What is the Role of an Electric Power Attorney?
- Electric Power Attorney provides assistance to the electric power company, a consumer, a municipality, or a non-government entity.
- Typical areas of practice for an electric power lawyer include regulatory analysis, advocacy, and interpretation in connection with proceedings before any regulatory agency.
- In a litigation context, attorneys assist in representing a client before a regulatory agency in seeking a license, permit, or approval issued by an agency. Legal representation is also often sought by parties during appeals of regulatory decisions or orders to the appropriate appellate court.
- An electric attorney assists in responding to regulatory enforcement actions, participating in the formal rulemaking process, providing legal advice on compliance with laws and regulations, or representing a client in the purchase and sale, or financing of electric services.
- By participating in regulatory proceedings, drafting landmark deregulation legislation, and handling related appellate litigation, they contribute to the deregulation and restructuring of the nation's electric industries.
Legal and Regulatory Framework Governing Electric Power
The Federal Power Act of 1920, since amended many times, created the Federal Energy Regulatory Commission (FERC or Commission). This agency regulates the interstate transmission of electricity. The Commission:
- Reviews mergers and acquisitions and other corporate transactions by electricity companies;
- Evaluates submitted siting applications for electric transmission projects;
- Licenses and periodically reviews private, municipal, and hydroelectric projects;
- Ensures the dependability of the high voltage interstate transmission systems through reliability standards; and
- Oversees environmental issues associated with hydroelectricity matters.
FERC takes its mission seriously and has an aggressive enforcement program that focuses on:
- Market manipulation
- Anticompetitive conduct
- Violations of electric reliability standards
- Other threats to the transparency of the regulated market.
The Commission has broad powers to investigate and possesses the necessary tools to do so. Here is an overview of its investigative process.
FERC's Division of Audit and Accounting (DAA) has the legal authority to perform public electric utility audits. A company subject to an audit receives a commencement letter. This letter "describes the purposes and scope of the audit." It requires the audited company to provide DAA's audit team free access to its property, accounts, records, and other documentation.
Based on the information obtained through its audit, DAA issues a draft audit report to the company. It includes DAA's findings and recommendations for corrective action. Typically, the audited business has 15 days to respond informally. This response may contain the company's alternative recommendations and corrective actions to address the audit staff's concerns.
After considering the company's informal response, DAA issues its conclusions, to which the audited business provides a formal response. This will state:
- Whether the company agrees with the audit findings;
- The status of any corrective actions being undertaken; and
- Alternative resolutions to any of DAA's recommended corrective actions.
Once the targeted company's responses are received, Commission staff will review them. If they determine the response is insufficient, they likely will recommend further action to the Director of the Office of Enforcement. If the Director agrees, FERC will issue a Preliminary Notice of Violation. Commission staff and the company will then re-engage in settlement discussions.
If a settlement is reached, the parties will enter into a Stipulation and Consent Agreement. If the parties are unable to settle, then FERC will issue an Order to Show Cause. Suppose settlement still is not possible after issuance. In that case, the Commission likely will take administrative action against the company, which has the right to appeal such action in federal court.
Most targeted companies make substantial efforts to avoid administrative actions because the resulting fines can be severe. For example, FERC fined Barclays $70 million and ordered it to disgorge $35 million in profits after the Commission accused the company of manipulating energy markets in the Western United States.
While FERC has extensive powers, our federal system of government means that much electric power oversight remains with state Public Utility Commissions. These state agencies regulate the retail electricity sales to consumers (including rates) and the construction of electric generation facilities. They have their own enforcement divisions.
Careers for Electric Power Attorneys
There are two broad career options for electric power lawyers – public service and the private sector.
Public Career Opportunities
Electric power attorneys have many prospects in the public arena.
FERC Staff Attorneys
These electric power lawyers litigate cases in FERC's administrative proceedings and draft associated motions and briefs.
They also research and prepare documents like Preliminary Notices of Violation, Stipulation and Consent Agreements, and Orders to Show Cause. Finally, the draft proposed rules for the Commission and provided it other legal support.
FERC Administrative Law Judge
Administrative Law Judges (ALJs) adjudicate FERC's administrative actions. They conduct hearings, render decisions, and facilitate settlement hearings.
State OpportunitiesLike the federal government, the states have enforcement agencies similar to FERC to enforce actions related to their role in electricity. For example, there is the California Public Utilities Commission and the New York State Public Service Commission. These state agencies hire electric power attorneys as well.
