Energy Practice
For decades, Heller Ehrman has been at the forefront of major industry developments affecting energy providers, marketers and consumers, particularly in matters relating to project development and finance, industry regulation, re-structuring, privatization and consolidation (including mergers and acquisitions work).
We work with clients from all parts of the electric power, natural gas and oil sectors. Heller Ehrman has the largest new energy technologies practice of any law firm in the United States. We also represent major U.S. and overseas equity investors, financial institutions and lenders in project finance and new technologies matters. Our experience on behalf of energy clients includes all aspects of project finance, federal and state regulation, energy strategy, project development, project finance and commercial transactions.
Facts About Our Practice
- Feature a highly experienced team of energy attorneys, nearly half of whom are "alumni" of the Federal Energy Regulatory Commission (FERC); others have held high-level positions at the Federal Trade Commission and the Commodity Futures Trading Commission. Heller Ehrman attorneys have also worked in Congress, for state energy and utilities commissions, and as in-house counsel for electric and gas utilities.
- Offer a major project finance and development practice for all types of electric power generation (coal, gas, hydro, wind, solar, and other renewables), transmission and distribution facilities, as well as oil and gas pipelines. We represent both "company-side" and "financing-side" clients, including both U.S. and overseas entities.
- Recognized as leaders in matters relating to industry restructuring. Our attorneys were actively involved in the FERC rulemakings that led to the deregulation and/or restructuring of both the natural gas and electric markets.
- Follow closely and take part in legislative developments. We have drafted and lobbied with respect to several federal and state statutes relating to power sales and power projects, including the Northwest Power Act.
- Involved in some of the highest profile energy litigation matters of the last two decades, from the Exxon Valdez oil spill to California's electricity market crisis to the collapse of Enron.
Our Capabilities
Energy Regulation
Heller Ehrman has extensive experience in both contested cases and generic rulemakings, complaints, certificate proceedings, rate cases and other aspects of regulatory proceedings before FERC and state public utilities commissions and in federal and state courts of appeal. Our experience also includes environmental, transportation and related regulatory issues.
Project Development & Finance
We represent project developers, owners and lenders in the development and financing of power projects and industrial facilities. Our experience includes involvement in most types of generation projects, including wind, landfill methane, nuclear, geothermal, cogeneration, hydroelectric and gas-fired and coal-fired facilities. We serve as both project counsel and as finance counsel on these projects, and we serve as tax counsel for projects of all types.
Mergers & Acquisitions and Strategic Alliances
Our attorneys negotiate, finance and secure regulatory approval (where needed) for mergers and acquisitions, joint ventures, LLCs and other alliances. We are also involved in the acquisition and disposition of numerous energy projects through open and closed auctions and one-on-one negotiations.
Commercial Transactions
Our attorneys have extensive experience negotiating power supply, distribution and related agreements in connection with these transactions. We have experience on all sides of transactions between sellers and purchasers of electricity, gas and oil.
Energy Strategy and Government Relations
We advise clients on strategy and the regulatory implications of proposed transactions. Our attorneys closely monitor developments in the law and counsel clients on the implications of new rules and legislation. We also represent clients before Congress, the executive branch, state legislatures, federal and state agencies, and international organizations.
Litigation
We represent energy clients in antitrust, environmental and contract actions and in insurance coverage matters, complex litigation and disputes arising out of development projects. We litigate contested proceedings in federal and state courts and before federal and state administrative bodies, and also handle appellate work, including to the U.S. Supreme Court.
Electric Power and Transmission
We represent clients in matters relating to regulation of electric power and transmission governed by the Federal Energy Regulatory Commission, state public utilities commissions, the Commodity Futures Trading Commission, the Environmental Protection Agency and related state agencies, as well as other state and federal administrative bodies. We have extensive experience in rate cases, complaints, generic rulemakings and all other aspects of energy regulatory proceeding. We also have significant experience handling electric power issues outside the United States.
