Practice Areas :
Energy and Natural Resources
Patton Boggs’ electricity practice encompasses both a domestic practice before the Federal Energy Regulatory Commission (FERC), state public utility commissions, and courts, as well as an international transaction practice currently centered in the Middle East.
The Domestic Practice
In the U.S., we provide services to a broad array of participants in the electric industry – investor-owned and governmental utilities, independent power producers, equity investors, lenders, and large industrials. We advise these participants on FERC’s regulation of mergers, asset acquisitions and divestitures, electric power plant development and financing, “RTO/ISOs,” open-access transmission and interconnection, power sales and purchases, standards of conduct, market-based rate and market manipulation rules, “PUHCA,” “PURPA,” and hydroelectric licensing. ENR Group lawyers have:
- Advised asset purchasers, investors and lenders on the energy regulation issues involved in transactions valued in excess of $14 billion since September 2003. Some of these transactions required the creation of passive ownership structures to especially minimize federal and state energy regulation of upstream investors and financial investors.
- Represented a former electric customer of Enron in the wake of one of the largest financial and political scandals in electric utility history. Our litigators’ persistent efforts to uncover evidence of electric market manipulation by Enron led to the release of the infamous audio tapes of Enron telephone calls that have been widely publicized by major news organizations throughout the country.
- Advised transmission providers on the development of new transmission projects and on compliance with FERC’s open-access transmission tariffs and interconnection, standards of conduct, and reliability rules.
- Advised asset developers and investors on federal and state regulatory requirements and incentives for the development and operation of wind, hydroelectric, solar, geothermal, and tidal energy projects.
- Assisted generating asset owners, power marketers, load-serving entities, and industrials in buying and selling electricity in both RTO/ISO and traditional markets, including the development and negotiation of power sales (wholesale and retail) contracts, compliance with ISO/RTO market rules, and the development of reliability-must-run contracts.
- Negotiated the project financing and lease financing of gas turbine power generation facilities.
- Advised asset purchasers on structuring transactions for the monetization of industrial generating assets and the structuring of retail power sales arrangements to minimize federal and state regulation.
- Provided compliance training, investigation, and audit services to energy companies on FERC’s standards of conduct and market manipulation rules.
- Litigated wholesale electricity and transmission tariff and rate cases at FERC and in the U.S. Courts of Appeals, including direct facilities charges levied on newly interconnected generators.
- Negotiated electricity service arrangements with wholesale and retail power suppliers on behalf of load-serving entities and industrials resulting in significantly decreased electricity costs for those purchasers.
- Ensured compliance with regulatory requirements of the Federal Communications Commission (FCC) when electric utility mergers or acquisitions resulted in the direct and indirect transfer of control over FCC licenses.
Patton Boggs has rich experience in the development, financing and acquisition of renewable projects. Wind development projects have been particularly active for us, and we are advising (or have recently advised) on the development of a large combination wind/natural gas complex in Colorado. We are also advising on the financing and development of wind energy projects representing almost 800 megawatts of capacity in Texas.
Over the courses of their careers, Patton Boggs’ lawyers also have advised developers and investors on regulatory issues for solar (California), geothermal (Nevada and California), hydroelectric (nationwide), and most recently, tidal energy (California) projects. This experience includes compliance with FERC’s “QF rules,” older “PURPA” contracts and their replacements, interconnection disputes, power sales agreements, O&M agreements, transmission agreements, FERC’s rules governing market-base rate authorization, “EWG” status, and the construction, bridge loan, and permanent financing of such facilities.
Finally, although many in the electricity industry do not view hydroelectric energy as a “renewable resource,” Patton Boggs advises the owners of hydroelectric projects on FERC hydroelectric licensing issues, including FERC jurisdictional issues, license renewal proceedings, environmental and natural resources compliance requirements, water rights, third party use of lands within a project boundary, interconnection/primary line issues, and asset purchases and sales.
Compliance and Auditing
In the wake of the Enron scandal and the increased civil and criminal penalty authority provided to FERC in the Energy Policy Act of 2005, one of the growing areas of our electricity practice has been compliance with FERC’s rules. We increasingly are called to advise clients on FERC’s standards of conduct, codes of conduct, market behavior rules, market manipulation rules, reporting requirements, and enforcement policy.
FERC’s new market manipulation rules and enforcement policy are based on Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) rules and precedents. Drawing together lawyers from other departments within the firm, we have developed a team of lawyers – including litigators – with FERC, SEC, and CFTC enforcement experience capable of fully addressing any issues raised by FERC enforcement of any of its rules, including its new market manipulation rules. As a result, we have:
- Advised clients on specific compliance issues involving FERC’s standards of conduct, codes of conduct, market behavior, market manipulation, and reporting rules.
- Provided compliance training programs on FERC’s new market manipulation rules, enforcement policy, and reporting requirements.
- Defended targets and potential targets in formal and informal FERC investigations.
The International Practice
While the bulk of Patton Boggs’ international electricity lawyers are currently located in the Middle East, our international electricity practice is much more expansive. Members of this newly-formed team have:
- Advised in the sale by Kahramaa of certain of its power and desalination plants and the subsequent sale to Kahramaa of electricity and potable water.
- Represented the commercial bank lenders in the restructuring of the $2.56 billion bank and capital markets financing of the Patton power project in Indonesia – named 2002 “Asia Pacific Restructuring Deal of the Year” by Project Finance International.
- Represented the lenders in the $1.5 billion privatization financing of the Ratchaburi power project in Thailand – named 2000 “Project Finance Deal of the Year” by Asiamoney and 2000 “Asia Pacific Project Finance Deal of the Year” by International Financial Review.
Patton Boggs’ international electricity lawyers also are currently involved in several projects involving LNG development.