Jackson Walker represents energy clients in a broad range of federal and state regulatory matters, including interstate and intrastate natural gas pipelines and storage companies, LNG facilities, electric utilities, exempt wholesale generators, and Public Utility Regulatory Policies Act (PURPA) qualifying facilities. We represent clients in a variety of matters before the FERC, the U.S. Coast Guard, the U.S. Minerals Management Service, the U.S. Department of Energy’s Office of Fossil Energy, U.S. Department of Energy’s National Energy Technology Laboratory (including the Clean Coal Power Initiative), state public utility commission (including the Texas Public Utility Commission), and the federal courts.

Our natural gas regulatory experience includes the preparation of Natural Gas Act certificate applications to construct and operate pipelines and related facilities as well as salt dome and depleted reservoir storage facilities; cost-of-service rates; negotiated rates and market-based rate structures; applications to abandon service and facilities; transportation tariffs, including all terms and conditions and pro forma agreements included as part of such tariffs; Department of Energy gas import and export authorizations; Department of Energy Department of Energy Federal Acquisition Regulations; and hearings related to FERC certificate, rate, rulemaking and compliance proceedings, as well as investigations and enforcement actions. We also counsel clients on regulatory matters arising under the Natural Gas Act, Natural Gas Policy Act, and FERC policy.

Jackson Walker attorneys have prepared and argued cases appealing decisions of regulatory agencies before state and federal courts, represented offshore natural gas pipelines before the MMS in matters arising under the Outer Continental Shelf Lands Act, represented clients in Deepwater Port Act licensing proceedings before the Department of Transportation, and assisted in the drafting of regulations for the Coast Guard’s implementation of the Deepwater Port Act. We also have assisted clients in obtaining gas removal permits from various Canadian provinces and gas export authorizations from the Canadian National Energy Board.

Our firm’s electricity regulatory experience includes the preparation of PURPA notices of self-certification of qualifying facility status for cogeneration and small power production facilities; review of qualifying facility power purchase and operating agreements; preparation of applications for triennial review of market-based rates (including Supply Margin Assessment screens), as well as other Federal Power Act filings. We have represented clients in Standard Market Design and the California and Pacific Northwest refund proceedings, as well as stakeholders in FERC hydropower licensing proceedings, and have obtained foreign utility company status for clients under the Public Utility Holding Company Act. We also advise clients on PURPA, Federal Power Act and 1992 Energy Policy Act-related matters, as well as on retail electric power competition issues in Texas and other states.

Alicia R. French

Senior Counsel, Austin

Ali Abazari

Partner, Austin

Michael J. Nasi

Partner, Austin

Benjamin R. Rhem

Partner, Austin

Denise Rose

Governmental Affairs Consultant, Austin

Edward C. Small

Partner, Austin

Kathleen M. LaValle

Of Counsel, Dallas

Lawton P. Cummings

Senior Counsel, Austin

Jennifer Ferri

Senior Counsel, Austin

Public Utility Commission of Texas (PUCT)

