EBA Update - Energy Bar Association › assets › 1 › 6 › Fall_2014_Newsletter.pdf · EBA Update Fall 2014 President’s Message 2 CFEBA Update 3 ... President’s Message Jason

EBA UpdateFall 2014

www.eba-net.org

President’s Message 2

CFEBA Update 3

Houston Chapter Update 6

Excerpts from Past ELJ Issues 7

Western Chapter Update 7

Judge’s Corner 8

Excerpts from Past ELJ Issues 11

EBA Committees at Work 12

EBA Cimmittee Updates 13

Primer Series Highlights 14

FELJ Update 15

First Canadian Program Recap 16

Mid-Year Conference 17

EBA Bookclub Club Newsflash 19

Upcoming Events 20

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Having had the good fortune to in-terview Norman Bay in the Fall2009 issue of EBA Update, whenhe was a newly minted Director ofthe Office of Enforcement at FERC,it was a thrill for Gary Guy andChanning Strother (aka “HughesRudd and Bruce Morton”) in thesecond week of September to bepermitted to sit down with him one-on-one in his Commissioner Of-fices. His bookcase was bare andhis moving boxes were still piled uparound his desk, so new has beenhis elevation to this high post. Wehere proudly set forth our accountof our memorable second interviewwith Mr. Bay in five years.

Beckoned to Come to FERCMr. Bay’s impressive backgroundas a Harvard Law honors graduate,Law Professor, international claimstribunal lawyer, and federal prose-cutor singled out for commendationby the judiciary, are all recounted inthe EBA Fall 2009 newsletter. Hefirst surfaced on the FERC sceneat that time by virtue of his appoint-ment by then-Chairman Jon

Wellinghoff as Director of Enforce-ment, succeeding William Heder-man and Susan Court, for whomhe expressed much appreciation inthis latest interview. We asked himto explain the origins of that ap-pointment as well as his most re-cent nomination. He verifiedsomething that we had already dis-covered in an EBA newsletter inter-view with then-outgoing FERCCommissioner Suedeen Kelly.Namely, she first suggested him toChairman Wellinghoff to lead En-forcement. She did that after hav-ing asked him if he would have anyinterest in coming to FERC. Andhe looked into FERC’s activitiesbefore giving her a positive re-sponse. He was very impressedby the importance of FERC to the

New FERC Commissioner,Chairman-to-be, Norman C. BayGives Insights on His ApproachGoing ForwardFormer FERC Enforcement Director on FastTrack to April 15 Top SpotGary E. Guy and Channing D. Strother

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As I near the halfway point of myterm as Energy Bar AssociationPresident, I remain excited aboutthe many opportunities that theEBA makes available to its mem-bers. Every day presents a newidea or opportunity that a memberhas identified that no one had con-sidered before. Every time that Isee a new program proposed, it re-minds me that the EBA is not anorganization that is telling its mem-bers what they should want. It isan organization whose activitiesare driven by its membership.

I hesitate to single out any oneevent or experience as an exam-ple, since it could suggest thatsomehow I am not mentioningsomething equally exciting. But, Ican’t help myself. Recently, I at-tended the EBA’s first event outsidethe United States. During the lastyear, Gordon Kaiser, one of ourCanadian members—and now oneour EBA Board members—workedwith the Northeast Chapter leader-ship to expand the reach of theNortheast Chapter into Ontario,Quebec, and the MaritimeProvinces of Canada. With thatdone, Gordon led the effort to or-ganize EBA’s first Canada program,which we held in Toronto in Sep-tember. The purpose of the pro-gram was to identify issues thatour Canadian members (and po-tential new members in Canada)might want the EBA to cover.Speakers from the U.S., Canada,and the U.K. addressed marketmanipulation enforcement andoversight from the perspective ofU.S. and Canadian regulators anddefense; key energy policy issuesin Canada; and trends in Canadianand international arbitration. And,like all good EBA events, it in-cluded plenty of time for network-ing at the end of the meeting. Aswe talked about the possibility of

expanding our membership andreach in Canada, the conversationof the day was: “What can theEBA do for you?”

I would ask the same question toeach of our members. What canthe EBA do for you? We try ourbest to present programming thatmeets the needs of all of our mem-bers. We do that by asking forinput into the planning of our Mid-Year and Annual Meetings bysending surveys out to the mem-bership. We open our programplanning to anyone who will takethe time to present ideas. We tryour best to cover all of the topicsthat interest our membershipthrough our larger meetings, ourChapter events, and our committeeevents. Please do not hesitate toshare ideas with anyone in the or-ganization. We are always lookingto broaden the level of participationand to gather topics for each of ourmeetings throughout the year.

By the time that you see this mes-sage, we will be getting close toour Mid-Year Meeting & Confer-ence in Washington, D.C., whichtakes place on November 4 and 5at the Renaissance Hotel. OurProgram Committee Chairs andProgram Committee have done agreat job putting together a variedprogram that should be appealingto our members. Many of the pan-els were based on suggestionsthat our members submitted.

President’s Message Jason F. Leif

ABOUT THE ENERGY BARASSOCIATIONEBA is a non-profit voluntary associa-tion of attorneys, non-attorney profes-sionals and law students whosemission is to enhance the professionalexcellence and ethical integrity of itsmembers in the practice, administra-tion, and development of energy laws,regulations and policies. Established in1946 as the Federal Power Bar Associ-ation, the Association generally was fo-cused on those lawyers practicingenergy regulatory law at the federallevel. In 1977, the organizationchanged its name to the Federal En-ergy Bar Association to reflect thename change of the Federal EnergyRegulatory Commission. Today, theEnergy Bar Association is an interna-tional, non-profit association of attor-neys, non-attorney professionals andlaw students active in all areas of en-ergy law. It has over 2500 members,throughout the United States, Canadaand Internationally with seven formalchapters in Houston, New Orleans,Midwest, Southern, Western; North-east and Rocky Mountain regions ofthe U.S.

Energy Bar Association, 2000 M St.,N.W., Suite 715, Washington, D.C.20036, Tel: 202/223-5625, Fax:202/833-5596, E-mail: [email protected], website: www.eba-net.org

© 2014 Energy Bar Association

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2 EBA Update Fall 2014

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Fall 2014 EBA Update 3

Charitable Foundation of the Energy Bar Association UpdateMarcia Hooks

Commissioner’s Reception A Great SuccessA grand time was had by all who attended the Commissioners’ Reception held on Monday, October 6, 2014 atMio’s Restaurant in Washington, DC to benefit the Charitable Foundation of the Energy Bar Association. The wellattended event, which was organized by the EBA Young Lawyers and State Commission Practice and RegulationCommittees, proved to be a great opportunity for energy attorneys and professionals to meet and talk with a num-ber of State Commissioners and FERC Commissioner Norman Bay. The attendees also donated some greatwines and other items that will be auctioned at the upcoming CFEBA Gala that will be held next month. As col-leagues networked, they were able to feast upon complimentary hors d’oeuvres, listen to great music provided byAndre Fox and enjoy an open bar, all thanks to the generosity of the event sponsors, Duncan Weinberg, Genzer,& Pembroke, P.C., Pierce Atwood LLP, Stinson Leonard Street LLP and Van Ness Feldman, LLP. For moreinformation on the CFEBA Gala, please visit: http://www.cfeba.org/get-involved/fundraising-events

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Make Plans to Attend theCFEBA 12th Annual Gala You will not want to miss anothergreat networking event and an op-portunity to help the CFEBA tocontinue to successfully providefunds for its many worthwhile en-ergy-related charitable grants.Please mark your calendar for theCFEBA’s 12th Annual Gala-SilentAuction that will be held in conjunc-tion with this year’s EBA Mid-YearMeeting, on Tuesday, November 4,2014, starting at 5:30 pm at theRenaissance Hotel in downtownWashington, DC.

