Practice/Industry Group Overview
Our lawyers who practice in the energy, telecommunications and water industries provide a wide range of legal services based upon many years of experience representing major utilities in the Northeast.
Our Energy and Utility Law practice group has been at the forefront of the energy industry restructuring. We have helped our clients throughout North America navigate critical restructuring issues that define their evolution and identity in the changing world of energy purchase and supply, including issues of:
- Wholesale market design, operation and participation
- Retail electric restructuring and deregulation
- Development and finance of new generation
- Transfers of existing fossil, nuclear, hydroelectric and other renewable generation
- Natural gas
- Nuclear power in the evolving marketplace
- Stranded cost securitization
- Market participant workouts and bankruptcies
- Siting, environmental regulation and land use
- Creation of new organizational vehicles to drive electric industry restructuring, such as Independent System Operators, Regional Transmission Groups, Regional Transmission Organizations and stakeholder boards
- Mergers, consolidations, reorganizations and divestitures
- Financing of energy companies
- Corporate governance
- Litigation, antitrust and alternative dispute resolution of complex energy issues
We have advised clients on energy project development internationally and energy restructuring matters in the West, Southwest, Southeast, Midwest and Northeast regions of the United States; represented the interests of energy clients before the Federal Energy Regulatory Commission and other federal regulatory bodies in Washington, D.C.; and conferred with federal and state legislators, policymakers and lobbyists on behalf of those clients.
Our attorneys have been at the leading edge of issues related to the nuclear energy industry throughout its evolution. We have guided utilities in major transactions and strategic planning and in complex federal court litigation and rate matters before federal and state agencies. Our work has encompassed plant selection, siting, procurement, structuring of ownership and operating entities, licensing and construction issues, federal regulation, operational issues, prudence reviews, decommissioning, Price Anderson Act issues, federal pre-emption, NRC and industry assessment of performance and litigation. We have also assisted in the purchase and sale of multiple nuclear facilities.
We have worked on numerous nuclear projects, including Bruce, Callaway, Comanche Peak, Connecticut Yankee, Davis Besse, Diablo Canyon, Maine Yankee, Millstone, Montague, Nine Mile Point, Seabrook, South Texas Project, Summer, Vermont Yankee, Wolf Creek and Yankee Rowe. Our attorneys have represented American Nuclear Insurers in various matters, including litigation arising out of Three Mile Island.
Wholesale Market Design, Operation and Participation
Over the past decade, our energy lawyers have been on the cutting edge of electric deregulation. In the area of wholesale market design, operation and participation, we have served as general counsel to the New England Power Pool (NEPOOL) since its formation in the early 1970s. We have assisted NEPOOL, which comprises virtually all of the participants in the New England bulk power industry, in all aspects of its operations. We played a central role in the restructuring of NEPOOL, including the negotiation and documentation of a region-wide open access transmission tariff and the establishment of restructured wholesale power markets with market-based pricing. We advise NEPOOL on modifications to the applicable transmission and market tariff provisions and the ongoing operation of the power markets in New England. We have been involved with the implementation of a congestion management system for optimizing the limited capacity on the regional transmission system and a two-part market settlement system, and in the identification of acceptable market arrangements for resource adequacy in New England. We also have significant experience negotiating and documenting large power supply arrangements involving system power sales, such as the seven terawatthours-per-year purchase agreement between a group of electric utilities and Hydro-Quebec, and bilateral power contracts involving nuclear, fossil and renewable facilities.
We also were key participants in the development of RTOs in New York and New England pursuant to Order No. 2000 and in the proceedings that led to FERC's open access, standards of conduct and generator interconnections rules, reflected in Order Nos. 888, 889, 2003 and 2004. We have been involved actively in FERC's efforts to restructure the Midwest-PJM super region by eliminating through-and-out rates, dealing with grandfathered agreements and implementing a competitive market. We participated in FERC's proposed wholesale markets standardization rulemaking, as well as in FERC's effort to merge the New England, New York and PJM ISOs. We also spearheaded a coalition of IOUs in FERC's open-access rulemaking and served as lead counsel to the IOUs that petitioned the Court of Appeals to review Order No. 888.
We have advised Canadian utilities on the formation of an ISO in eastern Canada and on FERC's standards of conduct. Our energy team assisted several IOUs with reformation of individual utility tariffs to coordinate with regional tariffs. Our attorneys also developed protocols and a tariff for the Arizona Independent Scheduling Administrator Association and advised a power exchange with respect to its rate design to obtain FERC approval.
