liquefaction terminals and natural gas export opportunities, hydroelectric generating projects, and utility companies. We advise non-U.S. governmental agencies and other non-U.S. clients on energy regulatory and transactional issues, including export authorization and regulation; competitive electricity markets for products (such as energy, capacity, and ancillary services); coordination of natural gas and electricity markets and policies; unbundling and restructuring of the supply, transportation, and distribution of natural gas; and restructuring of the electric utility industry.

Energy Regulation Affecting Transactions

We assist clients in identifying and resolving energy regulatory issues in connection with investments in power generating projects and portfolios, natural gas pipeline and storage facilities, natural gas liquefaction terminals, cogeneration facilities, renewable fuel projects, and integrated utility companies. We work closely with clients seeking to develop, license, construct, and operate conventional, alternative, and renewable energy, LNG, and gas pipeline projects, and to authorize, expand, or restructure generation, transmission, and distribution facilities. We regularly represent parties in a wide variety of merchant energy and commodity transactions. We provide strategic counseling for clients with interests in the gas, electric, and oil pipeline businesses on a range of matters, including renewable energy portfolio standards, resource adequacy, generation and transmission project siting and development, distributed generation, retail power sales, generator interconnection procedures and contracts, transmission rates and terms of service, smart grid, demand response, energy efficiency, and energy storage rules and policies.

Energy Litigation

We have successfully litigated some of the energy sector's most important cases.  Our attorneys have litigated many jurisdictional disputes involving the Federal Power Act and the Natural Gas Act.  Our recent representations include trial victories in two federal courts successfully challenging the constitutionality of certain state energy procurement mandates (PPL EnergyPlus v. Nazarian (D. Md. 2013) and PPL EnergyPlus v. Solomon (D. N.J. 2013)) on grounds of federal preemption. We appear before regulators, as well as federal and state trial and appellate courts, in a wide range of contested matters and multiparty settlement proceedings, including electric, natural gas, and oil pipeline rate cases; state and federal court challenges to energy projects; controversies regarding state implementation of PURPA;  appeals of state public utility commission and FERC decisions; antitrust claims concerning  electric and natural gas industry companies; complex contract disputes; disputes between energy service providers and suppliers, and utilities or commercial/industrial customers; controversies concerning interconnection and transmission access; and disputes as to pipeline service obligations. We regularly represent clients in FERC and other investigations and in securities cases arising out of major energy industry events, such as the California energy crisis. We represent AES Corporation with respect to the FERC investigations of all wholesale sellers of electricity in the spot markets operated by the California Independent System Operator and the California Power Exchange, and in the hearings related to the investigations.

For more than three decades, we have represented the State of Alaska in all of its oil pipeline matters before FERC on the Trans-Alaska Pipeline (TAPS). At both the FERC and the Regulatory Commission of Alaska, the rate litigation and settlements have resulted in more than $7 billion of increased royalties and production tax revenues to the State. We have addressed issues such as quality banks, pumpability factors, remediation costs for corrosion repairs and deficient management practices, and inclusion of settlement costs related to the Exxon Valdez oil spill in FERC hearings, rulemakings, and declaratory order proceedings. We also represented Alaska in North Slope oil and gas royalty litigation, Alaska production tax cases, lease sale litigation, and bankruptcy proceedings. 

Energy Project Development & Finance

Our energy, corporate, and project finance attorneys work together to structure U.S. and international renewable energy projects, including assisting with the negotiation of underlying power purchase agreements, construction contracts, operation and maintenance agreements, thermal host agreements, and natural gas and other fuel supply and commodity agreements. Our Clean Technology and Renewable Energy team has extensive experience providing legal services to companies in the renewable energy sector, including those engaged in solar, biofuels, wind, geothermal, ocean (tide and wave energy), waste-to-energy, energy storage, and hydroelectric matters. We served as counsel to many State of Alaska administrations on the development of the Alaska gas pipeline (the world’s largest energy project) in extensive FERC hearings, rulemakings, and declaratory order proceedings. We served as lead counsel to the Liberty Natural Gas project before its reorganization, a $750 billion deepwater port and pipeline to be licensed by the U.S. Maritime Administration and the FERC.

