NRRI presents a brand-new teleseminar:

“Sanctity of Contract” Trumps “Public Interest” Intervention:
The Supreme Court Revisits Mobile-Sierra—Again

A 90-minute teleseminar for practitioners and decisionmakers
involved in or affected by federal energy regulation.

Monday, March 15, 2010
3-4:30 p.m. Eastern Time

Featuring:

Scott Hempling, Executive Director, NRRI
Scott Strauss, Partner, Spiegel and McDiarmid
Jeffrey Schwarz, Of Counsel, Spiegel and McDiarmid
Carmen Gentile, Founding Partner, Bruder, Gentile & Marcoux, LLP


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Two times in three years, the Supreme Court has tangled with the Mobile-Sierra “doctrine.” What's up?

The 2008 opinion arose out of California's run-in with high market-based rates. The Court there sought to define when and why regulators can modify private contracts. See Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 Of Snohomish County, No. 06-1457 (June 26, 2008). The Court interpreted the Federal Power Act and Natural Gas Act to require FERC to presume that a rate set by a freely negotiated wholesale contract satisfies the statute's “just and reasonable” standard. To overcome the presumption, FERC must find that the contract “seriously harms” the “public interest” (meaning, interests broader than those of the complaining party).

On January 13, 2010, the Court came back. A New England settlement established rate-setting mechanisms of sales of capacity. The settlement requirement challengers to the rates to satisfy Mobile-Sierra's high “public interest” standard. FERC approved the settlement. On review, the D.C. Circuit rejected challenges to the settlement, but agreed with the challengers that the high Mobile-Sierra standard does not apply to challenges brought by non-contracting third parties.

The Supreme Court reversed. Its 8-1 opinion, written by Justice Ginsburg, stated: “... [T]he Mobile-Sierra presumption does not depend on the identity of the complainant who seeks FERC investigation. The presumption is not limited to challenges to contract rates brought by contracting parties. It applies, as well, to challenges initiated by third parties.” NRG Power Marketing, et al. v. Maine Public Utilities Commission, No. 08-674. Justice Stevens, also dissented in the 2008 opinion, dissented again, characterizing the majority's effort as “the third chapter in a story about how a reasonable principle, extended beyond its foundation, becomes bad law.”

Join this panel of hard-bitten regulatory lawyers to sort it all out. NRRI Executive Director Scott Hempling will summarize the background law and the Court's decision. He then will lead a discussion with Scott Strauss and Jeffrey Schwarz of Spiegel and McDiarmid and Carmen Gentile of Bruder, Gentile & Marcoux, LLP. In the ensuing dialogue and debate, you will learn:

• Why “contract sanctity” is central to Federal Power Act and Natural Gas Act regulation.
• Why “public interest,” in the context of federal utility regulation, is a term of art still in dispute after 75 years.
• Why FERC will continue to grapple with this difficult boundary between private negotiations and public-spirited regulation.
• Why the term “settlement” continues to be a misnomer in the context of regional power markets.
• Why litigation (or the threat of it) remains a dominant form of conversation in federal utility regulation.

Gather your entire team around a speakerphone and together you can all take part in this fast-paced discussion. Best of all, you’ll be able to connect personally with the panelists when we open up the phone lines for live Q&A.

Seminar Leader

Scott Hempling, Esq. is the Executive Director of NRRI. He provides legal and policy advice to public- and private-sector clients involved in regulated industries. His research emphases include mergers and acquisitions, the introduction of competition into formerly monopolistic markets, corporate restructuring, ratemaking, utility investments in nonutility businesses, and state-federal jurisdictional issues. Mr. Hempling received a B.A. cum laude in (1) economics and political science and (2) music from Yale University. He received his J.D. magna cum laude from Georgetown University Law Center. He has appeared numerous times before committees of the U.S. Senate and U.S. House of Representatives; and before state legislative committees in Arkansas, California, Maryland, Minnesota, Nevada, North Carolina, South Carolina, Vermont, and Virginia.

Distinguished Panel

Scott H. Strauss is a partner and Jeffrey A. Schwarz is Of Counsel to the Washington, D.C. law firm of Spiegel & McDiarmid LLP, which represents public-sector entities on energy, environmental, telecommunications, and transportation issues. Mssrs. Strauss and Schwarz have substantial experience in complex litigation before federal and state agencies concerning all aspects of utility ratemaking and electric utility industry restructuring. Mssrs. Strauss and Schwarz represented Supreme Court amici curiae, the American Public Power Association and National Rural Electric Cooperative Association, in the Morgan Stanley and NRG cases. Their article, “The Mobile-Sierra Doctrine: A Return to its Statutory Roots,” was published in the May 2007 issue of Public Utilities Fortnightly. Mr. Schwarz is a cum laude graduate of Harvard Law School. Mr. Strauss is a cum laude graduate of the University of Pennsylvania Law School and was named a "Super Lawyer" in the energy practice area for 2007, 2008 and 2009 by Washington, D.C. Super Lawyers magazine.

Carmen Gentile is is a founding partner of Bruder, Gentile & Marcoux, LLP and has practiced energy law for more than 30 years. He has litigated for and advised clients on a variety of matters including competition, industry restructuring, mergers, asset acquisitions, open access transmission, regional transmission organizations, interconnection agreements, power supply and transmission planning, market-based rates, stranded costs, contract disputes, nuclear plant decommissioning, fuel procurement, compliance with the Energy Policy Act of 2005, Standards of Conduct and affiliate restrictions compliance, reliability must-run agreements, exchange-based power purchases and sales and the prudence of nuclear power plant construction and operation. He has participated in antitrust litigation before the Federal District Courts, argued several appeals in the United States Courts of Appeals, and practices before FERC on a regular basis. Before founding BGM, Mr. Gentile was an associate and then a partner in a Washington, D.C. law firm specializing in public utility and environmental law. He holds an A.B. in international relations from Harvard College (1961) and an LL.B. from the University of Pennsylvania Law School (1967). Mr. Gentile is admitted to practice in the District of Columbia. He is a past president of the Federal Energy Bar Association and has served on that association’s board of directors, and as chairman of its Committees on Antitrust and Regulations. His publications include an article on the Mobile-Sierra doctrine, written in connection with his involvement in several contract litigations and published in The Energy Law Journal.