Light Up The Night is this year’sGala theme, because part of theproceeds will be donated to We-CareSolar, a non-profit, which as-sembles medical Solar CareSuitcases in the United States!The unique mobile energy unit isthe ingenuity of an American cou-ple, Dr. Laura Stachel, an obstetri-cian, and her husband, HalAronson, a solar expert. SolarSuitcases were used initially to pro-vide light for child birth deliveries inNigeria, where Dr. Stachel ob-served women dying becausethere was a lack of reliable electric-ity or none at all —meaningwomen were turned away.

The basic 35-pound compact solarsuitcase includes two LED lights,two solar panels, two headlampsand chargers. It runs up to 30hours per charge and now is usedfor other procedures in medical fa-cilities around the world, Tibet,Philippines, Mexico, Nicaragua andseveral African countries. It pow-ers not only critical lighting, butalso mobile communications andmedical devices. In an August 8,2014 article, the Wall Street Journalquoted Margaret Chan, the Direc-tor General of the World Health Or-ganization, praising the Solar CareSuitcase as “sunshine savinglives.”

To learn more about the medicalsolar suitcases and attending theGala, please visit the CFEBA website at Light Up the Night orhttp://www.cfeba.org/node/189

CFEBA InternsReflect on TheirSummer WorkExperienceBobby Goldfin,Federal EnergyRegulatory Commission

This summer I had the great for-tune of being sponsored by theCharitable Foundation of theEnergy Bar Association (CFEBA)while interning at the FederalEnergy Regulatory Commission(FERC) in the Office of the GeneralCounsel. My time at FERC was acrash-course on the operationallogistics of the agency and the vari-ous aspects of regulation withinFERC’s jurisdiction. I was given avariety of assignments includingdrafting orders, conducting re-search, preparing memoranda andreviewing filings made to FERC.Over the course of ten weeks, Iworked on both issues that I hadexperienced with regarding elec-tricity and reliability, as well astopics that were novel to me con-cerning oil and gas. As a result ofthis internship, I gained a betterunderstanding of some of theemerging debates in energy lawwhich I will use in my futureeducation and publications.

My summer internship immersedme into energy law as if beingthrown into a pool in order to learnhow to swim. To illustrate this point,my first assignment was to re-search and create a memorandumanalyzing FERC’s jurisdiction overmatters affecting wholesale rates,specifically in response to the D.C.Court of Appeals’ decision vacatingOrder No. 745. Prior to coming toFERC I had little familiarity withthat order and had never fully con-sidered the limitations on FERC’s

CFEBA Update CFEBA Update, continued from page 3

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http://www.cfeba.org/node/189


jurisdiction. However, this assignment peaked my interest and led me to work as a research assistant on a relatedmatter also concerning FERC’s jurisdictional authority.

The internship introduced me to other areas of energy law with which I had no prior experience. One assignmentwas to draft an order approving an oil company’s consolidation of pipelines. Another example was drafting an orderapproving of a company’s petition for exemption from requirements pursuant to the Public Utility Regulatory Poli-cies Act if they met the standard of the somewhat ambiguous “non-traditional utility” exception. A third assignmentallowed me to apply my knowledge of the Public Utility Holding Company Act but also exposed me to a paradoxwherein I had to approve of renewable energy companies’ self-certifications as Exempted Wholesale Generatorsas defined by the Act despite it having been largely “repealed.”

Some of my other assignments were more aligned with my experience as an intern at the North American ElectricReliability Corporation (NERC). For instance, I was assigned research and writing projects for a reliability standardconditionally approved of during my internship, and on a matter concerning NERC’s budget approval. I was alsoable to experience team projects involving reliability issues by attending a meeting with Canadian provincial au-thorities, and two meetings for reliability concerns due to compliance with the Environmental Protection Agency’sMercury and Air Toxic Standards – one with a state agency and the other with a Regional Entity.

Through FERC’s internship program, I learned in detail what each division of the agency was responsible for andcreated new relationships which I will foster throughout my career. FERC offered weekly brown-bag lunches withleaders throughout the agency who gave informal presentations on their division’s duties. I met with each of theFERC Commissioners, the General Counsel and numerous heads of departments, who not only answered myquestions on disputed topics in energy law and the industry, but also spoke about their unique career paths thatled them to gain their expertise and current functional roles. Additionally, because I met these individuals throughthe lunches I was able to later schedule individual meetings with many of these experts outside of my internship tofurther develop personal connections and receive advice.

Overall, my experience this summer was enriched by the generous support of the CFEBA. The CFEBA allowedme to spend this summer focused solely on acquiring knowledge without the pressure of finding additional re-sources to financially support myself or incur the stress of increasing my already-considerable student loans. I amthankful for their support.

Laurie Thomas, Minnesota Public Utilities Commission

My name is Laurie Thomas and I am entering my third year at William Mitchell Collegeof Law in St. Paul, Minnesota. This summer I worked as a legal intern for the Min-nesota Public Utilities Commission (PUC), researching and writing on the changingregulatory models that are developing in various states. The PUC was able to offer methis position due to a grant provided by the Charitable Foundation for the Energy BarAssociation. Before my time at the PUC I had not worked in the energy industry buthad heard briefly about some of the concerns involved in regulating investor-ownedutilities, balancing energy demand with environmental concerns, and weighing con-sumer needs and demands against the financial viability of utilities. These challengesled me to seek out opportunities in the energy industry that ultimately brought me tothe PUC.

During my time at the commission I had the opportunity to learn more about the energy industry in general, and tobegin exploring the challenges facing state and federal regulators. As part of my internship I attended commissionhearings on contested and non-contested dockets. I also participated in staff meetings, observed meetings held byvarious industry stakeholders, attended industry events, met with regulators from other states, and sat in on a leg-islative committee hearing. I also assisted with some statute interpretation.

The bulk of my work focused on researching challenges faced by regulators and utilities as generation and storagetechnologies change, energy efficiency measures and technologies advance, and environmental pressures in-crease. While many state regulators began addressing these concerns several decades ago, a small group ofstates has recently taken a less traditional approach to meeting these challenges. These approaches range fromsmall shifts in economic incentives for utilities to larger systematic changes. continued on page 12

CFEBA Update, continued from page 4

EBA Houston Chapter Update EBA Houston Chapter Discusses Ethical Considerations inResponding to FERC InvestigationsMosby G. Perrow

What should a company do when the Federal Energy Regulatory Commission’s Enforcement Staff come calling?The Houston Chapter of the Energy Bar Association sponsored a panel that addressed this question along withethical considerations in responding to FERC investigations.

Held on July 22, 2014 at Jones Day, the panel was moderated by Jones Day’s Mosby Perrow and included as pan-elists Lauren Rosenblatt, former Branch Chief in the Division of Investigations with FERC’s Office of Enforcement,and Sheila Hollis, a partner with Duane Morris, along with Jones Day’s Kevin McIntyre.

Over 80 people attended the event by phone or in person, with over half attending in person.

According to Ms. Rosenblatt, FERC is focused on activities that involve public harm in three principal areas: mar-ket manipulation, reliability violations, and violations of FERC approved tariffs and regulations. Ms. Rosenblatt ex-plained that companies may hear from FERC Enforcement Staff through an informal inquiry, a preliminaryinvestigation, or a formal investigation. She stressed that non-responsiveness can be a factor leading the Staff toelevate a given matter from an informal inquiry to a formal investigation – and that such non-responsive conductoften includes asserted inabilities to understand or to recall factual matters that are central to the business activi-ties at issue.