Our Capabilities
Wholesale Rates and Interstate Transmission
Our lawyers are intimately familiar with regulation of electric power, transmission access and pricing policy, and ratemaking. We have extensive experience before FERC in wholesale rate cases, merger proceedings, Independent System Operator (ISO) disputes and other litigated FERC proceedings. Our former FERC attorneys played a major role in developing and implementing FERC Order No. 888, which ordered all U.S. electric utilities to provide open access transmission service and directed efforts in aspects of the subsequent restructuring of the electric industry.
We have worked on Regional Transmission Organization (RTO) formation and the long-term transmission pricing issues currently under discussion in the PJM-Midwest regions and, western regions (e.g. GridWest and CalISO). We play a leading role in ongoing matters arising out of California's 2000-2001 electricity market crisis.
Market Oversight
Heller Ehrman advises electric and gas utilities concerning FERC's standards of conduct, including issues addressed in Order Nos. 2004 and 2004-A. We have worked closely with the personnel in FERC's Office of Enforcement. In the high-profile, multi-party proceedings related to the California ISO market failures, Heller Ehrman has been in the trenches on active litigation concerning market power and market manipulation issues.
Retail Sales and Intrastate Transmission
We have significant experience before state public utility commissions in connection with retail rate cases, intrastate transmission issues, and certifications for new electric generation and transmission facilities. Nearly two dozen Heller Ehrman attorneys have appeared before state public utility commissions in at least 27 states.
Hydroelectric Dam Licensing
We assist clients before FERC and in complex multiparty negotiations regarding all aspects of licensing and relicensing hydroelectric projects, from traditional through alternative and integrated licensing processes, as well as related water certifications and other environmental matters. We have assisted numerous clients in privatizations of federal projects.
Representative Engagements
- Exelon: Represent Exelon and its subsidiaries, Commonwealth Edison (Com Ed) and PECO Energy, on FERC rate matters including litigation concerning PJM ratemaking issues, transmission rate filings for Com Ed, and rate related contract disputes on behalf of PECO.
- Pacific Gas and Electric Company: Represent PG&E in FERC and appellate proceedings regarding wholesale power rates and in numerous other matters related to California electric power markets and the multi-billion dollar litigation concerning the California electric crisis of 2000-2001.
- TransConnect, LLC: Represented multiple western utilities in their development of this independent transmission company, that was intended to participate in a Western regional transmission organization.
- Chugach Electric Association: Represent Chugach in the ongoing relicensing proceeding for the Cooper Lake Hydroelectric Project before FERC and in all regulatory proceedings before the Regulatory Commission of Alaska, including its general rate cases and appeals.
- Puget Sound Energy: Represented PSE in FERC rate proceedings relating to transmission rates and PSE's Open Access Transmission Tariff, classification of transmission and distribution facilities, and FERC-jurisdictional transmission rates for retail access industrial customers.
- Republic of Russia: Represented the Republic of Russia in its electric power sector restructuring efforts.
Energy Projects, Finance and Transactions
As part of our comprehensive energy practice, our finance and transactional lawyers represent utilities, electric power and gas marketers, and independent power producers in a wide range of matters. We handle mergers, acquisitions and dispositions of energy assets and businesses, project development and finance, privatization matters, joint ventures, and natural gas and electricity commodities and related derivatives contracts. Our experience with sophisticated financing structures and complicated M&A transactions, coupled with extensive industry knowledge places us in a unique position to address the project, financing and transactional needs of our clients in the energy industry.
Our Capabilities
Power Projects
We work on the development, acquisition and disposition of a variety of generation projects, including traditional thermal (coal and gas-fired) and hydroelectric facilities as well as solar (PV and thermal collector), wind, landfill methane, geothermal, cogeneration and newer technologies (e.g., 1st and 2nd generation coal gasification and other "clean-tech" technologies. We help clients develop, construct and finance all types of industrial facilities, including permitting, licensing, site control, design, constructing and financing, as well as negotiate necessary ancillary agreements for fuel supply, off-take, tolling, operations and maintenance (O&M), transmission and interconnection.
