Schiff Hardin assists companies throughout the energy industry — companies from traditional electric utilities to municipal and cooperative electric suppliers, electric “merchant” generators, electricity and natural gas marketers, natural gas and petroleum pipelines, natural gas processors, and natural gas local distribution companies (LDCs) — meet the challenge of complying with changing market rules, evolving compliance obligations and potential enforcement actions.
Our representation includes all facets of federal and state regulatory law, including Federal Energy Regulatory Commission (FERC), Department of Energy (DOE), Illinois Commerce Commission (ICC), Commodities Futures Trading Commission (CFTC) and federal and state courts.
In addition to federal and state regulatory and transactional work, we provide energy companies with integrated legal services covering a wide range of areas, including multi-state regulatory strategy, corporate and securities, derivatives and swaps, construction, environmental law, labor, litigation, mergers and acquisitions, and finance.
Our clients include not only energy companies but those that do business with them —banks, lenders, insurance companies, investment companies, private equity and hedge funds, and other clients with interests in the energy industry.
Our construction and environmental practice groups in particular often counsel companies involved in building energy infrastructure and on environmental permitting and compliance matters.
Schiff Hardin lawyers know how to work strategically with inside counsel as several of our lawyers have served as inside counsel for energy companies. Our partners have served as general counsel and deputy general counsel for energy companies and have worked closely with both large and small in-house legal staffs. Through this experience, we have acquired a deep understanding of the energy industry and an appreciation of the timing and budget pressures facing in-house counsel. Our experience aids our appreciation of our clients’ perspectives, making us more responsive to client needs. It also helps us understand how to work strategically with other law firms and company advisors when acting as outside counsel.
Federal Energy Regulation and Advocacy
We assist clients in all sectors of the energy industry understand, implement and shape federal energy regulations.
We have extensive experience in all areas of federal electricity regulation before FERC, the Department of Energy, the courts and other agencies, including:
- Formation and operation of regional transmission organizations (RTOs)
- Wholesale market-based rates
- Transmission service and rate matters
- Transmission rate design
- Formation and design of competitive energy and ancillary services markets
- Mergers and acquisitions
- Interconnection of transmission and generation facilities
- Power supply contracts
- Hydroelectric licensing
- Compliance with FERC Standards of Conduct and Code of Conduct requirements
- Public Utility Regulatory Policies Act (PURPA) and qualifying facilities (QF) issues
- Public Utilities Holding Company Act of 2005 (PUHCA)
- FERC and CFTC compliance and enforcement programs
- Merchant transmission matters
- Organization of for-profit independent transmission companies.
Natural Gas Industry
Our federal natural gas regulatory experience encompasses the full range of FERC and Department of Energy proceedings, including:
- Rate and tariff proceedings
- Complaint proceedings
- Enforcement actions
- Judicial review
- Compliance counseling and training
- Supply and contract negotiations
- Affiliate transactions
- Certificate applications
- Natural gas import authority
Schiff Hardin attorneys have been involved in major energy legislation passed by Congress, including the landmark Energy Policy Acts of 1992 and 2005 that set the foundations for many of the electric industry policies of today.
Our keen understanding of the legislative process allows us to help clients navigate the administrative process behind the development of many policy initiatives. We have worked with policy makers in all aspects of the policy development process, helping clients participate in every phase of the rulemaking process.
State Utility Regulation and Advocacy
We have represented a wide range of energy industry participants in proceedings before state regulatory commissions across the country, including those in Colorado, Illinois, Massachusetts, Maryland, Nevada, New Hampshire, New York and Texas.
Schiff Hardin has extensive experience representing electric and gas utilities before the ICC. In addition, we are often retained by out-of-state entities as special Illinois regulatory counsel to advise on regulatory implications and requirements for entities considering energy projects, mergers, acquisitions, investments or strategic combinations in Illinois.
We represent electric and gas utilities in:
- Rate cases
- Tariff proceedings
- Fuel and purchased gas adjustment clause proceedings
- Certificate proceedings for natural gas and electric infrastructure
- Debt and equity financings
- Sales and transfers of assets
We also have extensive experience representing regulated companies in appeals of ICC decisions, and have obtained reversals of ICC decisions on behalf of our clients in numerous cases.
Our advocacy for clients extends to representing utilities in legislative matters relating to regulation, restructuring and state taxation. One of our partners was a principal negotiator and draftsperson of Illinois’ 1997 electric utility industry restructuring law.
Compliance and Enforcement
Our Energy Compliance and Enforcement practice is dedicated to helping energy companies meet the challenges of today’s constantly evolving regulatory environment, offering compliance, investigation, negotiation and litigation capabilities along with comprehensive guidance about FERC, North American Electric Reliability Corporation (NERC), and Commodity Futures Trading Commission (CFTC) requirements that affect their businesses.
We have prepared compliance programs that have helped companies throughout the energy industry minimize risk, developing customized training materials and conducting on-site training programs focused upon a variety of FERC, NERC, and CFTC compliance issues.
Our attorneys have been at the forefront of the development and evolution of the relatively new NERC and CFTC (post-Dodd-Frank) regulatory regimes. With attorneys who served in in FERC’s Office of Enforcement, as well as a former Chief Trial Attorney in the CFTC’s Division of Enforcement on our team, we are able to offer highly informed advice on all aspects of this regulation.