  • Representation, as lead counsel, of a transmission and distribution utility operating in ERCOT in its 2010 rate case before the PUCT. Commission Staff and several intervenors opposed the utility’s request. The case was resolved by a Commission-approved settlement, providing for a $10.25 million (5.8%) annual base rate increase. The settlement set the utility’s weighted average cost of capital at 9.9%, based on an authorized return on equity of 10.125% and a capital structure of 55% debt/45% equity (providing for an increase in equity over an actual debt to equity ratio of approximately 58% to 42%). The case was filed August 26, 2010, and resolved by settlement announced December 1, 2010, the initial date for hearing on the merits.
  • Representation, as lead counsel, of a transmission and distribution utility in appealing an order by the Public Utility Commission of Texas regarding a change in the interest rate used to calculate a Texas utility’s stranded cost recovery. A PUCT rule setting the formula for this interest rate was amended, effective July 20, 2006. The utility filed an application under the amended rule, resulting in a December 2007 order that the rate should be reduced from 10.93% to 8.31%, on a stranded cost balance in excess of $100 million. In the tariff proceedings that followed, the PUCT entered an October 2008 order making the rate reduction effective retroactively, to July 20, 2006. The utility appealed, contending that rate changes under the amended rule must be implemented prospectively. In September 2010, the district court entered judgment granting the utility’s appeal and reversing and remanding the agency’s decision to set a retroactive effective date. The PUCT and Office of Public Utility Counsel have appealed, and the case is pending before the Austin Court of Appeals.
  • Representation of a wind generation project developer in a proceeding before the PUCT to consider the level of financial commitment to wind power project development in the Panhandle region of Texas. Following the PUCT’s 2010 evidentiary hearing, the PUCT determined that the financial commitment by the client and other developers was sufficient for the PUCT to move forward with routing proceedings and construction of transmission improvements to Panhandle “competitive renewable energy zones (CREZ),” part of the planned $5 billion transmission construction to deliver renewable energy from CREZ zones in western Texas to Texas population centers. This representation was in continuation of the firm’s representation of this developer throughout the PUCT’s proceedings to foster wind power development under the CREZ statute, including the initial proceedings to identify CREZ zones and to set the level of CREZ transmission improvements, as well as proceedings to select transmission providers to build the CREZ improvements. Currently, Jackson Walker is representing the client in an appeal before the PUCT of a 2009 ERCOT protocol revision to the reactive power requirements for both existing and future projects.
  • Representation of several trading and marketing companies audited by the FERC, the PUCT, and/or the SEC following the Enron bankruptcy.
  • Representation of various market participants, including power generators, retail electric providers, and power marketers, in connection with registration, qualification, and filings with the PUCT and ERCOT.
  • Representation of a major retail electric provider before the PUCT in the CenterPoint Stranded Cost and True-Up proceeding. On March 18, 2011, the Texas Supreme Court reversed in part and affirmed in part the Texas Court of Appeals’ ruling and reinstated the PUCT’s ruling (favorable to our client) that certain excess mitigation credits paid to our client while it was an affiliate of CenterPoint could be included in CenterPoint’s stranded cost recovery. The matter is on remand to the PUCT for proceedings consistent with the court’s decision.
  • Representation of a major retail electric provider in various PUCT proceedings to resolve disputes regarding ERCOT protocol revisions, including allocation of local congestion costs and reserve replacement service costs. Our involvement included the docket to resolve a complaint against ERCOT regarding its settlement of reserve replacement service costs, from which an appeal remains pending.
  • Representation of a major retail electric provider in the PUCT contested case proceedings to resolve protocol policy and drafting disputes in preparation for a transition to a wholesale market nodal design.
