Sutherland’s Energy Compliance and Enforcement Team has substantial experience providing our energy clients with compliance and enforcement advice before the Federal Energy Regulatory Commission ("FERC"), Commodity Futures Trading Commission ("CFTC"), Environmental Protection Agency ("EPA"), Federal Trade Commission ("FTC") and other federal and state agencies. Our inter-disciplinary approach allows us to draw upon the skills and experience of our energy regulatory lawyers who regularly appear before FERC; our corporate lawyers who advise energy trading companies on structured deals and other commercial transactions; and white-collar defense and other litigators who represent energy companies and traders.
Our compliance work includes:
- evaluation of the client’s production and generation, transportation and transmission, marketing, trading and other activities to assess compliance needs;
- recommendations concerning the scope of applicable compliance and enforcement requirements;
- development of company-specific compliance procedures and manuals;
- training of relevant legal, compliance, trading and operations personnel; and
- internal audits and reviews.
We also are called upon by our clients for advice in connection with FERC and CFTC enforcement matters, including investigations and audits concerning compliance with regulations, price spikes, natural gas capacity release and related rules, and other market behavior.
FERC – Natural Gas
Sutherland has substantial experience handling FERC compliance matters for natural gas pipelines, marketers and other industry participants. Sutherland regularly advises end users and marketers on a myriad of FERC compliance and policy issues. In addition, Sutherland serves as outside counsel for several interstate pipelines, providing legal guidance regarding compliance with FERC regulations, orders and policies.
Our regulatory services encompass:
- Preparation and filing of tariffs and reports;
- Counseling concerning all aspects of ongoing compliance with natural gas rules, regulations and policies;
- Obtaining waivers of regulatory requirements where appropriate;
- Monitoring of regulatory developments and analysis of their potential applicability to our clients; and
- Participation in all aspects of FERC regulatory proceedings, including rate litigation.
Most recently, we have been retained to undertake a comprehensive review of an interstate natural gas pipeline’s compliance with the FERC Standards of Conduct (affiliate rules), and we currently advise several market participants concerning compliance with the FERC capacity release and shipper-must-have-title rules, including a FERC investigation regarding these and other matters.
FERC – Electric Power
We are FERC regulatory counsel to energy trading companies, independent generators, electric cooperative and other utilities, and other industry participants. In that capacity, we regularly advise these and other clients concerning regulatory developments and requirements at FERC, prepare tariff and other filings on their behalf, and counsel them on ongoing compliance matters. In particular, we have:
- Obtained numerous market-based rate approvals and related authorizations and waivers;
- Obtained numerous approvals of exempt wholesale generator (EWG) and qualifying facility (QF) status;
- Obtained numerous approvals under Section 203 of the Federal Power Act for asset dispositions, mergers and corporate reorganizations;
- Obtained numerous approvals under Section 204 of the Federal Power Act for issuances of securities and long-term debt; and
- Prepared numerous interlocking director filings and reports.
We have prepared compliance procedures manuals for our clients, and we have conducted numerous training sessions for their legal and business personnel. We have assisted our clients in internal reviews of their compliance with regulatory requirements, and we have conducted a full-scale internal compliance audit for an electric utility company.
We also have advised our marketer and generator clients concerning FERC investigations into price spikes in the organized electricity markets in the Northeast and violations of the affiliate transaction rules. We have been called upon by our power marketer clients to advise them concerning self-reporting of violations of interlocking director rules, various reporting requirements, and QF and market-based rate regulations.
We regularly advise clients on North American Electric Reliability Corporation (“NERC”) compliance and enforcement matters. For example, we have counseled marketers, generators, utilities, and others on registration issues; conducted compliance audits; provided counseling on self-reports for marketers, generator owners and operators, and others; developed NERC compliance procedures; and trained legal and operations personnel in reliability compliance matters.
We advise energy companies that participate in the power, gas and oil markets with respect to their compliance responsibilities as traders of regulated futures instruments and over-the-counter derivatives. Sutherland is a member of both the Futures Industry Association (FIA) and the International Swaps and Derivatives Association, Inc. (ISDA).
In addition to our involvement with the regulated commodity markets, we have worked with energy clients on the price reporting issues raised in recent CFTC and Department of Justice proceedings and in major CFTC physical energy market manipulation investigations. Representing both corporations and individuals, we have advised and defended both civil and criminal matters involving energy traders. With this core experience as background, we provide CFTC compliance support for oil, gas and power companies, including one of the integrated majors and numerous energy trading companies.
Sutherland provides preventative counseling and general advice on environmental compliance with state and federal requirements. On behalf of our energy clients, we routinely work with both the United States Environmental Protection Agency and counterpart state agencies to resolve issues that arise from inspections, complaints, and review of monitoring reports.
Our permitting work has included specific planning for compliance with Title V of the Clean Air Act as well as its prevention of significant deterioration and new source performance regulations; the Clean Water Act’s effluent guidelines and water quality regulations, hazardous and solid waste management requirements, and mining and reclamation laws.
In addition to obtaining and defending permits, we have been successful in modifying proposed limitations on individual National Pollution Discharge Elimination System (Clean Water Act) permits, air emission permits, and solid and hazardous waste disposal permits. We have extensive experience in defending against proposed fines and injunctive relief for alleged violations of air, water and waste laws, and have successfully defended against or won reductions of, proposed penalties before both state and federal administrative law judges, as well as in the federal courts. We also offer specific experience in dealing with enforcement actions against energy companies accused of violating the various federal mobile sources laws and regulations.
Additionally, EPA’s Mobile Source Program is enforced through an increasingly complex set of regulations. We counsel our clients on related enforcement issues ranging from off-specification imports to reporting concerns to EPA Notices of Violation. We help mitigate issues with sound strategies that emphasize compliance with laws and regulations while recognizing the commercial and business needs of our clients.
Sutherland represents energy and other corporate clients before the FTC and routinely provides compliance advice related to FTC regulations and antitrust laws such as the Clayton Act and the Sherman Antitrust Act. Mixing a strong general antitrust and competition practice with extensive experience in nearly every part of the energy sector, Sutherland provides clients tailored advice on antitrust and competition matters involving energy commodities and advises oil industry clients concerning the FTC’s recently augmented powers with respect to price manipulation in the petroleum markets. With experience representing U.S. regulated and unregulated entities, foreign corporations, energy trade associations, major producers, and commodity traders and end users, Sutherland understands the antitrust and competition risks that corporations must manage and is prepared to help clients develop best practices and implement effective safeguards.
© 2013 Sutherland Asbill & Brennan LLP