All posts by Sarah Green

Client Alert: Supreme Court Overturns Chevron Deference in Loper Bright Enterprises v. Raimondo

July 2, 2024

On June 28, 2024, the Supreme Court issued its decision in Loper Bright Enterprises v. Raimondo.  The decision overturns decades-old precedent and alters a foundational principle of the law governing federal court review of decisions by federal administrative agencies, including the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC).  It is too soon to know how the federal courts will apply Loper Bright, but the decision will likely narrow the ability of all federal agencies to do their jobs.  Clients should expect a period of disruption and uncertainty as courts work out how to apply Loper Bright’s new standard of reviewing agency action.

 

This Client Alert, available for download below, provides an overview of Loper Bright and its potential ramifications—please reach out to firm attorneys with any questions or for more information.

 

DOWNLOAD ATTACHMENT

Chambers and Super Lawyers Again Recognize Spiegel & McDiarmid LLP

June 7, 2024

Bayne, Bogorad, Pomper, Schwarz, Strauss Highlighted

Spiegel & McDiarmid LLP thanks our clients for their continued support and confidence as reflected in the recognition the firm has recently received from Chambers USA.

For the eleventh consecutive year, Chambers & Partners has recognized Spiegel & McDiarmid LLP as one of the nation’s leading law firms in the area of “Energy: Electricity (Regulatory & Litigation) — Nationwide.” Chambers also recognizes Cindy Bogorad and Scott Strauss individually as among the top lawyers in that category. Chambers ranks “the world’s best lawyers and law firms based on in-depth, objective research” and extensive interviews with clients and colleagues. Their guide is considered the premier survey of attorneys and law firms in the country. We are gratified by the comments we received from clients and others as reported in Chambers USA. You may read the full review on Chambers’s website.

In addition, for the year 2024, Washington DC Super Lawyers has again selected Cindy Bogorad, David Pomper, Jeff Schwarz and Scott Strauss as “Super Lawyers” and Jeff Bayne as a “Rising Star.” Super Lawyers, a Thomson Reuters business, is a rating service of outstanding attorneys from more than seventy practice areas who have attained a high degree of peer recognition and professional achievement. Super Lawyers are selected through a process involving independent research, peer nominations and peer evaluations.

Ratepayer Advocates Ask FERC to Modernize its Regulation of Utility Investments

April 1, 2024

On Tuesday, March 26, the District of Columbia Office of the People’s Counsel, Maryland Office of People’s Counsel, and New Jersey Division of Rate Counsel filed joint comments responding to the Federal Energy Regulatory Commission’s (FERC) Notice of Inquiry on the agency’s policies and practices concerning investments in utility companies. The state ratepayer advocates argue that, given industry changes, FERC needs to toughen its regulations and more closely scrutinize utility investment activities to protect consumers from anti-competitive harms.

Section 203 of the Federal Power Act requires investors in utility companies to obtain approval from FERC for transactions valued at over $10 million. Since 2006, FERC has issued so-called blanket authorizations granting advance approval for transactions that it deems unlikely to result in investor control over the utility. The Notice of Inquiry asks whether changes to the agency’s blanket authorizations policy are needed considering developments in the utility industry, including “consolidation in the public utility industry as well as the growth of large index funds and asset managers.”

State ratepayer advocates responded with an emphatic “yes.” Their comments describe how the involvement of financially powerful and influential institutional investors in utility governance matters threatens ratepayers with competitive harm and warrants heightened prophylactic measures, consistent with FERC’s consumer protection mandate under the Federal Power Act. Of particular concern is the growth of horizontal ownership—the ownership of multiple competitor companies by a single investor—which reduces competitive incentives and undermines FERC’s goal of promoting well-functioning markets. To prevent harms to consumers and the public interest, the state ratepayer advocates recommend that FERC modernize its blanket authorizations policy and impose stricter conditions on such investors to ensure they lack the ability to influence utilities towards anti-competitive ends.

The three consumer advocates offices are represented in this matter by Spiegel partners Scott Strauss and Peter Hopkins and associate Sam Whillans.

FERC Updates Policy for Recovering Construction Labor Wages in Utility Rates

April 1, 2024

At its March Open Meeting, the Federal Energy Regulatory Commission (FERC) unanimously voted to issue its Policy Statement titled Project-Area Wage Standards in the Labor Cost Component of Cost-of-Service Rates (89 Fed. Reg. 21,503 (published Mar. 28, 2024)), which received broad support from commenters. This Policy Statement clarifies the evidence necessary for jurisdictional entities to include wages consistent with project-area wage standards in cost-of-service rates filed with the Commission.

Firm Partner Scott Strauss and Associate Anree Little provided strategic advice in this matter to a national labor union in the construction sector.

Under the new policy, FERC will find the inclusion of labor wages consistent with project-area wage standards in cost-of-service rates presumptively just and reasonable, where the applicant demonstrates that it has or will pay such wages. The Policy adds that FERC will accept as sources of project-area wage standards: (1) applicable collective-bargaining agreements or Project Labor Agreements; (2) Davis-Bacon Act local prevailing wage determinations; (3) state prevailing wage determinations; or (4) other evidence demonstrating the prevailing wages paid in the relevant locale(s), such as an industry-accepted database used in construction cost estimates. While allowing for the use of other sources where appropriate, the Commission further clarified that it will “look to applicable collective-bargaining agreements or Project Labor Agreements as an appropriate default source of project-area wage standards.”  In all cases, entities invoking the policy must “maintain and preserve records, including books of account or records for work performed by employees, contractors or subcontractors, sufficient to demonstrate that claimed project-area wages were actually paid.”