  • Representation of a major wind power developer in industry-wide PUCT contested case to designate “competitive renewable energy zones” and associated major improvements to transmission grid to move power from wind-rich Texas regions to load centers, pursuant to Texas renewable energy legislation.
  • Advised clients regarding PUCT rules and ERCOT protocols applicable to interconnection agreements, including transmission provider cost recovery matters, contributions in aid of construction under PUCT rules and applicable tariffs, and liability limitation and allocation issues.
  • Representation of a large retail electric provider in various proceedings and matters before the PUCT, including stranded cost proceedings in ERCOT complaint dockets.
  • Representation of a large retail electric provider in PUCT contested case proceedings to enforce Texas Genco’s participation in ERCOT wholesale capacity auctions.
  • In our role as Texas flagship counsel to PNM Resources, Inc., regularly advise affiliates First Choice Power, a retail electric provider, and Texas-New Mexico Power Company, a transmission and distribution utility, regarding planning and compliance issues under restructured Texas market, PUCT rules, and ERCOT protocols.
  • Advised clients regarding comparative price advertising and environmental advertising under PUCT rules and other applicable laws.
  • Representation of clients in connection with obtaining power generation company registration, renewable energy credit generator registration, and other requirements to operate wind power projects in ERCOT.
  • Representation of a large retail electric provider in opposing another retail electric provider’s complaint against ERCOT requesting resettlement of replacement reserve service charges based on a claim that ERCOT misinterpreted the applicable settlement protocols. The PUCT denied the complaint. The complaining retail electric provider appealed the decision, and a Travis County District Court reversed the PUCT. The case currently is on appeal and has been argued before the Third Court of Appeals. Although a number of entities intervened, agreement was reached that the Office of the Attorney General and Jackson Walker would divide the available time for oral argument.
  • Representation of an electric transmission and distribution utility that is owned by a publicly traded diversified energy company in connection with the utility’s deployment of an advanced metering system (Smart Grid). We are representing the utility in its request before the PUCT for approval of an advanced metering system deployment and surcharge, and in connection with its contracts for the procurement, deployment and installation of the smart meters, for wireless communication services, and for managed services for monitoring and the capture and management of data from the smart meters. Jackson Walker is also representing the utility in its defense of a complaint alleging that certain of the smart meters utilized by the utility in its advanced metering system infringe patents held by the plaintiff.
  • Representation of an electric transmission company in connection with the construction of transmission lines and substations for the competitive renewable energy zone (CREZ) transmission projects in the State of Texas to deliver renewable energy from CREZ zones in West Texas to Texas population centers. Our client was awarded approximately 400 miles of transmission lines and infrastructure, constituting the second largest award of the $5 billion CREZ build-out of transmission infrastructure.
  • Representation of a large group of North Texas landowners in a contested case proceeding before the PUCT to determine the routing of a new double circuit 345-kV transmission line. The transmitting utility proposed 96 alternative routes running between an existing and a planned substation as part of a statutory mandate to deliver electric output from renewable energy technologies to geographic areas with significant congestion. With approximately 700 individuals and entities intervening, the transmitting utility represented in post-hearing briefing that this well may be “the most contested transmission line application [it] has ever filed.” A key determination in the proceeding was whether the transmission route should traverse a popular greenbelt recreational area visited annually by more than 7,000 individuals or instead take a significantly longer route around a large lake to avoid a greenbelt crossing. The administrative law judges have issued their recommendation, selecting a route advocated by the firm’s clients. The recommendation was reviewed by the full PUCT at an Open Meeting on February 24, 2011.