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, 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.

Our Energy Regulatory Clients Include:

AES Corporation, BayWa r.e. Wind, Comverge, EDF Renewable Energy, Fiera Axium Infrastructure, Inc., JP Morgan, Liberty Natural Gas (before reorganization), Pacific Energy Partners, Plains All American Pipeline L.P. (a subsidiary of Pacific Pipeline System LLC), Pristine Sun, PSEG, Southwest Gas Corporation, UBS Infrastructure & Private Equity, UGI Corp., the State of Alaska, and WGL Holdings.

Osaka Gas Co., Ltd. and Chubu Electric Power Co., Inc., in their agreement to invest $1.2 billion of equity funding for the first liquefaction train of Freeport LNG's proposed 3-train natural gas liquefaction and LNG loading facility on Quintana Island near Freeport, Texas; and 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.
Major electricity and natural gas companies with regard to compliance with CFTC and SEC regulations under the Dodd-Frank Wall Street Reform and Consumer Protection Act. We have also advised clients with respect to requirements imposed on commercial end users of derivatives by CFTC regulations, including with regard to corporate resolutions to elect the end-user exception, hedging policies, recordkeeping, reporting, and documentation requirements.
Mitsui & Co., Ltd., on regulatory and commercial issues involved in its agreement to acquire 30 percent of a Kinder Morgan Inc. affiliate company 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 State of Alaska in 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.
The State of Alaska in a 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 in 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.
The State of 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. In February 2014, the Administrative Law Judge issued a 542-page Initial Decision following more than eight years of litigation in which she found that the TAPS Carriers mismanaged the conception, planning, and execution of the project and the resulting costs, more than triple the original estimate, were unreasonable and imprudently incurred. The Initial Decision is projected to result in a disallowance of $525 million in project expenses.
Fiera Axium Infrastructure in connection with an acquisition of a 49 percent private equity interest in a wind farm located in Oregon State from EDP Renewables North America.
UBS Infrastructure & Private Equity in connection with its pending acquisition of a U.S. wind farm portfolio.
Plains All American Pipeline, L.P. (a subsidiary of Pacific Pipeline System LLC) in all regulatory matters before the CPUC, including rate filings and applications, as well as applications for change of control and sales of property.
KKR and TPG in successfully obtaining FERC and NRC approvals in connection with the purchase of TXU Corp., a $45 billion transaction.
China Investment Corporation in successfully obtaining approvals from FERC and the New York Public Service Commission in connection with its $1.6 billion investment in AES Corp.
Consortium of lenders in the financing of the Post Rock project, a 201 MW wind farm in Kansas.
BMO Capital Markets as financial advisor to CNOOC Ltd., China’s largest producer of offshore crude oil and natural gas, in its $19.4 billion acquisition of Nexen Inc., a Canadian upstream oil and gas company.
Mitsui & Co., Ltd., in its agreement to acquire 30 percent of a Kinder Morgan Inc. affiliate company 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.
Clean Energy Fuels Corp., the leading provider of natural gas for transportation in North America, in connection with its acquisition of IMW Industries for $125 million plus a $40 million earnout over the next four years; in 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.
Canadian Superior Energy (before reorganization) on the permitting and development of the Liberty LNG project, proposed to consist of a deepwater port off the New Jersey shoreline connecting through an undersea pipeline to an interstate pipeline.
AES Corporation with respect to its acquisition of three power plants from Southern California Edison Company for $750 million.
Zori G. Ferkin
Of Counsel
Washington D.C.
(202) 887-1532

Robert S. Fleishman
Senior Of Counsel
Washington D.C.
(202) 887-8768

Julian E. Hammar
Of Counsel
Washington D.C.
(202) 887-1679

Peter W. Hanschen
Senior Of Counsel
San Francisco
(415) 268-7214

Robert H. Loeffler
Senior Counsel
Washington D.C.
(202) 887-1506

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