Holland & Hart lawyers routinely represent clients in a broad array of energy regulatory matters in federal and state agency proceedings, and we have extensive experience in representing clients before the Federal Energy Regulatory Commission (FERC). In addition to providing legal advice and guidance regarding FERC's general regulatory requirements, Holland & Hart brings specific experience with some of the most rigorous and technically challenging expectations of the licensing process.
Natural Gas Pipelines
Our experience touches many regulatory issues, including the evolution of FERC's open access policies in the natural gas pipeline industry as they have developed over the past two decades. We have assisted clients with drafting policies to comply with FERC's Standards of Conduct and project agreements establishing multinational partnership structures to support development of U.S. and international jurisdictional pipeline infrastructure projects. Our lawyers have experience filing petitions and obtaining waivers of FERC's prohibition of tying arrangements to allow gas supply agreements and related firm transportation agreements to be sold to pre-arranged bidders pursuant to FERC-approved auction processes.
Holland & Hart is also actively engaged in power generation and transmission issues throughout the Western United States, and we are playing a leading role in the administrative, legislative, and regulatory proceedings that are reshaping the electric power industry. Our lawyers have participated in FERC proceedings and other forums involving interstate transmission systems in the West. We have also represented clients in FERC transmission rate cases, including issues involving transmission tariffs, cost allocation and rate design, imbalance provisions, and emergency or standby supply charges. Our lawyers have represented large facilities from a variety of industries and obtained, for clients with power generation facilities, certification from FERC as a "Qualifying Facility" or as a registered power marketer.
Hydropower Licensing
Holland & Hart presents a highly effective and efficient legal team for entities entering into the licensing or relicensing process for their projects. Not only does Holland & Hart have the incumbent attorneys for such efforts, we also offer a premier environmental regulatory practice, capable of anticipating and dealing with the challenges that may arise during the licensing process. We have served as regulatory counsel to parties involved in relicensing of the largest FERC-licensed project in the country, two pumped storage projects, several small existing projects and proposed new projects, and the country's first marine hydrokinetic project.
As a national leader in NEPA law and practice, we bring to our hydropower representations a comprehensive understanding of FERC's own rules, and the federal environmental and public-involvement law, NEPA, on which FERC's integrated licensing process is based. Our deep NEPA experience encompasses strategic planning, administration, litigation, and legislation, and it equips us to help our clients shape every step of the licensing process – from pre-licensing planning to post-license litigation and, when needed, successful interaction with Congress.
Our firm specializes in helping clients secure federal approvals and permits that may be controversial and are subject to contested public processes. We have broad, successful experience across the country with virtually every form of inter-agency coordination and public involvement process. Holland & Hart regularly helps clients shape the public and interagency processes to their advantage through strategic planning, precise execution, and comprehensive follow-up. We know where the licensing process can run into difficulty, and we can help our clients avoid surprises and capitalize on opportunities for advantage.
Our team helps tailor stakeholder engagement plans, facilitate timely interagency collaboration, and navigate around sources of delay or risk. We work with transmission developers, pipelines, power project developers, water users, mining companies, and grazing interests, and essentially every other user of publicly managed natural resources.
Shoreline Management Planning
FERC has recently begun placing greater emphasis on the shoreline management plans proposed by hydropower licensees. FERC expects licensees to take a proactive and expansive role in defining, and taking appropriate responsibility for, recreation and other public activities in project reservoirs and surrounding lands. The Holland & Hart team has experience with hydropower project shoreline management planning, including plans for one of the largest and most heavily developed reservoir areas in the eastern United States. We are well prepared to assist clients with shoreline management issues raised in the licensing process.
Broad Support
In addition to our specialized experience with natural gas pipelines and hydroelectric projects, Holland & Hart lawyers provide energy clients with broad support in the areas FERC regulators scrutinize in the course of evaluating compliance.
Protected Species
Holland & Hart offers a nationally preeminent practice in the area of protected species. We regularly represent energy sector clients with matters stemming from the Endangered Species Act, Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, and Fish and Wildlife Coordination Act. We have helped clients negotiate habitat conservation plans, incidental take permits, compensatory mitigation plans and other arrangements with the U.S. Fish and Wildlife Service, NOAA Fisheries, U.S. Forest Service, Bureau of Land Management, National Park Service, and state agencies.
Federal Rights-of-Way and Special Use Permits
Holland & Hart supports clients with comprehensive understanding of relevant forms of federal land use agreements and permits, including Special Use Permits, right-of-way agreements, wetlands permits, and land exchanges. We know the law behind federal land use agreements and, equally important, we know how federal agencies negotiate and seek to leverage their positions in FERC and other regulatory proceedings. We help clients minimize or avoid the delays and unreasonable agency expectations and proposals often associated with federal land use permitting.
Cultural Resources
Holland & Hart's team includes leading practitioners in the area of cultural resource conservation. We regularly work with energy clients to shape and complete the consultation process under Section 106 of the National Historic Preservation Act (NHPA). We interact frequently with the federal Advisory Council on Historic Preservation (ACHP) and the state historic preservation officers from across the country, and we are well aware from recent experience that the ACHP is increasing its involvement with energy facility siting decisions. The rules of the NHPA "consultation" process are evolving, as the ACHP becomes more aggressive in applying its regulations to energy projects. Holland & Hart is well prepared to help manage the process to avoid the delays, unreasonable exactions, and other problems often associated with the NHPA consultation process.
Administrative Litigation
As with many regulated industries, representation of clients in administrative litigation matters is critical. Our lawyers have managed major rate case litigation for interstate pipelines, including cases involving:
- Significant FERC policies requiring restructuring of an interstate pipeline to facilitate open access;
- Evolution of FERC's policies related to allowed rate of return on equity, including related challenges in the United States Court of Appeals;
- Litigation of various cost recovery issues in the context of base and test periods before FERC and in the United States Courts of Appeal;
- Postage stamp verses mileage-based rate design for transportation rates;
- Implementation of Straight-Fixed Variable rate design, including analysis of possible mitigation measures for customers being adversely affected by shifting away from Modified-Fixed Variable rate design;
- Establishment of term differentiated rates for contract term extensions;
- The use of levelized and negotiated rates to provide markets supporting new infrastructure projects a more economical rate alternative; and
- Federal preemption of local governmental requirements that would otherwise stand in the way of construction of federally certificated pipeline projects.
Appeals
Holland & Hart also has experience with FERC matters before the Tenth Circuit Court of Appeals. For example our lawyers have:
- Achieved a determination of non-jurisdictionality for significant gathering assets in representing a natural gas pipeline in proceedings before FERC and the Tenth Circuit Court of Appeals;
- Successfully facilitated end-use customer direct access to interstate pipeline systems in the face of "bypass" challenges brought by local distribution companies in proceedings at FERC and the Tenth Circuit Court of Appeals; and
- Filed applications to secure certificates of public convenience and necessity to allow construction of major pipeline expansions, including successful defense before FERC and the Tenth Circuit Court of Appeals of required, supporting environmental impact statements.
Our team is dedicated to finding innovative solutions for our energy industry clients. For example, our lawyers have proposed unique partnering agreements between pipelines and customers to support jurisdictional infrastructure developments through passive ownership arrangements. We also successfully sought a pre-determination of rolled-in rate treatment coincident with pursuing a pipeline certificate application for infrastructure expansion which resulted in FERC embracing a new policy that affords certificate applicants guidance on proposed rate treatments prior to the commencement of construction on significant pipeline projects.
