Jenner & Block

Energy

The energy industry is in the midst of disruptive and rapid changes due to a variety of factors, including historically low natural gas prices, changing environmental regulations at the state and federal level, increasing reliance on renewable generation and efforts to promote energy storage, and initiatives to support distributed generation.  These changes have placed pressure on the existing design of federal wholesale energy markets and the traditional division between federal and state authority.  Rules are being rewritten, and billions of dollars are at stake. 

Amidst these high-stakes changes, Jenner & Block provides its clients with cutting-edge strategic guidance, a nationally recognized litigation track record, public policy advocacy and deep transactional experience.  Our lawyers, who include a former FERC Commissioner and the former general counsel of Exelon Corporation and president of PSEG Energy Holdings, have experience handling the full range of issues confronting energy companies today.

Appellate matters.  The firm draws upon its nationally renowned Appellate and Supreme Court Practice to deliver excellence to clients.  Our lawyers handle appeals to federal and state courts, including the US Supreme Court, on the full range of matters that arise in the energy industry, including antitrust, bankruptcy, constitutional, contract, employment, preemption, punitive damages and tax law.   We also routinely represent companies seeking to challenge or intervene in defense of federal rules or orders promulgated by agencies, including FERC, EPA, FCC and others.  At the state level, the firm frequently represents utilities in high-stakes appeals concerning orders by state regulatory commissions.  Successful advocacy involving issues that are often highly technical requires both a deep understanding of the industry and an ability to translate that understanding into a persuasive brief aimed at a generalist court.

Climate change and clean technology law.  Our environmental law partners advise companies on the legal regimes enacted to address climate change and to support clean technologies.  One of our partners was a former solar power developer.  We have experience with various methods of financing renewable energy projects.

Complex commercial litigation.  The firm’s lawyers have handled construction disputes and disputes over power purchase agreements and defended against consumer class actions.  The firm’s commercial litigation practice is ranked among the best in the United States.  We routinely handle commercial disputes worth billions of dollars.

Cybersecurity and information governance.  We assist clients in developing a comprehensive cybersecurity and incident response program, including counseling on elements to mitigate cybersecurity risk and on the data security and privacy safeguards needed with respect to customer data.

Environmental  litigation and counseling.  The firm’s lawyers have successfully litigated citizen-suit and agency enforcement actions under RCRA, CERCLA, and state law, including those brought in connection with former manufactured gas plant sites, refineries, pipelines and power plants.   The firm also regularly counsels energy clients on the full range of environmental and OSHA compliance issues.  We have significant experience advising clients on environmental matters arising from the redevelopment of brownfields as sites for renewable generation.

Federal constitutional matters. We have litigated or advised on important constitutional questions, including Federal Power Act and PURPA preemption and the Dormant Commerce Clause.  Our litigators won a landmark Federal Power Act preemption case challenging a New Jersey statute subsidizing new gas-fired generators and have substantial experience in preemption issues.  We have also represented or advised electric utilities on other constitutional matters, including First Amendment issues, takings claims and due process issues.

Federal regulatory matters. We represent clients before FERC, EPA, and other federal agencies.  Our lawyers have experience briefing complex economic and technological issues and thinking creatively to propose innovative policy solutions for clients.  Representative matters include the recent redesign of the PJM market to reward capacity resources for performance and penalize them for non-performance; petitions for rulemaking concerning the Renewable Fuel Standard and crude oil export ban; and extensive comments on EPA’s Clean Power Plan.  In such matters, the firm frequently draws upon the experience in its Government Controversies and Public Policy Litigation Practice, which is led by the former associate attorney general of the United States.

Investigations and white collar defense.  We have deep experience defending clients in high-profile, complex investigations involving state and federal law enforcement and regulatory agencies.  These include, among other notable matters, the largest internal investigation ever conducted in the United States on behalf of the court-appointed examiner in the Lehman Brothers Holdings bankruptcy.  In the energy sector, our lawyers have defended against an FERC investigation alleging unlawful trading; conducted an investigation in connection with a utility merger; and carried out several internal investigations for utility companies.

Nuclear plant issues.  The firm has extensive experience litigating large-dollar insurance claims on behalf of nuclear generation companies, and one of our partners served for many years as a NEIL board member.  We have also litigated complex breach of contract actions arising from construction disputes, disputes over whether certain costs should be recoverable in rates, and issues arising from nuclear decommissioning.  We have successfully asserted large claims against the government regarding the costs of storing spent fuel.

Restructuring and bankruptcy.  Our lawyers have decades of experience representing parties in bankruptcy proceedings involving utilities.

Transactions.  Our transactional counseling encompasses the spectrum of energy industry issues, including off-take agreements; commodity hedges; construction contracts; utility service agreements; asset transfers, including environmental provisions; regulatory obligations; and environmental permitting.  We also perform merger due diligence, including with respect to environmental liabilities, and associated tax counseling.