Financing
Our finance and energy practices have collaborated for energy companies, investors and lenders on a wide array of financing structures, including leveraged and synthetic leases, non-recourse project financing and securitization vehicles. These financings have included bank facilities, such as secured and unsecured corporate credit facilities, letter of credit facilities, operating lines of credit and variable interest rate products, as well as more unusual public-private collaborations and various tax-equity advantaged structures. In support of such financings, we provide strategic advice regarding taxation, state and federal regulatory hurdles and capital markets sensitivities.
Transactions
In addition to merger agreements, asset purchase and sales agreements, leases and joint ventures, for public and private entities, our lawyers negotiate tariffs, industry-standard contracts and a wide range of transaction-specific agreements. We assist clients in the formation and negotiation of wholesale power and energy transactions, representing buyers, sellers and marketers. We regularly represent clients in a variety of derivative transactions involving natural gas and electricity commodities for the purpose of acquiring or disposing of physical supplies, as well as financial transactions to hedge pricing and availability risk. We also assist clients in gaining necessary state and federal regulatory approvals of such transactions.
Representative Engagements
- Avista Power: Represented Avista in the development, acquisition and financing of numerous combined-cycle gas turbine power plants in Texas, Idaho, Washington and Oregon.
- Mirant: Represented Mirant in connection with its combined-cycle gas-fired power plants in Washington, Oregon and Nevada.
- Represent the Siemens - Summit Power consortium in the development and financing of combined-cycle gas turbine, wind power and coal gasification power plants in Missouri, Texas, Utah, California, Oregon and Washington.
- NESCO: Represent NESCO in the development and financing of numerous power plants, including a 15-megawatt renewable energy, biomass-fueled cogeneration facility; a 265-megawatt combined cycle power plant in Canada; and a 307-megawatt combined-cycle power plant in Washington.
- Alaska Electric Light & Power: Represented the take-or-pay power purchaser in the largest-ever market-financed privatization of a federal asset, the $100 million Snettisham Hydroelectric Project near Juneau, Alaska.
- Kenetech Windpower, Inc.: Represented Kenetech Windpower, Inc. (formerly U.S. Windpower) in structuring, negotiating, documenting and closing project financings for 500 large windmills at Altamont Pass in Northern California.
- Wells Fargo: Represented Wells Fargo as the lead of a consortium of banks providing credit facilities to Pemex in connection with construction of an offshore oil platform.
- AES Pacific: Represented AES Pacific in the acquisition of New Energy Ventures. We also represent AES Pacific in the acquisition of a 1300-megawatt coal-fired steam plant and an associated coal mine.
- Represent parties in exchange traded positions, including natural gas futures, options, contracts, swap futures and basis swap contracts using NYMEX's on-line trading platform, Electronic Execution System, the Intercontinental Exchange (ICE) and other markets.
- Vectren Corporation: Merger of Indiana Energy Inc. and SigCorp (U.S. Department of Justice, 2000).
- Vectren Corporation: Acquisitions of gas distribution assets of Dayton Power and Light Company (U.S. Department of Justice, 1999).
- Amoco: Represented Amoco in the BP/Amoco merger; Texaco in the Texaco/Chevron merger, Exxon and Mobil in the Exxon/Mobil merger, Sunoco in separate acquisitions of Chevron's and El Paso's Philadelphia-area refineries, and Royal Dutch Shell in the acquisition of Montedison.
- Aloha Petroleum, Ltd.: Obtained merger clearance for Aloha Petroleum in its acquisition of Trustreet Properties, Inc.'s gasoline assets in Hawaii. After an investigation by the Federal Trade Commission, the agency sought a preliminary injunction in the U.S. Districty Court in the District of Hawaii to block the proposed acquisition. Based on discovery, we convinced the Commission to drop its case before the evidentiary hearing.
- Buckeye Pipe Line Company: Obtained merger clearances for Buckeye in its acquisition of ExxonMobil's terminal and pipeline assets in the Northeast United States.
- Penzoil-Quaker State Company: Involved Clayton Act challenge to the merger pf Pennzoil and Quaker State.