Office of Conservation, Louisiana Department of Natural Resources

  • Representation of a new natural gas storage company in all aspects of developing three new depleted reservoir storage caverns in North Louisiana, including helping to structure the regulatory plans for the project, filing and pursuing the necessary permit applications with, inter alia, the Louisiana Department of Natural Resources, the Louisiana Department of Environmental Quality, the FERC, and the Corps of Engineers, drafting the Statement of Operating Conditions filed with the FERC, and filing and prosecuting the application for market-based rate approval from the FERC.
  • Representation of a Texas utility in the regulatory due diligence associated with the potential development of a major salt dome storage facility near Perryville, Louisiana. Work included advice regarding the structure of the business to ensure compliance with applicable FERC and State of Louisiana regulations.

Federal Energy Regulatory Commission (FERC)

  • Representation of a national energy company in the development, permitting and ultimate sale of one of the first natural gas storage facilities to obtain market-based rates from the FERC. Work included obtaining all necessary federal and state permits, and filing for and obtaining market-based rate authority from the FERC, in addition to drafting the Statement of Operating Conditions and shipper contracts, and giving advice on day-to-day legal issues that arose after the caverns were placed into service. On an ongoing basis, represent both NGPA Section 311 and NGA Section 7(c) storage projects in Texas and Louisiana in connection with shipper contracts, the filing of rate cases at the FERC, renewal of permits at the state and federal level, and regulatory compliance matters at the state and federal level.
  • Representation of several trading and marketing companies audited by the FERC, the Public Utility Commission of Texas, and/or the Securities and Exchange Commission following the Enron bankruptcy.
  • Representation of domestic trading and marketing companies in obtaining all necessary authorizations to import and export gas and power to and from Canada and Mexico.
  • Advised major interstate natural gas pipeline client on regulatory and other legal issues associated with client’s use of pipeline right-of-way to install fiber optic cable and institute business plan involving the marketing of telecommunications bandwidth.
  • In connection with the representation of a new natural gas storage company in all aspects of the development of three new depleted reservoir storage caverns in North Louisiana, assisted the client in structuring the regulatory plans for the project, including filing and pursuing the necessary permit applications with, inter alia, the FERC, drafting and helping to negotiate the firm and interruptible storage contracts, drafting the Statement of Operating Conditions filed with the FERC, and filing and prosecuting the application for market-based rate approval from the FERC.
  • Representation of electric utilities in rate and licensing proceedings, as well as enforcement proceedings, arising under the Federal Power Act and PURPA.
  • In connection with a recent FERC investigation, reviewed several hundred transaction confirmations and transaction logs to assist an energy trading and marketing client in its ultimately successful defense of an industry-wide inquiry related to alleged commodity price manipulation.
  • Representation of several trading and marketing companies in obtaining FERC power marketer’s licenses.
  • Representation of a number of major interstate pipelines and gas storage companies in rate and certificate proceedings before the Federal Energy Regulatory Commission, as well as appellate proceedings arising out of agency proceedings.

Legislative

  • On behalf of a power generation and technology foundation, drafted and assisted in the passage of comprehensive power generation legislation that creates significant financial and regulatory incentives for new generation technology and enhances pollution control tax exemptions for existing power generators.
  • On behalf of power generation interests and in support of Exelon’s legislative initiatives, assisted in the passage of tax incentives for nuclear generation and IGCC technology.
  • On behalf of a power generation industry association, helped defeat over 50 bills during the 80th Legislative Session that would have significantly and adversely impacted power generation interests in Texas.

Independent System Operators | Including ERCOT

  • Representation of the Midwest Independent System Operator (MISO), a FERC-sanctioned Regional Transmission Organization (RTO), in proceedings currently pending before and to be filed with the PUCT to investigate and review of the selection of MISO by Entergy Texas, Inc., as its preferred RTO.
  • Representation of electric utility client on restructuring issues arising in the New England Power Pool, including rate issues associated with “reliability must run” status.
  • Representation of a large Texas-based retail electric provider in various PUCT proceedings to resolve disputes regarding ERCOT protocol revisions, including allocation of local congestion costs and reserve replacement service costs. Involvement included docket to resolve a complaint against ERCOT regarding its settlement of reserve replacement service costs, from which an appeal remains pending. Also represented this REP in the PUCT contested case proceedings to resolve protocol policy and drafting disputes in preparation for a transition to a wholesale market nodal design.
  • Representation of clients in connection with obtaining power generation company registration, renewable energy credit generator registration, and other requirements to operate wind power projects in ERCOT.
  • Advised clients regarding ERCOT requirements to do business as retail electric provider.
  • In our role as Texas flagship counsel to PNM Resources, Inc., regularly advise affiliates First Choice Power, a retail electric provider, and Texas-New Mexico Power Company, a transmission and distribution utility, regarding planning and compliance issues under restructured Texas market, PUCT rules, and ERCOT protocols.
  • Advised clients regarding PUCT rules and ERCOT protocols applicable to interconnection agreements, including transmission provider cost recovery matters, contributions in aid of construction under PUCT rules and applicable tariffs, and liability limitation and allocation issues.

Certificates of Convenience & Necessity (CCN)

  • Representation of intervenor retail electric provider in CCN proceedings regarding proposed transmission line to connect Oklahoma coal generating plant to ERCOT grid
  • Representation of landowner in CCN proceedings regarding proposed Dallas area transmission line

Other

  • In connection with one CFTC investigation, we reviewed tens of thousands of e-mails and hundreds of hours of recorded telephone messages, in addition to a normal document review, in order to catalogue relevant information for a successful defense posture
— Attorney News

Meghan Griffiths and Jesse S. Lotay Speak on New Technology Trends in Energy at UT Gas and Power Institute