Retail Electric Restructuring and Deregulation
Over many decades, we served as the principal outside counsel to Northeast Utilities, the largest electric utility in New England. In this capacity, we have represented NU in virtually all aspects of its business, most recently in connection with evolving electric industry restructuring and deregulation in Connecticut, Massachusetts and New Hampshire. We have assisted in defining restructured retail markets, drafted restructuring legislation and participated in hearings to quantify stranded costs, assisted in NUs divestiture of its nuclear assets and competitive businesses, including its competitive generating assets and wholesale and retail marketing and energy services businesses, and supported the establishment of standard offer/default service and unbundled rates. In addition, our broad-based regulatory knowledge has been a valuable tool in our representation of large industrial consumers in multijurisdictional energy cost reduction strategies. In addition, we have developed retail access programs for host utilities, represented ESCOs seeking to serve retail load and negotiated agreements to be used when acquiring power supplies at market-based rates to serve standard offer (i.e., provider of last resort) customers.
Development and Finance of New Generation
We counsel developers, contractors, utilities and institutional investors involved in the development and financing of new power generation nationally and internationally including, for example:
- The developers of multiple gas-fired units in Massachusetts, Vermont and Maine
- The equity investors in the development of a gas-fired project in Tucuman Province, Argentina
- An equipment vendor and equity investor in a trash-to-energy project in Michigan
- An equipment vendor and the equity investors in their efforts to develop a mine-mouth generating project in Heilonjong Province, China
- The lenders to 24 landfill gas projects in eight states in the Northeast, Midwest, South and Southwest United States
We have been involved in the development, procurement, financing and operation of projects using traditional fuels and alternative power sources such as wind, solar, landfill gas and fuel cells. We have drafted and negotiated numerous operating, fuel supply, offtake and financing arrangements in connection with these projects.
We have worked side by side with utilities in rate proceedings before state agencies and the Federal Energy Regulatory Commission to establish fair and consistent rate structures while effectively balancing complex legal, public interest, economic and accounting issues. With our help, clients have achieved favorable outcomes through diligent representation before rate commissions and through strategic changes in laws and rules. Our attorneys have been involved in every type of rate proceeding from traditional rate cases to rulemakings to prudence investigations.
Our attorneys are also well known for their representation of clients in the natural gas area. We have the skills required to effectively represent clients both in a traditionally regulated environment and in today's more competitive setting as electric and natural gas markets converge. Our attorneys were part of the FERC team that drafted the regulations that resulted in the restructuring of the natural gas industry. We have represented clients in proceedings that resulted in FERC issuing Order Nos. 436, 636 and 637 and the aftermath as the natural gas industry deregulated, unbundled production and transportation service, and implemented new storage and transportation services. We also were actively involved in the certification and siting of new natural gas pipeline transportation and distribution facilities, representing clients before federal and state regulatory agencies. We also have handled significant rate proceedings before federal and state regulatory agencies. We have handled significant natural gas enforcement matters, and were actively involved in the California proceedings involving allocation of capacity on the El Paso Pipeline. Our attorneys are frequent speakers on natural gas and liquefied natural gas regulation.
Some of the matters we have handled include:
- Represent interstate pipeline company on issues related to capacity release
- Represent natural gas producer on issues related to production and exploration
- Represented Kansas Pipeline Company in all matters before FERC, including certificate proceedings and a four-month contested rate proceeding
- Represented interstate pipelines in federal and state proceedings
- Represented interstate pipelines in the sale, acquisition and development of interstate and intrastate pipeline facilities
- Represented domestic and Canadian producers of natural gas and oil in matters before FERC
- Represented the Province of Alberta and the Government of Canada on issues relating to the importation of Canadian gas
- Represented natural gas marketers in contract negotiations
- Represented industrial and commercial end users in natural gas purchasing matters, contract negotiations, and in matters before federal and state regulatory agencies
- Represented landowners and the State of Alabama in issues relating to the construction of the interstate pipeline facilities
- Represented natural gas pipelines and electric utilities in matters before federal and state regulatory agencies
Environmental and Land Use
We have broad experience with the siting, environmental and land use issues relating to the energy industry. In this regard, we have helped our clients:
- Secure environmental permits for air emissions, water discharges and water diversions associated with the construction and operation of generating facilities
- Acquire certificates of environmental compatibility from state siting boards and councils
- Obtain approval for dredging, fill and other wetland-related activities from the Army Corps of Engineers
- Respond to opposition from interested environmental groups
- Implement a multistate emissions reduction credit auction
- Respond to the federal government's investigation of environmental issues and negotiate a resolution of those issues
- Resolve enforcement actions by state and federal regulatory agencies
We have successfully counseled clients in the siting, construction, operation and transfer of electric, gas and water companies while both complying with environmental and land use laws and satisfying the demands of regulators and the public.