Private Career Opportunities
Electric power attorneys also have options in the private sector.
Defense Attorney – FERC and State Agencies
Massive electric power companies like Pacific Gas & Electric and Florida Power & Light are billion-dollar industries. For example, in 2019, Pacific Gas & Electric reported more than $17 billion in revenue.
Occasionally, businesses like these become the target of federal or state investigations or enforcement actions. They hire electric power lawyers to negotiate with or litigate against FERC and state equivalents alternatively.
The electric power lawyer employed by these companies have several roles:
- Replying to FERC's commencement letters and associated audits. The lawyer is present while FERC performs its audit and accesses its property, accounts, records, and other documentation.
- Answering FERC's draft audit reports. The attorney responds to the Commission's concerns and proposes possible corrective actions to prevent FERC's further administrative actions.
- Responding to the Commission's Notices of Violations and Orders to Show Cause.
This involves reviewing the notice and entering into negotiations with FERC to see if a settlement is possible. If so, the attorney will work with FERC on the Stipulation and Consent Agreement. If a settlement is not possible, the attorney will have to review FERC's Order to Show Cause.
- Administrative Proceedings. The targeted company's electric power lawyer represents the company in FERC's hearings and adjudications before the Commission's administrative law judge.
- Federal Court. Represents the business to defend it against FERC's allegations in federal district court. Suppose the company disagrees with the district court's decision. In that case, the electric power attorney will likely retain outside counsel specializing in appellate practice to representing the company in the U.S.Court of Appeals and even the Supreme Court.
While this is the federal process, the electric power attorney would follow similar procedures when dealing with state public utility commissions' investigations and enforcement actions.
Defense Attorney – Civil Lawsuits
On November 18, 2018, the most deadly and destructive wildfire in the history of California occurred. Allegedly started by a faulty electric transmission line owned by Pacific Gas & Electric, the fire rapidly expanded to an area of 240 square miles and destroyed the town of Paradise, California. At least 85 civilians died, and five firefighters were injured. The fire destroyed more than 18,000 structures and caused over $16 billion in damages.
It did not take long for the lawsuits to be filed against Pacific Gas & Electric. Armies of electric power defense attorneys are involved in the utility's defense in court.
Due to the age of the nation's electric transmission infrastructure, more wildfires and similar events will occur, leading to a steady demand for electric power lawyers in civil defense.
Defense Attorney – Criminal
Public utilities, in addition to being sued for civil issues, can be criminally charged. For example, Pacific Gas & Electric ultimately pled guilty to 84 counts of involuntary manslaughter in the fire described above. Electric power attorneys specializing in criminal defense are needed for these types of criminal prosecutions.
Transactions, Mergers, and Acquisitions
Electric power companies and private firms are continually entering into transactions, mergers, and acquisitions. They often hire outside counsel for assistance. The electric power attorneys that work for these retained law firms:
- Negotiate and seek approval of wholesale power and transmission venture contracts by appropriate regulatory bodies;
- Prepare documentation for developing financial joint generation and transmission ventures;
- Draft and negotiate power purchase agreements and other contracts necessary to implement related projects; and
- Represent electric power companies in the appellate process at federal and state levels.
Law School Professor
Some law schools have institutes or degree specializations geared toward the electric power field. This is an excellent opportunity for experienced regulatory or civil defense electric power attorneys to change careers later in life and be law school professors.
How do I Become an Electric Power Lawyer?
There are a couple of things interested individuals can do. First, consider a major in electrical engineering or business before law school. When looking at law schools, consider attending one that has a specialized program in energy policy. Both will serve you well and help you on the way to being a successful electric power attorney.
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About Harrison Barnes
Harrison Barnes is a prominent figure in the legal placement industry, known for his expertise in attorney placements and his extensive knowledge of the legal profession.
With over 25 years of experience, he has established himself as a leading voice in the field and has helped thousands of lawyers and law students find their ideal career paths.
Barnes is a former federal law clerk and associate at Quinn Emanuel and a graduate of the University of Chicago College and the University of Virginia Law School. He was a Rhodes Scholar Finalist at the University of Chicago and a member of the University of Virginia Law Review. Early in his legal career, he enrolled in Stanford Business School but dropped out because he missed legal recruiting too much.
