Practice Leader: Larry F. Eisenstat
Dickstein Shapiro’s multiservice domestic and international Energy Practice offers comprehensive “soup-to-nuts” services to the broad range of companies seeking to develop, finance, operate, acquire, sell, or manage large energy infrastructure projects, such as power plants, transmission lines, pipelines, and water desalination plants. The Practice has second-to-none capabilities and experience, particularly with respect to federal and state electric and gas regulation and domestic and international energy transactions, litigation, compliance, and enforcement matters. The Firm’s clients are engaged in all aspects of electricity and natural gas production, trading, transmission, and distribution. They include competitive power producers, integrated utilities, natural gas and petroleum pipelines, natural gas storage providers, LNG developers, energy marketers, trade groups, financial institutions, energy consumers, governmental entities, and others. The Firm’s work ranges from the acquisition, sale, financing, and structuring of U.S. and international energy companies and energy assets to the development, construction, operation, and restructuring of conventional and renewable generating facilities, natural gas pipelines, gas storage facilities, and broadband-over-power-line systems. The Firm also represents suppliers and purchasers of water, water treatment services, and desalinized water in connection with project permitting and financing, construction, contract negotiations, and ongoing operational issues.
Dickstein Shapiro is recognized as a leader in providing high-quality legal advice and services to its energy industry clients. The 2007 edition of Chambers USA described Dickstein Shapiro’s Energy Practice as follows: “This ‘young, enterprising practice’ is a byword for creativity, market sources report. This is particularly evident in its representation of independent power plant owners. Serving developers, utilities, and private equity groups, the team handles trading emissions; compliance; corporate finance; and FERC and state commission litigation. Its ‘razor-sharp’ lawyers make for ‘supremely tough litigators.’” According to the 2008 guide, “Clients praised the lawyers’ ‘responsive, timely, high-quality work’ and ‘excellent strategic planning—they understand how the regulatory side affects investment.’ In litigation, the team is renowned for its hard-hitting style: ‘They quickly grasp the technical aspects, say something in 20 pages rather than 200 pages, and just go for it’ . . . Other impressive features that appeal to clients include having ‘the ability to do what they say they will, and do it within budget,’ and the presence within the team of non-lawyer industry experts such as economists.” It ranks among the top firms chosen by energy suppliers and their primary counsel (“Utilities Primary Law Firms”), among the top firms selected by utilities companies (“Utilities Recommended Law Firms”), and among the top firms that clients identify as being on the “short list” of law firms they would consider (“Utilities Short Listers”), as reported by the BTI Consulting Group in its 2006 Client Relationship Scorecard for Law Firms, a survey based on interviews with more than 1,000 Fortune 1000 general counsel and key decision makers responsible for retaining outside legal counsel. In addition, both the Firm and various Energy Practice attorneys individually have been consistently recognized in the editions of The Best Lawyers in America, Chambers USA, and Chambers Global in the Energy: Electricity practice area.
Dickstein Shapiro maintains a comprehensive energy regulatory practice. In addition to the types of matters described below, the Firm assists clients on a wide variety of regulatory issues, ranging from routine to complex, before the Federal Energy Regulatory Commission (FERC), the Department of Energy (DOE), and other federal and state commissions. These matters pertain to, among other things, obtaining approval of transmission and sales tariffs; requests for proposals; rate cases; market power studies and triennial updates; dispositions of jurisdictional assets; negotiation and regulatory approval of reliability must-run (RMR) contracts; approvals of affiliate sales; the negotiation and drafting of engineering, procurement, and/or construction (EPC), generator interconnection, and other project agreements; the rules and pricing for station power delivery service; tariffs for reactive power compensation; exempt wholesale generator status approvals; qualifying facility certification; regulation of distributed generation; construction of transmission, generation, pipeline, and gas storage facilities; local distribution company bypass; stranded cost recovery; franchise exclusivity; eminent domain and utility rights-of-way; retail access rules; public notice and electronic bulletin board requirements; standards of conduct; codes of conduct; interlocking directorates; and prudence issues. By virtue of its decades-long experience in representing both existing and new electric and gas suppliers, transmission operators, developers, and numerous other energy industry participants, the Firm is uniquely positioned to help its clients negotiate the full range of electric and natural gas supply, transportation, interconnection, and other commercial arrangements. Additionally, the practice has experience navigating the ever-changing regulatory environment and the new and often complex and uncertain rules and structures that are so common in today’s energy industry.
The Firm’s Energy Practice involves the representation of energy companies, lenders and investors in connection with the acquisition, sale, and financing of energy companies and energy assets; the structuring and development of energy projects; the drafting and negotiating of all types of energy-related contracts; and the obtaining of governmental approvals for the development, construction, operation, and restructuring of energy and other infrastructure projects. The Firm’s practice includes both domestic and international transactions and involves companies and facilities engaged in the generation, transmission, and distribution of electricity; the production, storage, transmission, and distribution of natural gas; the liquefaction, storage, shipment, and regassification of LNG; and the treatment, processing, and desalination of water for consumption and cooling.