Creation of New Organizational Vehicles
Few firms can match our experience in the creation of new organizations in connection with wholesale electric industry restructuring. Over the past 30 years, we have formed NEPOOL, one of the first "tight" power pools in the country, restructured it to include a regional transmission group and independent system operator in response to Federal Energy Regulatory Commission Order 888, reformed and refined its governance processes to make them more inclusive and created stakeholder boards to address issues related to the reliability of power supply, transmission arrangements and market design and operation and further restructured NEPOOL into a regional transmission organization in response to FERC Order 2000. In these engagements, we have dealt with both the difficult business and regulatory issues that arise and the governance and political issues that must be addressed to create and maintain functioning organizations.
Mergers, Consolidations, Reorganizations and Divestitures
Our attorneys have extensive experience with corporate restructuring of utilities and other energy companies, advising clients on legislation and state restructuring proceedings and FERC merger policy, as well as developing strategies and implementing plans for clients participating in the restructuring process. We also have widespread experience with the divestiture of a diverse portfolio of generation assets (consisting of fossil, nuclear and hydro units) via auction and in obtaining the requisite FERC and state approvals for such sales.
In addition, our attorneys have had intimate involvement in the Hart-Scott-Rodino review of utility mergers, purchases and sales. These experiences include:
- Representing Northeast Utilities in state regulatory proceedings involving its proposed merger with Consolidated Edison.
- Representing Northeast Utilities in its acquisition of Public Service Company of New Hampshire, one of the first and most complex large electric company acquisitions.
- Acting as New England regulatory counsel for NiSource in connection with its acquisition of a local gas distribution company in Massachusetts, New Hampshire and Maine.
- Representing Northeast Utilities in connection with various acquisition activities, including its sale and later acquisition of Yankee Gas Company.
- Representing intervenors opposed to the merger of Entergy and FPL Group before the Federal Energy Regulatory Commission, three state regulatory commissions and the New Orleans City Council.
- Representing Select Energy in the divestiture of its wholesale and retail marketing businesses and energy services businesses.
- Representing sellers of nuclear, fossil and hydroelectric generating assets.
We have experience with the various regulatory and documentation issues that arise in these matters and can help bring transactions to a successful closing.
Financing of Energy Companies
As a firm with nationally known practices in the areas of energy law and institutional finance, we have a broad and unique experience in the area of energy finance. We have represented both lenders and borrowers in all varieties of financing transactions, from typical unsecured credit lines and mortgage bonds to more sophisticated transactions such as nuclear fuel leasing facilities and tax-exempt industrial development bonds. We have been counsel in financings involving electric, gas, water and telecommunications utilities as well as less typical utility entities such as broadband service providers and transoceanic cable companies. Our special experience in the many substantive areas implicated in these matters makes it possible for our lawyers to participate in every aspect of these transactions, including the negotiation and documentation of the financing arrangements, obtaining the requisite regulatory approvals and advising on specific tax and security law issues.
Our energy team includes a former IOU general counsel with 15 years' experience counseling its Board of Directors on a wide range of matters, including shareholder lawsuits, SEC obligations, internal investigations, corporate compliance programs and fiduciary duties. The firm's energy clients also benefit from Day Pitney's broad experience in handling governance issues and related litigation in other industries.
Litigation, Antitrust and Alternative Dispute Resolution
Our attorneys have extensive experience litigating energy matters in state and federal courts, including bankruptcy court. We also have represented nuclear and fossil plant owners in litigation against vendors.
We have drafted complex alternative dispute resolution provisions in documents, created organizations to administer those provisions, represented litigants in those proceedings and acted as neutrals in dispute resolution. Our firm's extensive experience in the area of complex litigation combined with our national experience in energy-specific matters create a combination that serves our clients well as they attempt to resolve complicated disputes in the energy field.
