Federal and State Energy Regulation

Today's sellers of electricity and natural gas face unique and constant challenges created by the dynamic changes inherent in the highly regulated energy industry. Holland & Knight's energy professionals follow closely the latest developments and trends in this complex, shifting landscape, and stand ready to meet clients' federal and state regulatory, transactional and litigation needs.

Attorneys on Holland & Knight's Federal and State Energy Regulatory Team appear routinely before state public utility commissions and the Federal Energy Regulatory Commission (FERC) in industry rulemakings and contested cases. Our lawyers have represented clients before more than 30 state regulatory commissions and facility siting boards in a wide range of traditional rate proceedings, complaints, industry investigations, project approval proceedings and rulemakings. We also participate in legislative advocacy to advance our clients' energy industry interests.

We handle a full range of energy regulatory matters, including work before the following regulatory entities:

• FERC
• regional transmission organizations (RTOs) and independent system operators (ISOs)
• U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC)
• North American Electric Reliability Corporation (NERC)
• state public utility commissions
• state environmental protection and facility siting agencies
• local governments
• Rural Utilities Service (RUS)

FERC Electric Experience

Holland & Knight's Federal and State Energy Regulatory Team represents the energy industry in a wide range of matters before FERC. We handle traditional cost-of-service ratemaking proceedings, as well as other matters, including utility and power plant tariff and market-based rates, incentive rates and formula rates, applications for transmission- and generation-related services, rate and tariff filings and protests, as well as compliance and enforcement matters.

Our FERC experience covers a host of other FERC proceedings and regulatory matters, including:

• advising clients on issues concerning qualifying facility (QF) and exempt wholesale generator (EWG) status
• obtaining approval for acquisitions and dispositions of jurisdictional assets
• obtaining approval for the issuance and assumption of securities by public utilities
• complying with reporting requirements such as interlocking directorates and quarterly reports
• handling hydroelectric licensing, relicensing and compliance matters
• defending against complaints filed under Federal Power Act (FPA) Section 206 and Section 309

Our attorneys also work to ensure that FERC provides fair and open access in a manner that maintains the integrity of the transmission system as new and varied generation sources seek to access the electric grid.

We actively represent clients in competitive wholesale power markets in connection with their respective RTOs and ISOs, including PJM, Midcontinent ISO (MISO), Southwest Power Pool (SPP), California ISO (CAISO), New York ISO (NY-ISO), New England ISO (ISO-NE) and the Electric Reliability Council of Texas (ERCOT). In addition, we monitor and participate in ISO/RTO stakeholder activities to protect our clients' interests as new policies and tariff provisions are developed. We also assist clients in developing NERC compliance programs, responding to enforcement actions or self-reporting violations to regulatory authorities.

Natural Gas, Petroleum and Pipelines

The natural gas and petroleum industries have undergone significant changes in recent years with the rise of shale gas production and its impact on petroleum extraction, the creation of global gas markets through the shipment of liquefied natural gas (LNG), and the increasing use of natural gas for power production and as a transportation fuel.

Our pipeline attorneys advise clients at every stage of the pipeline development process, including pre-development, project structuring, open season, Tribal and other stakeholder consultation, permitting, construction, operation, expansion, continuing regulatory compliance and ongoing transactional services.

Our clients include:

• pipeline owners and operators
• local distribution utilities
• oil and gas pipeline shippers
• developers and operators of oil and LNG terminals
• gas processing and distribution companies
• pipeline and LNG engineering, procurement and construction (EPC) services contractors
• LNG shipping companies
• exploration and production (E&P) companies
• marketing, trading and risk management firms

State Regulation

At the state regulatory level, we have helped define restructured retail electric and natural gas markets, drafted restructuring legislation and participated in hearings to quantify and allocate stranded costs, litigated electric and natural gas rate cases, assisted in the divestiture of nuclear assets and competitive businesses, and supported the establishment of standard offer/default service and unbundled rates. We have represented retail electric suppliers in industry investigations challenging business practices and asserting consumer protection issues.

Our attorneys have assisted the energy industry with legal and compliance needs in dozens of states throughout the U.S. and are well-versed in all regulatory changes and developments at the state level.

We have also assisted power plant developers and investors in the permitting and siting of major electric generation facilities before state facility siting boards and agencies and represented parties before state commissions in connection with wholesale generation merger and acquisition (M&A) transactions.

Enforcement and Compliance

Lawyers on our Federal and State Energy Regulatory Team have experience in all aspects of energy compliance, from conducting regulatory compliance audits to developing compliance and training programs as well as defending clients in FERC and state investigations and enforcement actions. Our experience in these matters allows Holland & Knight to guide clients through complex regulatory proceedings and provide strategic advice and effective representation before regulatory agencies and political decision-makers.

Armed with decades of energy regulatory enforcement and compliance experience, we help clients in all phases of non-public investigations, including self-reports, initial responses to data requests, meetings with FERC and state public utility commission staff, settlement discussions, and development of mitigation plans and ongoing implementation.

Our compliance services include:

• representing clients before FERC enforcement staff in formal and informal investigations
• counseling clients on potential self-reports to NERC and FERC
• defending clients before FERC and various state regulators in formal proceedings
• conducting comprehensive legal and regulatory compliance risk assessments involving critical fact analysis against regulatory standards, risk prioritization and improvement of compliance control (e.g., policies, procedures, standards, processes, audits and training)

We represent all segments of the natural gas industry in specific compliance and enforcement matters, including FERC-regulated pipeline and storage companies, LNG developers, local distribution companies and marketers. Our attorneys advise our clients on matters under a variety of federal statutes – including the Natural Gas Act, the Natural Gas Policy Act and the Energy Policy Act of 2005 – and help them comply with FERC standards of conduct requirements.