A carefully considered and comprehensive plan for responding to the FERC Enforcement Staff can help avoidsuch missteps, said Mr. McIntyre. Focusing on the first 72 hours after FERC Staff contact, Mr. McIntyre said that acompany must take immediate steps to preserve documents, to protect privileged and other confidential informa-tion, and to ensure that the right people – both subject matter experts and internal “fact witnesses” – are lined upto manage and to assist in responding to the inquiry or investigation. When preparing a response for submittal tothe FERC Staff, being quick, he said, is a fine objective, but any response must be appropriately vetted to ensureaccuracy, completeness and thoughtfulness, even if that means taking a bit longer.

Ms. Hollis, who served as the first Director of Enforcement at FERC, described some of the historic underpinningsof FERC’s current enforcement regime and their relevance now. FERC’s power to impose large civil penaltiesmeans high stakes to the jurisdictional regulatory players, large and small, Ms. Hollis said. Noting that FERC’snext chairman, Commissioner Norman Bay, previously served as FERC’s Chief Enforcement Officer, Ms. Hollispredicted that enforcement activities likely would only increase, potentially reaching into a variety of jurisdictionalarenas. She advised even greater emphasis on development and reinforcement of a culture of compliance andheightened awareness of regulatory risks moving forward. Further, she said, the growing level of sophisticationand commitment to enforcement under a “new” Commission and across a number of agencies, including the Com-modity Futures Trading Commission, Securities and Exchange Commission and the Department of Justice, re-quires close adherence to the highest standards for corporate activity.



Ten Years Ago“Power flows according to the lawsof physics along the path, or pathsof least resistance, often in all direc-tions at once over the interconnec-tion. Hence the contract path is notrelevant to real time dispatch andreliability. A traditional system ofaccess based on the gas marketmodel does not take into account anumber of critical factors – powersystem physics, the unpredictableevents on electricity networks thatchange the predicted power flows,and the decisions the system oper-ator must make in real time tomatch generation and loads. Thecontract path fiction also distortsmarket decisions because con-tracting parties whose grid usagescreate congestion do not pay thecongestion costs they impose onthe market. Transmission providersoperating under such a system donot have a market-based methodol-ogy for recovering the cost of eco-nomic redispatch.”

William L. Massey, Robert S. Fleish-man, and Mary J. Doyle, Reliability-Based Competition in WholesaleElectricity: Legal and Policy Per-spectives, 25 ELJ 319, 346 (2004)

Twenty Years Ago

“Traditionally, utilities and regulatorshave largely ignored loop flows andtreated transmission transactions asif electricity flowed in accordancewith the simple path designated in acontract. This tendency to ignore thereality of transmission for contractualand regulatory purposes workedtolerably well in the past because (1)provision of transmission services forthird parties required only a modest

proportion of total capacity; and (2)transmission owning utilities (TOUs)relied on a variety of informalcooperative mechanisms to keepthe loop flow problem withinreasonable bounds.”

Richard J. Pearce, Jr., The State ofthe Transition to Competitive Marketsin Natural Gas and Electricity, 15 ELJ323, 339 (1994)

Thirty Years Ago

“There are also purely physicalreasons why many distributorscannot compete with pipelines fortheir local markets. By definition,local distribution companies arelocated wholly within a particularstate and, as a result, may lack thegeographical advantage enjoyed byinterstate pipelines. For example, thedistributor’s facilities may be farremote from any natural gasproducing area. In order to movegas into their service territory,distributors must arrange fortransportation with the samepipelines with which they areexpected to compete for producersales. To make matters worse, theywill probably be dwarfed ty themarket power of the major pipelinesin bidding for favorable purchaseterms.”

J. Richard Tiano and Richard P.Bonnifield, The Impact on GasDistribution Companies of FederallyApproved Special MarketingPrograms, 5 ELJ 287, 305 (1984)

Energy Law Journal: Excerptsfrom Past IssuesAll Prior issues of the Journal are available atwww.FELJ.org

WesternChapter UpdatePamela J. Anderson

The Western Chapter held a lunch-eon featuring California Public Utili-ties Commissioner, Michael Pickeron September 17. Over 25 peopleparticipated in the lunch which washeld in a roundtable format to fos-ter discussion. CommissionerPicker talked about his backgroundand some of the progressive re-newable energy programs he initi-ated previously when he wasinvolved with the Sacramento Mu-nicipal Utilities District. He talkedabout the challenges that arisefrom doing business as usual atthe California Public Utilities Com-mission, and areas needing im-provement over the long term. Healso discussed the importance ofimproving the regulatory frame-work in California to support inno-vation and technology.

The Western Chapter also had achange in leadership. TaraKaushik, partner at Holland &Knight in San Francisco has beenappointed Vice-President. CarlFink, BluePlanetLaw, the formerVice-President and a long-timeboard member, had requested torefocus his involvement with theChapter through our planning com-mittee. With regard to planning,the Western Chapter is currentlyplanning its annual meeting whichwill be held March 5-6, 2015. As inpast years, the annual meeting willbe held at the Hyatt Embarcaderoin San Francisco. Please markyour calendar for this programwhich is not to be missed!

.

Having worked at both FERC andNRC, I often find that my judicialcolleagues and energy-law practi-tioners are interested in the differ-ences and similarities between thetwo agencies. The short answer isthis: although both agencies sharethe overarching goal of regulatingenergy providers, NRC has a morespecialized mission and a uniqueset of scientists and engineers whoserve as technical judges. For thelonger answer, read on. My col-umn today is adapted from a talk Igave in April 2011 before the En-ergy Bar Association, Nuclear Reg-ulation Committee and the FERCPractice and ALJ Committees.

First, the similarities. Both FERCand NRC are independent regula-tory commissions that grew out ofolder administrative agencies.FERC has its roots in the FederalWater Power Act which created theFederal Power Commission in the1920’s. It became the FERC weknow today on January 1, 1978,after passage of the Department ofEnergy Organization Act of 1977.

The NRC began as the Atomic En-ergy Commission (created by theAtomic Energy Act of 1946 andlater amended by the Atomic En-ergy Act of 1954), an agencytasked with the dual goals of bothpromoting and regulating nuclearpower. Congress decided to splitthese functions in the Energy Reor-ganization Act of 1974, and on Jan-uary 19, 1975, the NRC was born.

As the names suggest, the twoagencies regulate nationally impor-tant sources of energy. FERC’s au-thority covers the majority of theNation’s power supply—its whole-sale electric, natural gas, hydro-electric, and oil pipeline industries.Congress gave FERC authorityover the transmission and whole-sale cost of electricity and naturalgas in interstate commerce, as wellas the transportation of oil bypipeline in interstate commerce.FERC ensures that the rates,terms, and conditions for whole-sale and transmission are just andreasonable. Meanwhile, the NRCregulates all aspects of the Na-

tion’s civilian use of nuclear materi-als, ranging from commercialpower plants to nuclear medicine.Its statutory goals are to protectpublic health and safety, promotethe common defense and security,and protect the environment.Within this specific area, NRC reg-ulates a wide range of activities,beginning with the processing ofuranium ore and ending in the dis-posal of radioactive waste. At eachstep of the nuclear fuel cycle—ex-traction of the uranium from ore,conversion of the uranium into aform suitable for enrichment, en-richment of the uranium to a leveland type suitable for nuclear fuel,fabrication of uranium into fuel as-semblies for use in reactors, andthe ultimate disposal of spent nu-clear fuel—the NRC licenses andinspects facilities to ensure thesafe use of nuclear materials. TheNRC also participates in interna-

JUDGE’S CORNER

continued on page 9

The FERC Practice & AdministrativeLaw Judges Committee proudly pres-ents United States Nuclear RegulatoryCommission Administrative LawJudge William J. Froehlich to our ever-popular “Judge’s Corner” series.