Energy Regulation and Litigation
Heller Ehrman has one of the preeminent energy regulation and litigation practices in the United States. In a wide variety of high-stakes cases before the Federal Energy Regulatory Commission (FERC), the Federal Trade Commission, the Commodity Futures Trading Commission (CFTC) and other regulatory entities, and federal courts, our lawyers have been at the forefront of major regulatory developments affecting energy providers and purchasers in matters relating to electric power, natural gas and crude oil pipelines, market restructuring and consolidation, and antitrust litigation. With our deep knowledge of the regulatory law and extensive work with clients from all parts of the energy sector, we create uncommonly favorable results and creative solutions for our clients.
As a full-service firm, we have the resources and experience to handle all issues relating to energy regulation, litigation and arbitration throughout the United States and elsewhere in the world. Our practice spans federal and state public utility regulation; regulatory approvals for mergers, divestitures, and other complex transactions; regulation under the Federal Power Act (including hydroelectric regulation), the Natural Gas Act, the Public Utility Holding Company Act and the Commodity Exchange Act; antitrust counseling and litigation; derivatives trading counseling and litigation, and regulation of qualifying facilities, exempt wholesale generators and foreign utility companies. Our clients include the largest utilities and power plant developers in most regions of the United States.
More than a third of our energy attorneys are "alumni" of FERC, and several others have worked for state energy commissions or as in-house counsel for electric and gas utilities. We have extensive experience in generic rulemakings, complaints, certificate proceedings, rate cases and other aspects of energy regulatory proceedings before FERC and state public utilities commissions as well as in federal and state courts of appeal. Our attorneys were actively involved in the rulemakings and contested cases that led to the deregulation of both the natural gas and electric markets. Heller Ehrman's ranks also include the current Chair of the American Bar Association's section of Antitrust Law and a former Director of Enforcement at the CFTC.
We also represent energy clients in antitrust, environmental and contract actions and in insurance coverage matters, complex litigation and commercial disputes related to energy projects. We litigate contested proceedings in federal and state courts and before federal and state administrative bodies and also handle appellate work, including to the U.S. Supreme Court. We offer counsel and suggest innovative solutions to avoid litigation and obtain practical, expeditious and economical solutions. Whenever possible, our lawyers provide the means of proceeding through negotiation, mediation and other forms of alternative dispute resolution. When settlement is not possible, however, we provide among the best litigation services in the energy industry.
Representative Engagements
- Pacific Gas and Electric Company: Represent PG&E in litigation at FERC and in federal district court (PG&E v. Lynch, et al.) and courts of appeals concerning the Western electric crisis of 2000-2001. As the largest power buyer in the California markets, PG&E suffered multi-billion dollar losses as a result of the crisis, which spawned dozens of separate lawsuits and docketed investigations, involving hundreds of parties and thousands of pleadings, creating the most massive and complex proceeding in FERC history. Heller Ehrman has played a central role in this mega-proceeding, a case that is expected to yield a payout of several billion dollars in refunds to PG&E and other buyers in California.
- PacifiCorp: Represent PacifiCorp in a filed rate doctrine action in federal court against the Wyoming Public Service Commission, challenging its refusal to allow PacifiCorp to recover, in its retail electric rates, more than $150 million in FERC-regulated wholesale electric power costs that PacifiCorp incurred to serve its Wyoming customers during the Western power market crisis.
- Unicom Corporation: Represented Unicom (parent of Commonwealth Edison) in obtaining favorable FERC approval to merge with PECO Energy to form Exelon Corporation, by many measures the largest electric utility in the nation.
- Bonneville Power Administration: Defended BPA in an arbitration claim for more than $1 billion for alleged breach of a contract securing construction of a major power plant. This was the first case in which the U.S. government submitted to binding arbitration and the largest case in American Arbitration Association history.
- PT Global Industries: Represent PT Global Industries in $100 million arbitration proceedings in Singapore arising out of the construction of a series of offshore gas platforms in Indonesia.
- Pacific Gas and Electric Company: Represented PG&E and a wholly owned subsidiary in an action under Section 1 of the Sherman Act and various California statutes alleging price fixing in PG&E's acquisition of natural gas in Canada. Obtained a dismissal with prejudice of a $950 million claim and successfully defended the dismissal on appeal.