FERC’s Policy Statement joins a broader trend in federal policy aimed at protecting local wages for construction workers. For example, in 2022, President Biden signed Executive Order 14063, 3 C.F.R. 14,063 (2022), mandating U.S. agencies to require the use of Project Labor Agreements on large federal construction projects. In a recent rulemaking updating prevailing wages determinations under the Davis Bacon Act, the Department of Labor observed that “[b]y requiring the payment of minimum prevailing wages, Congress sought to ‘ensure that Government construction and federally assisted construction would not be conducted at the expense of depressing local wage standards.’” 88 Fed. Reg. 57,526, 57,526 (citing Determination of Wage Rates Under the Davis-Bacon & Serv. Cont. Acts, 5 Op. O.L.C. 174, 176 (1981)).

New Jersey Division of Rate Counsel Argues Against Greenlighting of Transco Pipe Line Project

March 18, 2024

On March 15, 2024, firm partner Jeffrey Schwarz, on behalf of the New Jersey Division of Rate Counsel, argued in the D.C. Circuit (recording) to vacate a Federal Energy Regulatory Commission (FERC) order greenlighting Transcontinental Gas Pipe Line Company’s (Transco’s) Regional Access Expansion Project (REAE).

The project will enable Transco to transport up to 829,400 dekatherms of gas per day, which is enough to serve approximately 4.4 million homes annually, according to Transco’s website. New Jersey gas distribution companies contracted for the rights to about 56% of REAE pipeline capacity, but the New Jersey Board of Public Utilities studied the issue extensively and concluded that they already had enough firm pipeline capacity and other supplies, without the REAE project, to meet customer demand even on extra-cold “design” days.

The REAE project is estimated to cost almost $1 billion to build and, if used to full capacity, would transport enough gas to increase New Jersey’s greenhouse gas (GHG) emissions by almost 12 percent, which could seriously hinder efforts to achieve legally-mandated GHG cuts of 80 percent by 2050.

Mr. Schwarz told the court that FERC gave too little weight to state law, which requires both GHG cuts and reduced gas consumption, and to the Board’s determination that New Jersey distribution companies don’t need the extra pipeline capacity. He also explained that FERC failed to perform its duty under the Natural Gas Act to weigh the project’s benefits against its needless ratepayer costs and ongoing damage to the climate and state climate policy.

With Mr. Schwarz on the briefs were firm partner Scott Strauss and associate Anree Little.

Rate Counsel intervened before the D.C. Circuit to support challenges brought by: New Jersey Conservation Foundation, New Jersey League of Conservation Voters, Aquashicola Pohopoco Watershed Conservancy, and landowner Catherine Folio; the Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper; and Sierra Club and Food & Water Watch.

Press coverage:

Niina H. Farah, DC Circuit case pits pipeline expansion against NJ’s climate ambitions, E&E News By Politico, March 18, 2024, https://www.eenews.net/articles/dc-circuit-case-pits-pipeline-expansion-against-njs-climate-ambitions/.

Ry Rivard, Federal court wrestles with pipeline case that could derail New Jersey’s climate goals, Politico, Mar. 14, 2024, http://www.politico.com/news/2024/03/15/federal-court-wrestles-with-pipeline-case-that-could-derail-new-jerseys-climate-goals-00147344.

Maya Weber, Judges probe FERC reasoning on Transco’s Regional Energy Access pipe expansion, S&P Capital IQ, Mar. 19, 2024, https://www.capitaliq.spglobal.com/apisv3/spg-webplatform-core/news/article?id=80906472.

The City of Orangeburg, S.C. Begins Historic Power Purchase Agreement with Duke Energy Carolinas

January 4, 2024

The City of Orangeburg Department of Public Utilities (DPU), one of the largest municipal utilities in South Carolina, recently announced, as posted by the American Public Power Association, that as of January 1, 2024, it began purchasing power from a new provider, Duke Energy Carolinas, LLC.  Since its founding in 1927, Orangeburg DPU has had essentially one provider, Dominion Energy (previously known as SCE&G or Broad River Power). DPU’s new, historic agreement with Duke is also significant as it is the culmination of decades-long efforts by Orangeburg DPU to gain access to broader wholesale market opportunities.

Before agreeing to its current fifteen-year term contract with Duke, DPU conducted an exhaustive evaluation process that took nearly two years to complete. DPU described its new partner as “an industry leader that will help them meet their energy needs now and in the future as they seek to grow and prosper their community.”  DPU said it looks forward to this partnership, adding in a statement: “We believe we have provided our customers with the mandate given to us by our City Council; safety, reliability and cost effective power” (as quoted by WLTX-TV Columbia).

Spiegel & McDiarmid has long represented Orangeburg DPU with respect to utility matters before state commissions, the Federal Energy Regulatory Commission and appellate courts. Attorneys Jim Horwood and Anree Little served as outside counsel to DPU on this matter.