Judge Froehlich is well known to theEnergy Bar, having served in a num-ber of key leadership positions atFERC for 32 years before assuming hiscurrent judicial position at the NRC sixyears ago. At FERC, he was, amongother things, Director of the Office ofAdministrative Litigation, SpecialCounsel to the Office of Enforcement,Assistant General Counsel for Gas andOil Litigation, and Director of the Fi-

nancial Regulation Division. ManyEBA members interacted with himthrough his oversight of the FERCTrial Staff in the adjudication of natu-ral gas, oil pipeline, and electric util-ity rate cases. He also was involved inproceedings involving LNG imports,pipeline certificates, and tradingscheme prosecutions stemming fromthe Enron demise.

In addition, he was a FERC and UnitedStates representative in China andEastern Europe, lecturing regulatorson administrative law, privatizingstate-owned industries, public utilityratemaking, and developing inde-pendent regulatory structures. He

still is in lecture mode, as an AdjunctProfessor of Administrative Law atGeorge Mason University.

His Honor was appointed a full-timelegal member of the Atomic Safety andLicensing Board Panel at the NRC inMarch 2008. In that capacity, JudgeFroehlich has conducted on-site hear-ings at nuclear facilities throughoutthe country. He continues his con-tacts with FERC practitioners and weare proud that he has kept up with hisEBA membership and involvement.

Accordingly, we herewith presentJudge Froehlich for the following en-lightening discourse:

The Honorable William J. Froehlich

Administrative Judge, U.S. Nuclear Regulatory Commission



FERC NRC

Budget $304 million (2013) $1.1 billion (2014)

Employees 1,450 3,830

Headquarters Washington, DC Rockville, MD

Regional Offices New York, NY King of Prussia, PA

Duluth, GA Atlanta, GA

Chicago, IL Lisle, IL

Portland, OR Arlington, TX

San Francisco, CA

tional work that is integral to the agency’s mandate to protect public safetyand security.

The agencies differ, however, in the type of judges appointed to hold hear-ings. FERC uses Administrative Law Judges, who become ALJs through arigorous testing and interview process run by the Office of Personnel Man-agement under 5 U.S.C. § 3105. They may move between federal agen-cies, and most FERC ALJs began their careers as ALJs at the SocialSecurity Administration or at Health and Human Services (Medicare).NRC judges are not ALJs. They are Administrative Judges appointedunder Section 191 of the Atomic Energy Act, as amended in 1962. Underthis Act, NRC has both Technical Judges (typically scientists and engi-neers) and Legal Judges. These Judges are merit-based appointmentsand required by statute to be “persons of recognized stature in the nuclearfield” (for the Technical Judges) or “qualified in the conduct of administra-tive proceedings” (for the Legal Judges). Despite these differences, FERCALJs and NRC Administrative Judges have the same salaries, powers toconduct evidentiary hearings, ability to settle cases, and other judicial re-sponsibilities.

With respect to organizational structure, the main differences between thetwo agencies are the titles. FERC has a Chief ALJ and a Deputy ChiefALJ, while at the NRC we have a Chief Administrative Judge and two As-sociate Chief Administrative Judges (one Legal and one Technical). Thereare 15 ALJs (including the Chief and Deputy Chief) at FERC, and thejudges wear robes at hearings. At the NRC there are 7 full-time LegalJudges (including the Chief and Associate Chief-Legal), 4 full-time Techni-cal Judges (plus the Associate Chief-Technical), and 25 part-time technicaljudges. Thankfully, Administrative Judges at the NRC do not wear robes.Both FERC ALJs and NRC Administrative Judges have law clerks whoserve two-year appointments. A FERC law clerk is shared among 2 or 3ALJs. At NRC, law clerks are assigned to cases, not to individual judges.

Cases also differ in the number of judges presiding. Cases at FERC areassigned to a single presiding judge, although many cases settle with theassistance of a settlement judge. NRC has provision for the appointmentof a settlement judge but this provision is rarely used. At the NRC, casesare assigned to a three-judge panel, usually two technical judges and onelegal judge. At FERC, counsel for the parties conduct the cross-examina-tion, while at the NRC the administrative judges conduct most of the cross-examination.

Almost all hearings at FERC are held in Washington, D.C., in one of the

seven hearing rooms at 888 FirstStreet. The largest hearing roomcan seat 200 people. NRC has onehearing room in Rockville, Mary-land, which seats 75. TheRockville hearing room is a state-of-the-art courtroom, with voice-ac-tivated digital video recording,display monitors for the parties andthe public, tele/videoconferencing,and web-streaming systems thatpermit parties and witnesses toparticipate from multiple remote lo-cations and members of the publicto view proceedings over the Inter-net. Most NRC hearings, however,are not held in our Rockville hear-ing room but rather in local court-houses in communities near theaffected regulated facilities. Theentire digital court room infrastruc-ture can be transported to any re-mote location. This includes a fullysearchable audio-video transcript,simultaneous translation capability,web-streaming and the ability todigitize physical evidence using an“Elmo” device.

During my six years serving as anAdministrative Judge at NRC, I’vebeen pleased by the technical so-phistication of our adjudicatory pro-ceedings. All testimony, exhibits,briefs, motions and other pleadingsare filed electronically. The NRCSecretary, who is referred to asSECY, serves all parties to a casewith the materials filed with theagency. There are no paper filingsnor are there any paper exhibits inthe hearing room. During cross-ex-amination the pre-filed exhibits areelectronically displayed on largescreens and can be highlightedand annotated by the witnessesand their counsel before beingplaced in the record. These elec-tronic markings made during thehearing can then be incorporatedinto the digital record of the pro-ceeding, which is accessible to theparties and the public.


Judge’s Corner, continued from page 8


Judge’s Corner, continued from page 9 EBA Committees at WorkAlthough hearings at NRC and-FERC are both subject to the Ad-ministrative Procedure Act, gettinga hearing at the NRC is muchmore difficult than at FERC. Inter-ested parties face a high regulatorybar before they are entitled to ahearing. Under 10 C.F.R. §2.309(f)(1) parties must meet sixrequirements before they can adju-dicate an issue (known in NRCparlance as a “contention”).Among other requirements, theymust show a specific, genuine dis-pute with the applicant that is re-lated to one of the environmentaldocuments or the public health andsafety. Proposed contentions mustbe supported by factual allegationsor expert opinion. As a result,there are far fewer hearings held atthe NRC than at FERC.

At NRC hearings, rulings on proce-dural motions are decided by thelegal Administrative Judge, whilethe final decision on the merits ismade by the three judge panel as-signed to the case. Most decisionsare unanimous, but an Administra-tive Judge who disagrees with themajority decision or its reasoningmay issue a dissent or a concur-rence. Just as at FERC, appealsfrom decisions of the Administra-tive Judges are to the Commission,with appeal rights to the U.S.Courts of Appeal.

In sum, there are subtle differencesand many similarities in the con-duct of administrative hearings atFERC and NRC, and I think bothagencies can learn from eachother as they work to ensure thatall decisions are made in a timely,efficient, and equitable manner.Serving the public interest can becomplicated, but it is a rewardingprocess. I feel fortunate to haveworked at both agencies becausethe lawyers that appear beforeboth the ALJs at FERC and the Ad-ministrative Judges at the NRC aresome of the best litigators to befound anywhere.

The Energy Bar Association com-mittees are the lifeblood of the or-ganization, providing anopportunity for members to net-work with fellow practitioners, stayup-to-date with new developmentsin their practice areas and giveback to the organization. EBA'stwenty-one member committeescover nineteen distinct subjectmatters including: Alternative Dis-pute Resolution; Competition andAntitrust; Compliance and Enforce-ment; Demand-Side Resourcesand Smart Grid; Electricity Regula-tion; Environmental Regulation;FERC Practice and AdministrativeLaw Judges; Finance and Transac-tions; International Energy Lawand Transactions; Judicial Review;Legislation; Natural Gas Regula-tion; Nuclear Regulation; Oil andLiquids Pipeline Regulation; PowerGeneration and Marketing; Profes-sional Development, Educationand Ethics; Renewable Energy;State Commission Practice andRegulation; and System Reliabilityand Planning. These committeesconduct an average of two educa-tional events a year focusing ontheir subject matter, provide a re-port to the Energy Law Journal ondevelopments in their subject mat-ter and assist in planning and con-ducting panels in their subjectmatter at the Mid-Year and Annualmeetings. In addition, these sub-ject matter member committeesprovide networking opportunitiesfor members working in the samepractice area.