Dickstein Shapiro is in the vanguard of the burgeoning wind power sector, and assists an ever-increasing number of clients in the development, construction, financing, operation, and sale of wind energy projects. The Firm also advises the American Wind Energy Association, the leading trade association of wind power developers and operations. Dickstein Shapiro’s renewable energy professionals have significant experience in all phases of wind power and other renewable generation, including corporate structuring and project development and financings, as well as with transmission and interconnection service issues, power markets, and the business and regulatory challenges uniquely confronted by project developers, owners, and operators of renewable energy projects. The Firm also provides counsel regarding renewable energy credits and emissions markets where environmental trading has emerged, and advice with respect to new market and regulatory opportunities, state or federal renewable portfolio standards, and other market initiatives.
The Firm has unique experience with regard to the purchase and sale of nuclear power plants, the transfer of nuclear plant licenses, and the disposal of spent nuclear fuel. Prior to joining DS, a number of firm attorneys worked at the Nuclear Regulatory Commission, the DOE, and various other parties engaged in the nuclear power industry. Most recently, the Firm has represented clients in litigation against the DOE in connection with the disposition of spent nuclear fuel, as well as on new development initiatives, permitting, and regulatory approval matters. Firm attorneys assisted with the first successful auction of a nuclear power facility in the United States, and have represented both buyers and sellers in the sale of more than a dozen other nuclear facilities and in connection with the valuation of nuclear assets for non-sale purposes. Firm attorneys also have extensive experience in nuclear prudence litigation before the FERC, involving a host of plant construction, quality assurance, and public safety issues.
Dickstein Shapiro is at the forefront of the energy industry’s response to improper market practices and implementation of rigorous compliance programs. The Firm has unrivaled experience in representing clients in internal and regulatory investigations and in designing and implementing compliance programs and codes of conduct that conform to industry best practices. The Firm has conducted internal investigations of alleged non-compliance with market rules and trading and price reporting practices and has represented clients and obtained favorable settlements in investigations by the FERC, the Securities & Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), the Department of Justice (DOJ), and other federal and state enforcement authorities.
Dickstein Shapiro is a leader in energy industry restructuring and is actively involved in every region of the United States on a daily basis. The Firm participates in the formulation of the laws, rules, and policies that govern restructured power pools, power and ancillary services markets, transmission planning and operations, independent system operators, and regional transmission organizations. Dickstein Shapiro counsels clients and represents them in both regulatory and judicial proceedings on all types of energy matters, including issues related to the transition of the energy sector from a tightly regulated, vertically integrated industry to one of unbundled and competitive markets and, in some cases, back to a more regulated market.
Dickstein Shapiro also represents clients on matters pertaining to system reliability, planning, and operations, including transmission planning, system dispatch, and power procurement matters. The Firm assists in contracting for interconnection and transmission reliability studies, the formation and operation of control areas, the development and implementation of both national and regional electric and gas reliability standards, the negotiation of local area reliability agreements, and the use of distributed generation and demand-side management to help maintain reliability.
Dickstein Shapiro has unmatched experience in energy-related litigation and settlement negotiations. The FERC and state commissions increasingly are relying on administrative litigation and evidentiary hearings to resolve a broad spectrum of energy industry issues, ranging from traditional rate cases, to proposed market design changes, to allegations of non-compliance with market rules. The Firm represents parties in every type of energy-related litigation at the FERC, including hearings over rates for RMR units in New England and PJM, hearings on proposals for new capacity market designs in New England and PJM, hearings arising out of the 2000-2001 California energy crisis, a hearing on the implementation of allocation of facility costs for new generator connections in New York, and station power netting rules before the federal courts. In addition to complex regulatory litigation before agencies and in trial and appellate courts, the Firm represents clients in securities claims, class action suits, antitrust actions, bankruptcy proceedings, environmental matters, takings claims, contract disputes, construction litigation and arbitration, insurance coverage, and stockholder litigation.
Dickstein Shapiro has represented regulated utilities, independent generators, and other energy clients on a wide range of energy-related tax matters. This includes all of the tax issues that arise in connection with the purchase, sale, financing, and operation of electric generating facilities, natural gas pipelines, “midstream” natural gas processing facilities, and natural gas storage and distribution facilities, both in the United States and abroad.In addition, Dickstein Shapiro’s experience in the area of contributions-in-aid-of-construction (CIAC) is second to none. The Firm’s attorneys have advised both utilities and generators in connection with the drafting and negotiation of the tax provisions in numerous interconnection and other agreements. In addition to having obtained numerous private letter rulings with respect to CIAC matters, the Firm has represented parties in securing rulings dealing with the tax treatment of transmission and energy credits and allowances.
The Firm represents companies in energy-related legislative matters before federal and state governments. Firm attorneys have led coalitions of energy producers and consumers in matters including electric energy industry restructuring, Federal Power Act and Clean Air Act amendments, and Public Utility Holding Act reforms. Dickstein Shapiro’s team of attorneys and public affairs professionals has a collective background that comes from years of highly varied public service, and includes three former U.S. Senators, including one who served for 24 years on the Senate Committee on Energy and Natural Resources; three former members of the House of Representatives—including Speaker J. Dennis Hastert; the former Chief Counsel for Oversight and Investigation for the U.S. House Committee on Energy & Commerce; and others who have held senior positions at the White House, the DOE and other Cabinet departments, on congressional staffs, and in state government.