Energy Regulation and Competition

Electricity and the infrastructure needed to generate, deliver, and efficiently use it is the lifeblood and circulatory system of the modern technology- and data-driven economy. Supporting economic prosperity while averting the worst effects of climate change requires rapidly decarbonizing the economy by transitioning to clean energy sources, deploying innovative solutions to serve and manage electricity demand, and developing the infrastructure needed to support a technologically advanced power system. This shift to a more advanced energy sector will support an economy that is cleaner, healthier, smarter, and more resilient. Many of the technologies and business models necessary to achieve those goals already exist, but powerful monopolies control key regulatory and economic barriers that presently impede the efficient and rapid evolution of the electric power sector.

Wilson Sonsini’s energy regulation and competition team advocates for innovation and competition in the regulation of electric energy across the nation. We help clients create opportunities to compete with new services, technologies, and business models in complex regulatory environments where legacy companies have long resisted change. Wilson Sonsini is the go-to law firm for companies looking to capitalize on the evolving energy and data ecosystem and emerge as winners in the new energy economy.

What We Do

Appearing before FERC and state public utility commissions, our energy regulation and competition team represents clients in advocacy to revise legacy systems and implement new regulatory regimes that support the entry and development of competitive clean energy resources. Representing the lead clean energy trade associations, we dismantle key barriers and revise skewed incentives that currently impede the efficient evolution of the electric power sector.

• Our team specializes in supporting new market entrants that are facilitating novel and complex transactions within the organized ISO/RTO markets, regularly assisting such clients on all matters related to market participation, interconnection, transmission service, market design, resource adequacy, and stakeholder advocacy.
• In addition to our regular practice within all restructured regional markets, our attorneys have more than 30 years of experience representing developers, independent power producers, and commercial and industrial customers, including in traditionally regulated markets where opportunities and access are limited.
• In support of our Project Development and Transactions and Sustainability and Decarbonization practices, we assist clients in securing the necessary permits, licenses, and authorizations to facilitate physical, financial, and virtual power purchase agreements.   
• Working closely with our transaction teams, the energy regulation and competition team ensures compliance—and facilitates necessary governmental approvals—in connection with the development, financing, and acquisition of clean energy infrastructure projects and assets throughout all areas of the U.S.

We also work closely with the firm’s regulatory team in the following areas to help clients comply with related regulatory regimes that affect the energy industry: 

• Antitrust and Competition
• Data, Privacy, and Cybersecurity
• Committee on Foreign Investment in the U.S. (CFIUS)
• Export Control and Sanctions
• Federal Trade Commission

Representative Engagements

Our energy regulation and competition team has:

• Represented one of the nation’s largest independent power producers in FERC proceedings involving potential tariff and policy reforms to accommodate the co-location of large data center loads with electricity generation resources.
• Represented an independent power producer trade association and secured a unanimous victory from the U.S. Court of Appeals for the Third Circuit in a challenge to a FERC order that sought to retroactively alter the parameters of a capacity market auction administered by PJM Interconnection.
• Represented an independent power producer in seeking FERC’s authorization, pursuant to Section 203 of the Federal Power Act, for the acquisition of a 110 MW operating photovoltaic solar facility.
• Counseled a data center developer client on ERCOT requirements relevant to several transactions involving the development of data centers co-located with existing renewable energy generation facilities located in Texas.
• Represented independent power producers in FERC proceedings, including complex settlement negotiations involving dozens of parties, concerning Winter Storm Elliott’s impacts on the PJM Interconnection capacity market.
• Represented a battery storage trade association in proceedings involving reforms to the wholesale distribution access tariffs of Southern California Edison, Pacific Gas & Electric, and San Diego Gas & Electric.
• Represented the owner of one of the largest pumped-hydro facilities in the U.S. in a proceeding to recover the costs associated with complying with certain NERC reliability standards.
• Counseled a provider of dynamic line rating (DLR) solutions on FERC policies and proceedings relevant to the adoption of DLR on the interstate transmission system.
• Represented the developer of a 230 MW battery storage project in successfully disputing the allocation of over $200 million in network upgrade costs to the project.
• Represented OhmConnect in securing FERC approval of its merger with Google Nest Renew.
• Represented a battery storage project developer in filing a complaint under Section 206 of the Federal Power Act, and securing a favorable negotiated outcome, against a regional transmission organization concerning the organization’s attempt to withdraw the interconnection request for a utility-scale battery storage project.
• Represented a renewable energy project developer in briefing as amicus curiae before the U.S. Court of Appeals for the D.C. Circuit concerning the U.S. Supreme Court’s post-Loper Bright remand of FERC’s order concerning the interpretation of PURPA’s 80 MW size limit on small power production facilities.
• Represented Advanced Energy United, American Clean Power Association, and the Solar Energy Industries Association in a judicial appeal of FERC Order No. 2023.
• Represented Advanced Energy United in a judicial appeal of FERC Order No. 1920.
• Represented Advanced Energy United in a judicial appeal of FERC orders approving the Southeast Energy Exchange Market.
• Represented a coalition of clean energy trade associations in a FERC proceeding and associated judicial appeal involving MISO’s proposed Joint Targeted Interconnection Queue framework.
• Represented multiple clients in seeking FERC’s authorization to make wholesale sales of energy, capacity, and ancillary services at market-based rates (MBR), and in complying with corresponding obligations under FERC’s MBR regulatory framework.
• Represented multiple power sector clients in FERC and/or RTO/ISO enforcement and compliance matters.  
• Helped defeat a 2017 Department of Energy (DOE) proposal that requested FERC make market changes to protect fossil fuel generation and secured a ruling from FERC declining to adopt the changes proposed by the DOE.
• Engaged in a long-term effort in defense of the rights granted to Qualifying Facilities by the Public Utility Regulatory Policy Act of 1978 (PURPA). Engaged as SEIA’s regulatory counsel before FERC on the proceedings leading to its Order 872, the Wilson Sonsini energy regulation and competition team developed testimony and briefings submitted to federal legislators and regulators, drafted reform proposals and comments before FERC, educated state regulators on the value of long-term contracts, and appealed and briefed certain matters before the U.S. Court of Appeals for the Ninth Circuit.
• Secured a ruling from FERC endorsing state jurisdiction over net metering in the course of defending against the petition submitted by the New England Ratepayers Association.
• Secured a ruling from FERC invalidating the discriminatory “exit fee” within the Southwest Power Pool (SPP) that had served to effectively foreclose the addition of new voting members.
• Helped defeat interconnection reforms proposed by PacifiCorp and secured rulings from FERC prohibiting discriminatory standards for commercial readiness.
• Defeated interconnection reforms proposed by Southern California Edison and secured FERC approval of a settlement for a reduction in rates and implementation of new service for solar and storage resources.
• Led stakeholders in technical conference and rulemaking proceedings before FERC to encourage the commission to accommodate state policies in wholesale energy and capacity markets.