Two other non-subject mattermember committees round out thegroup of twenty-one. The Pro-grams and Meetings Committee isresponsible for the herculean taskof planning and putting on the Mid-Year and Annual meetings, withinput from the subject matter com-

mittees and the membership ingeneral. The YLC sponsors a vari-ety of programs aimed at educat-ing law students and newpractitioners and provides a forumfor networking and integrating intothe Energy Bar.

The EBA committees plan andcarry out an average of 40 educa-tional and networking events eachyear. Barely a week goes by thatthere is not at least one membercommittee event scheduled on thecalendar. This October alone, theSystem Reliability and PlanningCommittee held a half-day programentitled NERC Compliance & En-forcement for Practitioners; theElectricity Regulation Committeeand Natural Gas Regulation Com-mittee held a reception in honor ofChairman Cheryl A. LaFleur; andthe Natural Gas Regulation Com-mittee and the State CommissionPractice and Regulation Committeeheld a lunchtime event entitledFracking Revisited - Current andPast Developments.

Committee membership is open toall EBA members. Members areasked to renew their membershipat the beginning of each EBA orga-nizational year, which begins im-mediately after the Annual Meetingin the Spring. Committee member-ship does not roll over from year toyear. If you are interested in sign-ing up for a committee mid-year,contact Mary Singletary [email protected] or call 202-223-5625.

Matthew R. Rudolphi


EBA Committees discuss GlobalArbitration & Alternative DisputeResolution in International andDomestic Energy InfrastructureLlyr Rowlands

On Friday, 26th September 2014, the EBA’s Alternative Dispute Resolution(ADR) and the International Energy Law & Transactions Committees co-hosted a brown bag lunch discussion at the Washington, D.C. offices ofHunton & Williams, LLP. A distinguished panel of practitioners was invitedto discuss the topic: “Global Arbitration & Alternative Dispute Resolution inInternational and Domestic Energy Infrastructure.”

Deborah M. Osborne, Chair of EBA’s ADR Committee, began the discus-sion by giving some brief remarks about domestic energy ADR, its value,and success at FERC over a 15 year period. She then handed over pro-ceedings to the discussion moderator, Mr. Salvador Rivera (a ProgramTeam Leader at the World Bank). He emphasized the growing importanceof ADR in the energy sector and the breadth of the topic. Then each ofthe three panelists provided their specific perspective on the topic.

Dr. Grigera Naón (Director of the International Commercial Arbitration Cen-ter of the Washington College of Law, American University) focused hiscomments on the pitfalls of joint operating agreements in the upstream oiland gas industry, drawing on his own experiences as an arbitrator. Ken-neth Beale (Counsel at Wilmer Hale), continued the discussion with obser-vations on ‘an investor’s perspective when arbitrating overseas energydisputes’. He cautioned against hurriedly drafted and ill-conceived disputeresolution provision in contract documents, which could render any futurearbitration costly and potentially in-effectual. Thereafter, he proceeded todiscuss the comparative ease of enforcing ‘arbitral awards’ in foreign juris-dictions under the New York Convention compared to court judgments andtouched on how to approach assertions of ‘sovereign immunity’ by state orparastatal entities.

Jay Range (Partner, Hunton & Williams) expanded on the challenges ofdrafting appropriate ADR clauses, with the goal of avoiding – as he aptlydescribed it – a “litigation sandwich.” He quoted an ADR Survey by theABA Section of Public Utilities, Communications and Transportation Indus-tries and Pepperdine University Straus Institute for Dispute Resolution,which showed how little time or resources are typically spent on draftingADR clauses. He also discussed the specific nature of investment treatydisputes and the role played by ICSID and the Energy Charter Treaty. Fi-nally, he drew on some lessons from his own experience as lead counselto the United Republic of Tanzania and its wholly-owned electric supplycompany, TANESCO, in both commercial and investment treaty arbitra-tions at ICSID involving an independent power plant in Dar es Salaam,Tanzania.

Before closing this lively and informative discussion, the panel respondedto several questions from the floor, particularly on the question of ‘forumshopping’ and adopting tiered ADR clauses, which may include mediationand arbitration.

EBACommitteesHold Programon FERCInvestigations

On September 10th, the Compli-ance & Enforcement Committeepartnered with the FERC Practiceand Administrative Law JudgeCommittee to hold a successfulprogram "Discovery Procedures inFERC Investigations – A 360°Evaluation." The program pre-sented diverse perspectivesamongst the industry, and wasmoderated by Robert Fleishman ofMorrison & Foerster LLP. The livelythree-person panel consisted ofBrooksany Barrowes of BakerBotts L.L.P., John Estes of Skad-den, Arps, Slate, Meagher & FlomLLP, and Geof Hobday, Attorney-Advisor, Office of Enforcement, Di-vision of Investigations, FederalEnergy Regulatory Commission.Over 60 EBA members registeredfor this event either in-person or viateleconference.

Watch for futureeducational programs --

visit EBA Calendar of Events:

http://www.eba-net.org/calendar

EBA Primer Series:EBA and NHA Partnerfor SuccessfulHydropower PrimerAs part of EBA’s Primer Series, EBA and the National Hydropower Associ-ation partnered to present a primer on the hydropower industry. In mid-September, top legal and industry experts in the hydropower industryjoined EBA and NHA in Boston, Massachusetts, to provide “An Introductionto Hydropower Law and Regulation.”

Speakers included John Katz, Deputy Associate General Counsel atFERC, and Barbara Christin, Managing Attorney at FERC. Industry ex-perts, John Devine, Vice President of HDR Engineering, Inc.; Chuck Sen-siba and Julia Wood of the law firm of Van Ness Feldman; and JimHancock of the law firm of Balch & Bingham expertly described the me-chanics and hydraulics of hydropower, the structure of the industry, andthe complex array of governing statutes and regulations. Jeff Leahy, NHA’sDeputy Executive Director, provided an overview of legal and regulatory is-sues facing the hydro industry today. The primer was capped off with asite visit to the Boott Hydroelectric Project in Lowell, MA.

By all accounts, the primer was well-received and a huge success.

EBA expresses is sincere appreciation to Jeff Leahy, Diane Lear, NHA’s Di-rector of Membership Services, and Francesca Blanco, NHA’s Manager ofMeeting and Events, for lending their expertise and enthusiastic organiza-tional support to this exceptional program. EBA also thanks the JAMSResolution Center for providing the venue, Enel Green Power for the on-site tour and to program sponsors, Ballard Spahr LLP, TransmissionDevelopers Inc., and Van Ness Feldman, LLP.

Stay tuned for more information about EBA’s Oil Pipeline Industry Primer,tentatively scheduled for January 2015 in Houston, Texas.

While these challenges are contin-ually changing and developing, mytime with PUC has provided mewith a basic working knowledge ofthe energy industry and its regula-tion. My conversations with regula-tory staff have introduced me to thecomplexity involved with balancingindustry, environment, and con-sumer concerns. Attending industryevents and functions has high-lighted how many stakeholders areinvolved in addressing these ques-tions and the great variety of theirconcerns. Listening to legislativepresentations and hearing presen-ters field questions from legislatorshas broadened my understandingof legislators roles in the regulatoryprocess.

As I finish up my formal legal edu-cation and begin looking into ca-reer paths within the energy lawsector, I will depend heavily on thegeneral energy knowledge I havegained through this experience asa guide to help me choose a direc-tion to pursue. The regulatory con-cerns I have become familiar withand the knowledge I have gainedin that area will allow me to be ahelpful sounding board for futureemployers looking to navigate thecomplex future of energy law orconsidering how to implement it.Regardless of the direction I take, Iwill be more prepared to dive intothe challenge after being allowedthe opportunity to dip my toes inthe water.