Barnes' approach to the legal industry is rooted in his commitment to helping lawyers achieve their full potential. He believes that the key to success in the legal profession is to be proactive, persistent, and disciplined in one's approach to work and life. He encourages lawyers to take ownership of their careers and to focus on developing their skills and expertise in a way that aligns with their passions and interests.
One of how Barnes provides support to lawyers is through his writing. On his blog, HarrisonBarnes.com, and BCGSearch.com, he regularly shares his insights and advice on a range of topics related to the legal profession. Through his writing, he aims to empower lawyers to control their careers and make informed decisions about their professional development.
One of Barnes's fundamental philosophies in his writing is the importance of networking. He believes that networking is a critical component of career success and that it is essential for lawyers to establish relationships with others in their field. He encourages lawyers to attend events, join organizations, and connect with others in the legal community to build their professional networks.
Another central theme in Barnes' writing is the importance of personal and professional development. He believes that lawyers should continuously strive to improve themselves and develop their skills to succeed in their careers. He encourages lawyers to pursue ongoing education and training actively, read widely, and seek new opportunities for growth and development.
In addition to his work in the legal industry, Barnes is also a fitness and lifestyle enthusiast. He sees fitness and wellness as integral to his personal and professional development and encourages others to adopt a similar mindset. He starts his day at 4:00 am and dedicates several daily hours to running, weightlifting, and pursuing spiritual disciplines.
Finally, Barnes is a strong advocate for community service and giving back. He volunteers for the University of Chicago, where he is the former area chair of Los Angeles for the University of Chicago Admissions Office. He also serves as the President of the Young Presidents Organization's Century City Los Angeles Chapter, where he works to support and connect young business leaders.
In conclusion, Harrison Barnes is a visionary legal industry leader committed to helping lawyers achieve their full potential. Through his work at BCG Attorney Search, writing, and community involvement, he empowers lawyers to take control of their careers, develop their skills continuously, and lead fulfilling and successful lives. His philosophy of being proactive, persistent, and disciplined, combined with his focus on personal and professional development, makes him a valuable resource for anyone looking to succeed in the legal profession.
About BCG Attorney Search
BCG Attorney Search matches attorneys and law firms with unparalleled expertise and drive, while achieving results. Known globally for its success in locating and placing attorneys in law firms of all sizes, BCG Attorney Search has placed thousands of attorneys in law firms in thousands of different law firms around the country. Unlike other legal placement firms, BCG Attorney Search brings massive resources of over 150 employees to its placement efforts locating positions and opportunities its competitors simply cannot. Every legal recruiter at BCG Attorney Search is a former successful attorney who attended a top law school, worked in top law firms and brought massive drive and commitment to their work. BCG Attorney Search legal recruiters take your legal career seriously and understand attorneys. For more information, please visit www.BCGSearch.com.
Harrison Barnes does a weekly free webinar with live Q&A for attorneys and law students each Wednesday at 10:00 am PST. You can attend anonymously and ask questions about your career, this article, or any other legal career-related topics. You can sign up for the weekly webinar here: Register on Zoom
Harrison also does a weekly free webinar with live Q&A for law firms, companies, and others who hire attorneys each Wednesday at 10:00 am PST. You can sign up for the weekly webinar here: Register on Zoom
You can browse a list of past webinars here: Webinar Replays
You can also listen to Harrison Barnes Podcasts here: Attorney Career Advice Podcasts
You can also read Harrison Barnes' articles and books here: Harrison's Perspectives
Harrison Barnes is the legal profession's mentor and may be the only person in your legal career who will tell you why you are not reaching your full potential and what you really need to do to grow as an attorney--regardless of how much it hurts. If you prefer truth to stagnation, growth to comfort, and actionable ideas instead of fluffy concepts, you and Harrison will get along just fine. If, however, you want to stay where you are, talk about your past successes, and feel comfortable, Harrison is not for you.
Truly great mentors are like parents, doctors, therapists, spiritual figures, and others because in order to help you they need to expose you to pain and expose your weaknesses. But suppose you act on the advice and pain created by a mentor. In that case, you will become better: a better attorney, better employees, a better boss, know where you are going, and appreciate where you have been--you will hopefully also become a happier and better person. As you learn from Harrison, he hopes he will become your mentor.
To read more career and life advice articles visit Harrison's personal blog.