Energy Markets and Transactions
Competitive electric markets are a driving force in the wholesale exchange of energy and capacity across the country, and we bring a wealth of knowledge and decades of experience to help our clients succeed in this changing marketplace.
We regularly advise FERC-jurisdictional utilities and non-jurisdictional utilities, helping them navigate cutting-edge regional transmission organization (RTO) markets and the FERC regulations governing those operations. We provide comprehensive guidance to clients seeking to join an RTO or independent system operator (ISO), as well as to non-members that regularly interact with energy markets.
The way utilities and large loads purchase their power and develop their generation resources is also being transformed. Successful transactions require knowledge and experience in the commercial, financial, regulatory and environmental rules, regulations and practices driving energy markets.
We have decades of experience representing merchant power producers. We have represented power producers in a broad array of areas including environmental, construction, project finance, power purchase agreements, litigation, state and federal regulation (including with respect to power purchase agreements, transmission and capacity markets) and bankruptcy.
We offer our clients a team of transactional, regulatory and environmental lawyers working together to provide complete assistance in the structuring of power purchase transactions and the development of projects for new resources.
Energy companies and market participants are also subject to new CFTC regulations under the Dodd-Frank Act. Those rules have significant direct and indirect effects on the ways energy market participants engage in physical commodity transactions and hedge their risks using derivatives and swaps. We advise and represent companies using swaps and futures in oil, gasoline, natural gas, propane, and electricity with respect to these requirements including, e.g., whether an entity qualifies for end-user exemption, the forward exclusion from futures and swaps, or may be subject to the new manipulation or anti-evasion provisions of the Commodity Exchange Act.
A Strategic Approach to Litigation
Our litigators are nationally recognized for their representation of public utilities, independent power producers, transmission system operators, electric power co-operatives and natural gas producers, pipeline and marketing companies, in federal and state courts, in arbitrations and mediations, and before the Federal Energy Regulatory Commission and state regulatory commissions across the country.
We aggressively and successfully resolve high-stakes litigation through the design and successful implementation of strategies that account not only for the strengths of our clients’ legal positions, but also for federal and state administrative regulatory schemes, and public relations concerns, that affect business operations in an increasingly competitive energy industry that is tilting toward greener sources of production.
The firm is a leader in meeting the environmental legal needs of companies in the energy sector. We serve the electric, oil, chemical, and natural gas transmission and distribution industries. Our environmental team consists of more than 20 attorneys dedicated exclusively to environmental law, including several who previously held senior government positions in environmental enforcement and policy, giving us keen insight in this arena. It is an experienced team with strong capabilities in compliance counseling, permitting, transactional, rulemaking, rule variances and significant high stakes enforcement litigation. We support major infrastructure projects such as cleanups of the nation’s waterways, modernization of the Grid, and modernization and expansion of the interstate pipeline system. Our lawyers are often consulted to provide strategic advice to leaders in the energy industry as they navigate the uncertainty of this transformational time. Representative engagements include:
- We support infrastructure projects involving the construction of new and the modernization of existing power plants, as well as decommissioning power plants at end of life.
- We assist with infrastructure projects involving the construction of new and the modernization of existing interstate gas pipeline assets, including securing and defending natural resource permits and approvals.
- We help obtain construction and operating permits, and defend them from challenges brought by environmental activist and community groups.
- We defend clients in environmental enforcement litigation brought by federal and state government actors as well as non-governmental organizations (NGOs) who represent a growing force in advancing permit challenges, influencing government decisions and or initiating lawsuits.
- We represent numerous energy and non-energy companies with New Source Review (NSR) compliance counseling, permitting and enforcement cases across the country, including assisting clients with permitting for projects to construct new and upgrade existing energy facilities.
- We represent clients facing high-stakes liabilities in CERCLA cost recovery and enforcement cases involving contaminated sediments in major waterways across the country, helping effect cleanups as well as pursuing others for contribution.
- We advise and assist our clients in understanding proposed environmental rules and participate in rulemaking proceedings at the state and federal levels.
- We help clients obtain relief from rules, including through variance, adjusted standard and other rule amendment proceedings.
Comprehensive Legal Support for Energy Companies
Like all businesses, energy companies face a range of corporate issues. Schiff Hardin provides interdisciplinary support to help our energy clients meet every challenge.
For more than two decades, Schiff Hardin’s Construction Law Group has counseled utilities and energy-related business and on procurement, contracts, project controls, construction disputes and regulatory issues that accompany energy construction projects. While producing and selling energy is primary, the physical plant is an integral and necessary element of our clients’ business.
Our construction attorneys develop effective and creative strategies to assist our energy clients in construction projects of all types, including FGD systems, SCR systems, HRSGs, gas and steam turbines, water and sewage treatment systems, boilers, control systems, wind, solar, and nuclear systems. For these projects, we specialize in the following:
- Procurement and Contract Negotiation We work to develop and implement robust procurement procedures to enable our clients to select the right contractors for the project at hand. This includes preparing and negotiating the construction contracts so to best protect our clients business and legal needs.
- Project Controls; Once the project is underway, we offer specialized project controls designed to principally monitor the projects schedule and costs. Bringing in major capital projects in on-time and on-budget is our primary goal.
- Regulatory Consulting We offer guidance for construction-focused rate cases where the issues raised are outside of those found in a traditional energy rate case. Our attorneys assist in developing specific regulatory plans for construction projects, monitor those projects to help mitigate problems before they arise, and then counsel our clients through the rate case process for a successful recovery.