CFEBA Update, continued from page 5


FELJ Update Win-Win Relationship with University ofTulsa Linda Walsh

In this update we would like to focus on an aspect of the publication of theEnergy Law Journal that may not be visible to many EBA members – therelationship with the University of Tulsa Law School. The ELJ would not bepossible if it were not for the work of the student editors at the Law School.In 1986, then Editor-in-Chief Bill Mogel formed an alliance with the Univer-sity of Tulsa Law School for the students to provide backup legal researchand to edit the final product. In turn, the student editors are given an op-portunity to write a Note for publication in the ELJ. In recent years, theFoundation has formed a deeper working relationship with the Law School.

In 2010, the FELJ, in conjunction with the faculty of the school, began pro-viding workshops for the student editors at the beginning of each aca-demic year. The workshops are designed to provide the student editorswith an overview of basic regulatory concepts and terminology in the fieldsof energy, environmental, and natural resources law. ELJ Editors andother EBA members along with faculty from the Law School teach theworkshop. The workshops have assisted the student editors in their edu-cation about the practice of energy law, provided them with a better under-standing of the subject matter of the ELJ articles, and facilitated theirresearch and editing work on behalf of the FELJ.

The FELJ also funds an internship for a University of Tulsa Law Schoolstudent to spend a summer working in Washington, D.C. Our 2014 MogelIntern was Blake Johnson, of Bixby, Oklahoma. Blake is a third-year lawstudent at The University of Tulsa College of Law, as well as an articles ed-itor with the Energy Law Journal. This summer Blake has been paired withCongressman Markwayne Mullin on the House Natural Resources Com-mittee. Congressman Mullin represents the Second District of Oklahoma,covering nearly 1/3 of the state. The Mogel Internship is an unpaid intern-ship, however the FELJ assists the student chosen by providing a stipendto help defray living expenses for the summer. Blake reported on a pro-ductive and successful three months, which gave him wide exposure to avariety of energy related projects.

The FELJ funds the publication of the ELJ. Our largest fundraising eventhas been the annual reception for the FERC Administrative Law Judges,held each year at the time of the EBA Annual Meeting. We hope you willremember to attend next Spring.

Since 1980, the Energy Law Journal has provided great value to the En-ergy Bar Association's members. The Journal provides in-depth analyseson current, salient issues affecting members and their clients and busi-nesses and provides a forum for the exploration and understanding of new,cutting edge issues. The Journal is a benefit to EBA members and sub-scriptions are available to non-EBA members.

ELJ articlesare

availableonline atFELJ.org


The Energy Bar Association held its first meeting outside the United States when the Northeast Chapter convenedits First Annual Canadian event in Toronto, Canada, on September 19, 2014, at the National Club, a 120 year oldinstitution in a historic building at the center of Canadas’ financial district.

The program, titled “Explore Key U.S. Canadian Cross Border Energy Issues and Processes,” addressed key is-sues and processes with important cross border implications - energy market manipulation, developments in en-ergy arbitration, and significant challenges for energy regulators.

Gordon Kaiser, a member of EBA’s Board of Directors, was the driving force behind this successful event attendedby close to 60 people. Bob Fleishman of Morrison & Foerster and Louis Legault, the General Counsel of TheRégie de l'énergie served as Co-Chairmen.

After Jason Leif, EBA’s President, warmly welcomed all attendees, the first panel on market manipulation in Cana-dian and U.S. energy markets highlighted the perspective of the “prosecutors.” It featured Glenn McDonald, Direc-tor, Market Assessment and Compliance, Independent Electricity System Operator, and Larry Gasteiger, ActingDirector, Office of Enforcement, FERC, and was moderated by Glenn Zacher.

Next was a panel, moderated Mark Rodger, on the same topic but from the perspective of two well-regarded “de-fenders” - George Vegh from Toronto and Bob Fleishman from Washington, DC.

The luncheon speaker was Dr. Robert Skinner, Executive Fellow, School of Public Policy, University of Calgary,who discussed eloquently his views on “Canada and its Energy Discontents.”

The afternoon session began with a panel on International Energy Arbitrations, moderated by J. William RowleyQC and featuring remarks by Matthew Kronby and David R. Haigh. The concluding panel on Domestic Energy Dis-putes highlighted the views of J. Brian Casey and Eric Van Loon, with Ernie Belyea serving as moderator.

Mary Anne Aldred, General Counsel of the Ontario Energy Board made final remarks and joined EBA PresidentJason Leif in thanking the delegates. The event concluded with a networking reception.

Thanks again to our Sponsors of this wonderful event:

Bennett Jones LLP

Blake, Cassels & Graydon LLP

Borden Ladner Gervais LLP

Energy Arbitration Chambers

Morrison & Foerster LLP

EBA’s First Canadian Program is a Success!


Again, we are trying to provide youwith programming that meets yourneeds.

While you are thinking about whatEBA can do for you….please alsothink about how you can help oth-ers. When you support the Chari-table Foundation of EBA, you alsosupport their important work of giv-ing energy related grants to thoseorganizations in need. Please signup to attend the Charitable Foun-dation of the EBA’s 12th AnnualSilent Auction and Gala. Light Upthe Night is this year’s Silent Auc-tion Gala theme as CFEBA seeksto provide medical solar suitcases,which are manufactured in theUnited States, to the most needy inthe world in an effort to save livesof mothers and children duringchildbirth across the world, wherethere is no access to electricity.Due to lack of energy access, glob-ally, an estimated 289,000 womendie annually from complicationsfrom pregnancy and childbirth.CFEBA is asking all EBA membersto help make the event a huge suc-cess by contributing items to theSilent Auction, attending the Gala,participating in the Silent Auctionand encouraging colleagues to doso as well.

Thank you again for giving me thechance to serve as EBA President.I look forward to hearing your re-sponse to what EBA can do for youand to seeing you at the Mid-YearMeeting and the CFEBA Gala.

country in overseeing the interstatesales and delivery of electricity andnatural gas and its LNG and hydrocertification, and oil pipeline regu-lation. Then he was interviewed bythe Chairman and all of the Com-missioners before being offered theDirectorship.

Little wonder that CommissionerKelly would have sought him out tocome to FERC. Both have ties toNew Mexico so she knew what hewas doing there. She knew that hehad made-to-order expertise in ad-ministrative law and due process.He was a Professor of Law at theUniversity of New Mexico and wasrecognized for his excellence inteaching as the recipient of theDickinson Professor of Law award.Among other things, he taught ad-ministrative law and constitutionallaw, subjects that obviously standhim in good stead as a FERC

Commissioner as well as an En-forcement Director. Added to thatwere his responsibilities as theUnited States Attorney for the Dis-trict of New Mexico. One of hisroles was to take over the Wen HoLee case involving securitybreaches at the Los Alamos Na-tional Laboratory. While actions bythat Office prior to his tenure werecriticized by the trial judge, JamesParker, Mr. Bay was himself laudedby Judge Parker as “outstanding” in

his handling of that case, andearned Judge Parker’s “highest re-gard.” Mr. Bay did not volunteerthe aptness of this background but,when we suggested it must havebeen helpful to him at FERC, hedid agree. Saying it was an “inter-esting” and “fair” point, he re-marked that, “Throughout my timeat FERC, I have been able to drawupon my experiences and thetypes of law that I taught, whetheradministrative law or constitutionallaw, and I suspect that as a Com-missioner, I will continue to do thesame.”

