Energy Markets and RTOs/ISOs

Duane Morris lawyers participated in the creation of the very first Regional Transmission Organization (RTO) more than 20 years ago and have been active in organized electricity markets and RTO issues ever since. These days, RTOs, independent system operators (ISOs) and other similar entities control large portions of the national grid and administer increasingly sophisticated and diverse energy, capacity and ancillary services markets across the country. Our deep knowledge of, and extensive experience in, the formation and day-to-day functioning of these organizations and their centrally administered electricity markets allow us to bring a unique skill set and understanding to our clients’ needs.

For more than two decades, Duane Morris lawyers have represented the Midcontinent Independent System Operator (MISO), one of the largest multistate RTOs, in numerous Federal Energy Regulatory Commission (FERC) and Federal Court of Appeal proceedings. We also help electric industry participants with a multitude of issues that may arise in the footprints of other major RTOs and energy markets administrators, such as: Southwest Power Pool Inc. (SPP), PJM Interconnection LLC (PJM), ISO New England Inc. (ISO-NE) and the Electric Reliability Council of Texas (ERCOT). In addition, Duane Morris energy lawyers have experience with assisting power pool participants with corporate and membership issues. For example, our lawyers represent an organization of electric wholesale market entities that have developed and utilize a standardized power agreement to execute trading opportunities.

Our broad experience allows us to navigate with confidence complex market design issues in RTOs/ISOs, including the development, implementation and enforcement of tariff and market rules and the regulation and pricing of energy and ancillary services. Some examples include:

  • One-of-a-kind and routine generator interconnection issues, including FERC-approved pro forma agreements included in RTO/ISO tariffs;
  • Market rules and energy market tariff compliance and market participant disputes;
  • Transmission planning reform, including regional and interregional transmission cost allocation;
  • Inter-RTO joint operating and “seams” agreements and disputes;
  • FERC’s formal and informal investigations of market practices; and
  • RTO governance, membership and stakeholder process.

The electric power industry and the RTO energy markets are undergoing a rapid change involving the integration of renewable energy resources into the existing markets designs and tariff infrastructure. This area of regulation is becoming increasingly important given the significant challenges confronting organized electric markets, including changes in generation resource mix, reliability and resilience challenges implicated by this transition, and proliferation of different energy market models and arrangements. The electric grid of tomorrow will not look like the electric grid of today, and Duane Morris energy lawyers have the knowledge and experience to guide electric industry clients through this transition.

Federal Energy Regulation

Duane Morris lawyers have broad experience with many types of FERC and other federal proceedings arising under the Federal Power Act (FPA), the Public Utility Regulatory Policies Act (PURPA), the Natural Gas Act (NGA), the Energy Policy Act and many other statutes and regulations governing the energy industries. Our lawyers have played pivotal roles in essential phases of administrative energy policy development since 1978. One of our senior attorneys helped establish the FERC Office of Enforcement and was its first director, and Duane Morris energy lawyers were at the forefront of the major FERC initiatives and rulemakings that reshaped the industry in the past decades, including Order No. 888, Order No. 2000, Order No. 2003, Order No. 890, and Order No. 1000.

Today we continue to be closely involved in various ongoing high-profile federal initiatives that seek to reform the energy industries and chart the course for the future. Our federal energy regulatory lawyers have experience with the following issues:

Electricity

  • FPA Section 205 tariff filings, both helping to develop tariff proposals and amendments for FERC approval and preparing protests and comments;
  • Defense and prosecution of FPA section 206 complaints;
  • Assistance to nonjurisdictional utilities with filings and issues under FPA Sections 210-212;
  • FPA Section 203 applications;
  • Market-based rate applications, exempt wholesale generator (EWG) and qualifying facility (QF) issues and filings;
  • Interlocking directorate filings and other corporate applications; and
  • Formal and informal investigations under Part 1b of the FERC regulations.

Natural Gas

  • Liquefied natural gas (LNG) terminal certification under NGA Section 3;
  • Assistance with LNG compliance issues, both under the NGA and the Deepwater Port Act of 1974; and
  • U.S. Department of Energy LNG export/import permits.

Hydropower

  • Assistance with the licensing and relicensing of FERC-regulated hydroelectric projects;
  • Assistance with license compliance, due diligence and license transfer issues and filings.

Our federal energy regulatory experience is not limited to representing clients solely before administrative agencies. In fact, Duane Morris attorneys assist clients through all stages of administrative litigation, including on judicial review. In recent years, our lawyers represented energy clients in several U.S. Court of Appeal review proceedings involving FERC decisions regarding transmission cost allocation, generation interconnection and FERC-jurisdictional contracts.

State Energy Regulation and Transaction Support

Duane Morris attorneys have significant experience counseling clients on issues associated with all aspects of state public utility regulation and deregulation. Our lawyers handle regulatory proceedings in state public utility commissions related to rate increases, creation and implementation of competitive electricity and gas markets, ensuring nondiscriminatory rates and cost of service in numerous states across our firm’s footprint. We participate in state regulatory hearings and appeals of hearing decisions, provide client input to state energy legislation and regulations, and represent clients in state commission complaint proceedings.

Our clients include distributed energy project developers, retailers of energy and energy services, power authorities, electric and gas marketers to wholesale and retail customers, financial institutions that lend to energy projects and large customers (industrial, commercial, data center, multifamily housing, nonprofit, education and healthcare). We represent developers and end users of energy provided from solar, wind, energy storage, fuel cell, natural gas, biofuel and cogeneration projects, as well as investors in those projects, and provide counseling related to the impact of state regulation on those projects and businesses.

Our lawyers have decades of experience representing competitive electric and natural gas suppliers, utilities, renewable energy developers and commercial customers in complex matters. These attorneys came to Duane Morris with backgrounds useful in assisting our clients, including prior experience at the state public utility commission, state ratepayer advocate, and energy and technology committees of the state legislature. We represent electric and natural gas suppliers of all sizes, from Fortune 200 companies all the way to new entrants to the retail markets, providing assistance with license applications, compliance manuals and regulatory monitoring, complaint and enforcement proceedings, docket advocacy before state public utility commissions, administrative and court litigation, contract drafting and support in mergers and acquisitions. Much of the work we do is national in nature, offering comprehensive coverage of all the competitive retail markets, making Duane Morris a one stop shop for support as companies grow or face novel issues that arise.

Duane Morris attorneys are deeply involved in and committed to the clean energy industry, electric vehicle and energy efficiency markets. This includes representing renewable energy project developers in the green energy space, such as those developing large, utility scale wind and solar projects, battery storage technologies, fuel cells, biofuels and emerging businesses with innovative energy solutions. To assist in the development of the clean energy industry, our attorneys routinely draft and negotiate power purchase agreements (PPAs), engineering, procurement and construction (EPC) contracts, operations and maintenance (O&M) agreements and utility interconnection agreements.

With a deep foundation in the state process, Duane Morris prides itself on counseling clients on deal structures, including addressing aspects that may be important as the project is constructed and operates. For instance, we have experience in metering design, submetering requirements, environmental contamination concerns, real estate rights, tax implications and project finance considerations. Duane Morris has a strong bench in these areas, and our energy attorneys regularly consult with subject matter experts within the firm to best serve the client and offer full-service support in project development.

For More Information

For more information, please contact Ilia Levitine, Alexander W. Judd or any of the practice members referenced in the Attorney Listing.