Our lawyers bring extensive experience from a variety of disciplines to provide cutting-edge service to our telecommunications clients. Virtually all of the participants in traditional telecommunications companies, as well as in related media, information and interactive services, are undergoing profound changes occasioned by both the exponential growth in new technologies and by significant new legal developments. We have a thorough understanding of and an appreciation for the nature of these businesses and the special legal challenges they face. This familiarity enables us to provide our clients with creative, practical advice designed to solve problems, advance transactions and close deals.
Our clients in the telecommunications industry include:
- Major regional telephone companies
- Cellular telephone companies
- PCS providers
- Wireless and cable subscription television operators
- International satellite telecommunications companies
- Television and radio stations
- Subscription television content providers
- Internet companies
- Equipment and technology providers
- Institutional investors and lenders
In addition to our transactional and regulatory work in the telecommunications field, we provide our clients with related advice in connection with mergers and acquisitions, financing, contract negotiations, corporate, tax, intellectual property, securities regulation, labor and employment, governmental relations and antitrust matters. We also regularly represent other important participants in the telecommunications industry such as lenders and investors providing debt and equity capital, companies providing equipment and technology to telecommunications companies and large users of telecommunications services in negotiations with service providers.
Some of the matters we have handled include:
- Serving as general outside counsel for a multiservice territory cable television company with approximately 250,000 subscribers. Our work includes representation of the companies in connection with corporate financing, franchise and other regulatory matters pending before the Connecticut Department of Public Utility Control (DPUC) and in the courts.
- Representation of major national cable providers in their acquisitions of a local Connecticut cable company, as well as serving as local regulatory counsel in aspects of company reorganizations, dispositions and acquisitions involving numerous other media companies. We have also represented major national cable providers in franchise and financing matters before the DPUC and in the courts.
- Service as Connecticut counsel for the acquisition of local cable operations by a national communications company, and, prior to that, disposition, represented the local cable operator in regulatory, franchising, tax and employment matters.
- Service as general counsel for a 50,000-subscriber, independently owned cable system serving parts of Connecticut and Rhode Island, including all state regulatory matters.
- Representation of a large national cellular telephone provider in proceedings before the DPUC and the Federal Communications Commission that achieved statewide cellular deregulation, and in defending that result against an appeal by the Connecticut Attorney General to the Second Circuit. We have also represented the provider in tariff proceedings for interconnection with land-line carriers and in a state appeal of those tariffs by a paging company.
- Representation of Fortune 500 corporations and other large end-users in negotiating global telecommunications service agreements with the major interexchange carriers and PTTs.
- Representation of the country's largest MMDS telecommunications company in its acquisition by a national communications company in a transaction valued at more than $600 million.
Our firm serves as principal outside counsel to the largest private water company in New England, providing this client with legal assistance relating to every aspect of its operations. We represent water companies in state regulatory proceedings and before state and federal courts. We have also represented water company clients in numerous complex transactions, including mergers and acquisitions, rate design and finance transactions. We provide water companies with advice regarding water quality and environmental regulations, real estate acquisitions and sales, labor and employment issues and tax matters.
Some of the matters we have handled include:
- Representation of largest investor-owned Connecticut water company before the DPUC in connection with its acquisition by a foreign water company.
- Representation of a Connecticut water utility client in connection with the largest sale on record of water company land.
- Various proceedings before the DPUC involving water company rates, financings and contracts.
- Representation of a water utility on all aspects of several acquisitions of small water utilities for cash.
- Representation of a water utility on all aspects of acquisition of two water utilities (one in Connecticut and one in Massachusetts) for stock, including registration of stock with SEC.
- Representation of a Native American tribe in connection with its acquisition of a small water utility.
- Representation of Connecticut water utilities in connection with establishing service protection plans offered to customers to cover costs of service line breaks, etc., including development of the plan and documentation relating thereto.
- Representation of water utilities in negotiation of various contracts relating to extension of water service to developers, etc., including representation before DPUC with respect to obtaining approval of those agreements and/or disputes thereunder.
- Representation of a water utility in connection with the negotiation and implementation of contracts for outsourcing of various services.
- Advise water utilities on various legislative issues, including an analysis of the impact of proposed legislation on water utilities and consideration of amendments thereto.