Desiring to Move Up atFERCInterestingly, Mr. Bay had com-mented to us in that Fall 2009 inter-view that he saw the world ofenergy regulation rapidly changing.So much so that he pointed out:“Books on energy law that werewritten just a few years ago seemhopelessly out of date.” By con-trast, the field that he was about tofocus on as Enforcement Directorwas barely touched on if at all inthose energy law treatises. As Mr.Bay said to us, presciently in 2009,“An energy lawyer in the twenty-first century has to understand theenergy markets in which energyproducts are traded.”

It is probably because he pos-sesses precisely this 21st centuryenergy markets expertise after fiveyears heading up anti-manipulationenforcement activities at FERCthat the White House may haveseen Mr. Bay as a logical choicefor a vacancy on the full Commis-sion. He told us that in early 2013,the White House asked him if hewould care to name a position forwhich he would like to be consid-ered in the second Obama Admin-istration. His response was that hewould like to be nominated as a


Bay , continued from page 1

President’s Message, continued frompage 2

Expects to “draw uponmy experiences and thetypes of law that Itaught, whetheradministrative orconstitutional law.”


FERC Commissioner. When weasked if he might have indicated al-ternative choices, he said that“FERC was at the top of my list.”As he expressed it, “It is a greathonor to be a Commissioner.” Heis “committed to doing the best jobthat I can as a Commissioner.” Asto why, he explains that, “Every dayyou learn something new. Energylaw is constantly changing as in-dustries change and technologydevelops. That is one of the thingsthat make this area so exciting.”

He also told us, “Honestly, I wassurprised,” when we asked himpoint blank if he was surprised atthe opposition that his nominationdrew from some quarters when hewas named to be Chairman of theagency. In a bit of understatement,he called the confirmation process“more interesting than I thought itwould be.” He appeared to be con-tent to leave it at that. He chosenot to take us up on our invitationto make news by answering critics.Instead, he focused on the fact thatmany former Commissioners werevery helpful to him in the confirma-tion process. This caused him tosee that “people care about FERCas an institution and about energylaw, particularly former Commis-sioners, who are very generous oftheir time and advice.”

He was also willing to acknowl-edge that there was merit to ourleading questions when we sug-gested to him that his Admin/ConLaw scholarship in teaching awardand his cutting edge, laser-likefocus on energy market develop-ment might explain why the Execu-

tive Branch viewed his request tobe a Commissioner so favorablythat they wanted him to take overas the Chairman. He also saidthat the “breadth of the work of theOffice of Enforcement” helped pre-pare him to perform his duties as aCommissioner. He pointed out thatit covers investigations, audits, ac-counting, market oversight, and an-alytics in surveillance of themarkets.

At the same time, he went out ofhis way to praise the particular ex-pertise that each of his colleaguesbrings to the Commission. Hesees the diversity of the Commis-sioners’ talents as strengtheningthe agency. “All of our strengthscome together given our respectivebackgrounds and experiences.” Inparticular, he expressed great re-spect for Chairman LaFleur andtalked of how closely he workedwith her when he was Director ofthe Office of Enforcement, addingthat he “enjoys working with hernow as a Commissioner.” And hepointed out that the FERC Staff is“outstanding” and “provides theCommission with a tremendousamount of support” coupled withthe three “very smart, very knowl-edgeable, and very capable” advi-sors apiece that assist theindividual Commissioners.

He also remarked on how he isnow exposed to the “full range” ofmatters handled by the Commis-sion, which exceed the focus hehad previously, as broad as thatwas. He told us that he is “verymuch engaged in developing myown background and expertise withrespect to those areas.” The“tremendous respect” he alreadyhad for the “great work” the Com-mission does has even grown ashe sees up-close all that the Com-mission has on its plate.

Tackling the Job Day byDay

He is “very much engaged in dig-ging into the issues” before theCommission. He “looks forward toreviewing the comments that theCommission receives and engag-ing in discussions with his col-leagues on those matters.” So far,“It’s been tremendously exciting.And it’s also been a lot of fun to beexposed to the broader range ofwork.”

“It would be premature for me toentertain any thoughts as to what Imight do as Chairman,” was his re-sponse to our question as to whathe might do as Chairman. In par-ticular, he was clear that he is notexercising an heir-presumptive role.For example, while ChairmanLaFleur consults all of the Com-missioners when major personneldecisions are being made, hestated that “it is her call and I verymuch respect her ability to choosethe team that she wants to put inplace.”

He also has put into place his ownStaff. “I feel very lucky to have puttogether the team that I have.” His

The confirmation process“was more interesting than Ithought it would be.”

Bay, continued from page 15


“It is her [LaFleur’s] call and Ivery much respect her abilityto choose the team that shewants to put in place.”


Advisors are: Tatyana Kramskaya,former Branch Chief in OMER-Eastwith a focus on PJM; Janel Bur-dick, former Branch Chief in the Di-vision of Analytics andSurveillance; and Bob Kennedy,who came from the Solicitor’s Of-fice. His Administrative Staff con-sists of Laura Vendetta andBenjamin Williams, both of whompreviously worked for Commis-sioner Norris.

In leaving the Office of Enforce-ment, he expressed “a great dealof confidence” in its now Acting Di-rector, Larry Gasteiger.

He told us that he began voting onnotational orders as soon as hewas sworn in on August 3rd. Aftera month of voting, he has foundhimself issuing one partial concur-rence and dissent on a petition fordeclaratory order in which he tooka more expansive interpretation ofthe Commission’s Natural Gas Actjurisdiction. On everything else, hehas been “part of a consensus” onall notational items issued by theCommission.

And he told us that he has a “num-ber of different priorities.” First, heintends to be “fair, thoughtful, andbalanced in my decision-makingprocess and to seek a consensuswhenever possible.” He sees con-sensus as providing greater regula-tory certainty and greater comityon the Commission.

Second, he intends to “strive to callballs and strikes.” By that, he in-tends to “decide matters based onthe facts and the law.” In that re-gard, when he reviews Initial Deci-sions and records, the test heapplies is that he “has to be com-fortable with the legal analysis andwhether the Administrative LawJudge properly applied the law.”He also looks for “evidentiary sup-port for the factual findings.” Andhe does this “within the context of

the issues that are raised by theparties to the proceeding.” Hedoes not do so de novo, but ratherbelieves it is important to respectthe principle of stare decisis.” Heelaborated that “Commissionprecedent should be followed” andthat it is important to provide “regu-latory certainty to market partici-pants.”

Third, “infrastructure, both electricand gas, is a priority.” And, fourth,he intends to work to “drive greaterefficiency” in the markets. He ob-served that the Commission hasdone a lot in the latter area. Hegives the Commission praise formaking sure that the markets “haveintegrity and that there is a levelplaying field for all market partici-pants.”

A fifth priority is the whole gamut ofreliability in its broadest sense, in-cluding physical security and cy-bersecurity, and gas and electriccoordination. All in all, he seems tobe eager to dive in to just abouteverything and anything thatcomes his way.

Thoughts on VariousEntitiesBay believes it is important to“have good lines of communicationand collaborate with other agen-cies on issues that affect FERC.”He is going to attend his firstNARUC conference in Novemberand calls it “very important” tomaintain such communicationswith state commissions. The sameholds true with both Houses ofCongress and the relevant Com-mittees. And, concerning the spe-cialty press and trade press, hethinks they do a good job of cover-ing FERC whereas the mainstreampress has “more difficulty” in cover-ing the agency because of the spe-cialized nature of its work.

Bay Side

What he reads: Lots. “The Power Surge” by Michael Levi.He got an autographed copy of the bookwhen the author came to speak at FERC.He is reading a multi-volume work of fiction,namely, Edward St. Aubyn’s Patrick Melrosenovels (a pentalogy). He likes “The BoneClocks” and “Cloud Atlas” by David Mitchellbecause of Mitchell’s use of complex, multi-ple narratives that jump back and forth intime.