- Chugach Electric Association: Mounted a successful defense against nine claims by Chugach's largest customer that Chugach had violated the parties' 25-year power supply contract. All nine of the plaintiff's claims were dismissed by the Alaska Superior Court.
- ChevronTexaco Corporation: Appeal to the California Supreme Court involving allegation that acquisition by Texaco of state assets of another oil company persuant to a merger was unlawful under the Cartwright Act.
Natural Gas and Oil Pipelines
Our attorneys have been representing companies in the oil and gas industries for more than 25 years. We are actively involved in federal and state regulation matters and have extensive experience with pipeline and storage development projects, both domestic and international. Our work in this area includes litigation, regulatory proceedings, market enforcement and compliance, project development, acquisitions and mergers, power supply, environmental compliance, finance and client counseling.
Facts About Our Practice
- Involved in energy infrastructure projects of all types, including matters relating to oil and natural gas storage and pipeline installations throughout North America, the Middle East and Russia.
- Represented Alyeska Pipeline Service Company and the owners of the Trans Alaska Pipeline System (TAPS), the nation's largest crude oil pipeline, on more than 75 matters since 1988 and remain outside counsel for Alyeska and TAPS on a wide variety of pipeline matters.
- Attorneys have substantial experience in rates and rate design, including market-based and incentive rates.
- Represented a natural gas storage company in all facets of FERC regulation.
- Represented an interstate natural gas pipeline on mergers, acquisitions and joint ventures; marketing affiliate rules compliance; government environmental permits and rights of way; natural gas storage matters; creditors' rights and related tariff issues; and SEC compliance.
- Includes the former general counsel of a major West Coast interstate natural gas pipeline, where he oversaw Securities and Exchange Commission compliance, marketing affiliate rule compliance, U.S. Department of Transportation safety compliance and complex commercial arrangements. Also includes the former acting director of the Federal Energy Regulatory Commission office responsible for oil pipeline regulation and special pipeline rates.
Representative Engagements
- Alyeska Pipeline Service Co.: Represent Alyeska and the owners of the Trans Alaska Pipeline System (TAPS) on a wide range of energy, environmental, regulatory and corporate matters. Also represented Alyeska in negotiations and litigation with a telecommunications service provider regarding the service provider's breach of a multi-year, $100 million service contract, as well as a promissory estoppel dispute, resulting in dismissal of all claims.
- Enstor Operating Company, LLC: Represent Enstor, a natural gas storage operator, and its numerous affiliates, in rate, certificate and rulemaking proceedings before FERC, as well as on a wide range of transactional matters, including the negotiation of service agreements with its storage customers and interconnection agreements with interstate pipelines.
- Chugach Electric Association, Inc.: Represented Chugach in the acquisition of long-term natural gas supplies (525 billion cubic feet of gas from four separate producers) and in proceedings to provide direct interconnection with gas producers.
- PPM Energy, Inc.: Represent PPM, a natural gas and electricity marketer, in regulatory and transactional matters involving natural gas purchase and sale and transportation agreements.
- Represent interstate and intrastate pipelines before state and federal regulatory agencies in administrative and judicial proceedings, including certificate, rate and rulemaking proceedings.
- Represent large LDC shippers in contested interstate pipeline FERC proceedings.
- Represent pipeline manager of major producer in Clean Water Act criminal proceedings and shareholder derivative action arising from allegations arising from the largest oil spill on Alaska’s North Slope.
- Drafted and negotiated natural gas purchasing and transportation agreements on behalf of sellers and purchasers of gas, including hedging price terms and capacity release and assignment provisions.
- Represent a pipeline company in dual federal and state administrative proceedings and related litigation regarding the company's National Pollutant Discharge Elimination System permit for treated ballast-water discharges at its marine terminal.
- Represented a pipeline company in Environmental Protection Agency rulemaking proceedings to develop hazardous air pollutant "Maximum Achievable Control Technology" standards for the largest marine terminal in the United States.
- Represented oil and gas producer in defending against Clean Water Act criminal proceedings arising from alleged leak from underwater oil pipeline.
- Represented a pipeline company in its conversion from state to federal regulation.
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