Representative Matters

Federal Regulatory

• Represent a large multistate electric distribution utility on federal energy regulatory matters before FERC and wholesale market transactions and disputes involving PJM tariff and market rules
• Representation of retail electric and natural gas suppliers operating in competitive states in connection with market-based rate authorizations, corporate M&A transactions, including FERC approvals under FPA Section 203 as well as regulatory due diligence, approvals and filings in relevant states, ISOs and EDC jurisdictions
• Served as lead outside regulatory and compliance counsel for one of the largest retail energy suppliers in the nation
• Defended a client in litigation associated with the energy crisis of 2000-2001, obtaining a decision by FERC rejecting all claims of unlawful activity under Sections 206 and 309 of the Federal Power Act
• Litigated and obtained an order rejecting all claims raised by a state attorney general alleging market manipulation in violation of Sections 206, 306 and 307 of the Federal Power Act
• Negotiated commercial agreements and obtained regulatory approval for numerous projects, including tolling agreements as well as sale and purchase agreements for power and natural gas assets valued in excess of $2 billion; these matters involved appearances before FERC, DOJ, the Committee on Foreign Ownership in the United States (CFIUS), numerous state regulatory agencies and Canadian antitrust agencies
• Represented an interstate natural gas pipeline developer before the Delaware River Basin Authority in obtaining necessary waterway crossing permits
• Managed numerous FERC and state public utility commission enforcement and self-report matters involving retail electric and natural gas suppliers' billing, operations, market-based rate authorizations, metering and trading in the energy and capacity markets
• Represented retail electric and natural gas suppliers in regulatory enforcement proceedings
• Performed a corporate-wide audit of an integrated energy company's wholesale and retail natural gas transactions for compliance with FERC's transportation, capacity, affiliate, bidding, wash trade and shipper-must-have-title regulations
• Represented a retail energy supplier in PJM, NY-ISO and ISO-NE tariff workshops and related Section 205 rulemaking proceedings on issues of energy and capacity market design and procedure changes
• Obtained all regulatory approvals necessary for a wholesale energy company to purchase electricity in the ISO-NE, PJM and ERCOT wholesale markets for resale to its affiliates, including obtaining market-based rate authorization from FERC, membership in ISO-NE, PJM and ERCOT, and competitive electric supplier authorizations in Massachusetts, New Hampshire, Connecticut and the District of Columbia
• Advised a petroleum refinery in Alaska in settlement of oil pipeline ratemaking proceedings before FERC
• Advised a natural gas pipeline company on open season and open access issues for capacity contracts under federal regulations
• Represented a California petroleum refinery as intervenor in pipeline rate case on ratemaking issues

State Regulatory

The Holland & Knight regulatory team has appeared in front of FERC in numerous proceedings and before more than 30 state utility regulatory commissions, as illustrated on this  map of our State Energy Regulatory Commission experience.

• Served as lead counsel in the acquisition and subsequent divestiture of a leading demand response provider, managing all regulatory approvals and transactional negotiations
• Advised a retail natural gas supplier in its business expansion into the retail electric business, including obtaining licenses and preparing retail customer contracts and related marketing materials in compliance with state regulatory requirements in multiple states
• Served as lead regulatory and due diligence counsel for the $175 million acquisition of a retail electric and natural gas supplier licensed in 15 states and at FERC, including all licensing, antitrust and ISO/RTO submissions
• Audited and subsequently revised retail electric and natural gas supply contracts for the two largest retail suppliers to ensure compliance with state regulations
• Developed and managed an industry-leading compliance program for a retail electric and natural gas supplier with operations in 47 states, including chairing a corporate-wide compliance committee
• Represented a retail supplier in the $200 million stock acquisition of a retail natural gas supplier with operations in more than 20 states
• Represented an asset purchaser of a large electric and natural gas retail supplier valued at more than $150 million, including a customer service center and back-office operations
• Served as lead regulatory counsel representing an international retail electric and natural gas supplier before at least 35 state regulatory agencies, FERC and ISO/RTOs
• Advised a retail electric supplier on the formation of business and market entry in multiple states, including advising founding shareholders on regulatory risks, obtaining retail licenses or approvals in Connecticut, New York, New Jersey, Pennsylvania, Illinois, Ohio, Maryland, Massachusetts and Texas, as well as establishing retail supplier code of conduct, risk management policies, contracts and a compliance program; assisted the client from startup to its growth as a going concern with a market value in excess of $100 million
• Represented a large company in the acquisition of a telecommunications company and advised on compliance with supplier diversity requirements under California law; also represented the company in its application to verify certification for the California Public Utilities Commission (CPUC) Supplier Clearinghouse program
• Advised an energy efficiency company on CPUC precedent and ongoing proceedings concerning procurement of energy efficiency programs
• Represented an electric utility cooperative in natural gas utility rate case before the Regulatory Commission of Alaska
• Advised and represented an energy efficiency provider on evaluation, measurement and verification issues in rulemaking proceeding before the CPUC
• Represented a global energy company in rulemaking proceeding before the CPUC on reliability and safety issues for investor-owned utilities to address in risk management plans as part of general rate cases
• Represented a Tribal government and energy company in the acquisition of a coal mine serving the Four Corners power plant in New Mexico, as well as in proceeding before the Arizona Corporation Commission concerning deregulation of the electricity market
• Represented a natural gas pipeline company in general rate case of a California investor-owned utility before CPUC on ratemaking issues
• Represented oil refineries in general rate cases and rulemaking proceedings before CPUC and FERC