What He Would Like to Do if HeHad More Spare Time:Bay does not have much free time, as heworks six days a week and “carves outSunday for reading.” But he would like to domore fly fishing. He likes to get caught inthe moment. The fish itself is not the pointof the exercise. “Many men go fishing alltheir lives without knowing that it is not fishthey are after.” He attributes that quote toThoreau, but has been told that it may beapocryphal. He would also like to do morecooking. “It is very relaxing and you get toenjoy the fruits of your work.” He last madea Pan Asian Southwestern dish, with NewMexico green chili peppers and Japanesesoy sauce. And he would like to do morerunning. He averages four to six miles perrun.

Favorite Sound: The sound made by pianos. His wife is aclassical pianist.

Least Favorite Sound:The sound of human distress.

Favorite Word or Phrase:“Dinner’s ready.” Not so much becausehe can eat it as because he hasfinished cooking it.

Walter Mitty Dream Career:

Professional sports player, either a basket-ball player or soccer player.





Thoughts on the EnergyBarCommissioner Bay calls the en-ergy bar “impressive.” He hasfound the practitioners to be“smart, engaged, and knowledge-able about FERC and itsprocesses.” He has “enjoyed” hisinteractions with lawyers in FERCproceedings. He finds that there isa “collegiality” among the membersof the energy bar. He attributesthis to some extent to the fact thatit is a fairly small bar relative tomany other fields of practice. Onbehalf of the bar, we thanked himfor agreeing to speak at the EBAMid-Year Meeting and Conferencein November. He laughed abouthaving been assigned the“dreaded lunchtime” speaking slot.

For our part, we can’t wait to bewith him again and hear his com-mentary, as well as the questionsthat you may bring to the event,Dear Reader.


2014 Mid-Year Meeting & Conference

Join your friends and colleagues for two-days of educational programingincluding CLE and outstanding networking opportunities on November 4and 5 in Washington DC.

Is 2014 the beginning of major regulatory changes that will transformAmerica’s energy industry? The Energy Bar Association’s 2014 Mid-YearMeeting & Conference will provide two full days of discussions examiningthis question. The first morning will focus on recent changes in the compli-cated relationship between state and federal agencies in their regulatoryroles, including the D.C. Circuit’s recent decision raising dramatic ques-tions about FERC’s authority over demand response programs. The sec-ond morning will focus on the evolving nature of the practice of energy lawin 2014 and EPA’s major proposal to regulate carbon emissions from exist-ing coal-fired power plants. Additional panels will focus on environmentalreview of natural gas pipeline construction, the operation of carbon tradingmarkets, and the impact of FERC’s policies on the electric transmission in-dustry.

• Keynote Speakers:Vanessa Allen Sutherland, Chief Counsel Pipeline and Hazardous Material Safety Administration

Norman C. Bay, Commissioner, Federal Energy Regulatory Commission

Glen Boshart, SNL Energy Report• 14 Educational Sessions• Numerous networking opportunities• Two great special events:

• Young Lawyers Committee Reception, Monday Nov. 3• CFEBA Gala and Silent Auction, Tuesday Nov 4th

The conference brochure and agenda are available to download at:http://www.eba-net.org/sites/default/files/ebaBROCHUREfinal.pdf

To Register visit: http://www.eba-net.org/2014-mid-year-meeting-confer-ence or call EBA at (202) 223-5625.


From the Book Jacket:

Few industries in the U.S. are as stuck in the past as our utilities are. In the face of growing challenges from cli-mate change and the need for energy security, a system and a business model that each took more than a cen-tury to evolve must now be extensively retooled in the span of a few decades. Despite the need, many of thetechnologies and institutions needed are still being designed or tested. It is like rebuilding our entire airplane fleet,along with our runways and air traffic control system, while the planes are all up in the air filled with passengers.

In this accessible and insightful book, Peter Fox-Penner considers how utilities interact with customers and howthe Smart Grid could revolutionize their relationship. Turning to the supply side, he considers the costs of, andtradeoffs between, large-scale power sources such as coal plants and small-scale power sources close to cus-tomers. Finally, he looks at how utilities can respond to all of these challenges and remain viable, while financinghundreds of billions of dollars of investment without much of an increase in sales.

Upon publication, Smart Power was praised as an instant classic on the future of energy utilities. This AnniversaryEdition includes up-to-date assessments of the industry by such leading energy experts as Daniel Estes and JimRogers, as well as a new afterword from the author. Anyone who is interested in our energy future will appreciatethe clear explanations and the in-depth analysis it offers.

Join EBA Book Club:

Every EBA Member is invited join for any or all quarterly sessions of the EBA Book Club. Let this be your inspira-tion to read industry-related literature at your own pace and discuss, ask questions, share perspectives and de-bate the book’s themes and conclusions with other EBA Members.

The EBA Book Club has both virtual and physical platforms to interact with other members. Virtually, the EBABook Club will meet under “Energy Bar Association Book Club” at Goodreads.com. Details follow:

Virtual EBA Book Club:

Please join the online EBA Book Club forum at www.goodreads.com (free registration required). Once you createan account, search for and join the Group “Energy Bar Association Book Club.”

EBA Book Club Live:

!!! SAVE THE DATE !!!

On November 20, 2014, Wall Street Journal reporter and famed author of the 3Q, 2014 Book of the QuarterSteven Mufson will join us live to discuss Keystone XL: Down the Line and other energy news. Details to followin EBA Insights!

If you have not yet read the 3Q Book, there is still time! It is a short eBook available for download at major onlinebook stores.

Coming Attractions:

Look for the 1Q, 2015 Book of the Quarter in the next edition of EBA Update!

Book recommendations are welcome – please email any suggestions to the Book Club Moderator at: [email protected].

Happy reading!

Energy Bar Association Book Club NewsflashPresenting the 4Q, 2014 EBA Book Club

Book of the Quarter:

Smart Power Anniversary Edition: Climate Change, the Smart Grid,

and the Future of Electric UtilitiesBy Peter Fox-Penner

Fracking Revisited -- Current and Past DevelopmentsOctober 21, 2014, Dentons US LLP, Washington, DC

ISO/RTO Governance and ADR Issues and ModelsOctober 22, 2014, Federal Energy Regulatory CommissionWashington, DC

Pre-Conference Reception hosted by the Young LawyersCommitteeNovember 3, 2014, DC Coast Restaurant, Washington, DC

Twelfth Annual Fundraising Gala & Silent Auction November 4, 2014, Renaissance Hotel, Washington, DC

2014 Mid-Year Meeting & ConferenceNovember 4-5, 2014, Renaissance Hotel, Washington, DC

EBA Reception for Commissioner Norman BayDecember 3, 2014, Jones Day, Washington, DC

Check the EBA Calendar for more information on any of these events or ifyou have any quiestions please contact Associate AdministratorMichele L. Smith at 202.223.5625 or [email protected].

Upcoming EBA Events

DIVERSITY POLICY STATEMENT: The Energy Bar Associa-

tion is committed to the goals of fostering an inclusive and

diverse membership and increasing diversity across all lev-

els of the Association, so as to reflect the diversity of the

energy industry and the Nation as a whole. Attorneys, non-

attorney professionals in the energy field and law students

are welcome to join our ranks regardless of race, creed,

color, gender, ethnic origin, religion, sexual preference, age,

or physical disability and are encouraged to become active

participants in the Association’s activities.

Lisa Levine, ExecutiveDirector congratulatesMichele (Duehring) Smithon her tenth anniversarywith EBA. EBA hasenjoyed the dedicationand enthusiasm Michelehas demonstrated duringher tenure with EBA.

EBACongratulatesMichele Smithon her TenthYear with EBA

Documents

EBA Update - Energy Bar Association › assets › 1 › 6 › Fall_2014_Newsletter.pdf · EBA Update Fall 2014 President’s Message 2 CFEBA Update 3 ... President’s Message Jason