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About Jackie

As antitrust counsel, Jackie Java represents companies in all antitrust aspects of mergers and acquisitions, from initial antitrust analyses and the preparation of Hart­-Scott-­Rodino filings, through government investigations and Second Requests. She frequently counsels clients on the competitive implications of proposed transactions and strategies for obtaining regulatory clearance. Jackie has counseled many clients on the antitrust pitfalls associated with due diligence and integration planning in connection with mergers, particularly where the parties operate in highly concentrated industries. She has also assisted with filings required by foreign antitrust authorities. Jackie was part of the Bracewell antitrust team recognized by Legalease’s The Legal 500 United States in Antitrust-Merger Control (2017-2018). 

Jackie also advises clients involved in transactions and day-­to-­day operations that raise antitrust issues regarding interactions among competitors, the formation of joint ventures, distribution and pricing policies and programs, information exchanges, and allegations of price fixing, market allocation, and other anticompetitive practices. Jackie is particularly experienced in managing complex relationships in industries where companies simultaneously act as competitors, customers and collaborators. Jackie is also experienced in developing and implementing industry-specific antitrust training and compliance programs. In addition, she serves as antitrust counsel to trade associations, informal groups seeking to establish trade associations and clients seeking to participate in information exchanges or third­-party industry studies.

As antitrust counsel, Jackie represents clients in many industries. She has particular experience with energy­-related businesses, including power generation, pipeline transportation and storage, natural gas and power trading, oil and gas field services and bulk liquids storage.                           


Recent Notable Matters

TC Energy Corporation — approximately $1.275 billion sale of US midstream assets held by its subsidiary, Columbia Midstream Group, to a subsidiary of UGI Corporation

Upper Bay Infrastructure Partners — acquisition of Tidewater Transportation & Terminals, a multi-commodity transportation, terminal, and marine construction and repair company serving the Pacific Northwest, from Stonepeak Infrastructure Partners. Upper Bay Infrastructure Partners was the lead investor of a group consisting of Ullico, funds and accounts under management by BlackRock, Silverfern and certain other co-investors.  

Halcón Resources Corporation — $325 million divestiture of water infrastructure assets across the Delaware Basin to a subsidiary of WaterBridge Resources LLC

East Texas Medical Center Healthcare System — sale of substantially all assets to Ardent Health Services, including a network of 9 hospitals, 39 clinics, 2 inpatient facilities, 13 regional rehabilitation facilities, physician clinics, 2 emergency centers, regional home health services covering 41 counties, a comprehensive seven-trauma center care network, and an EMS fleet of more than 45 ambulances and 4 helicopters. In connection with the acquisition, Ardent and The UT Health Science Center formed a partnership and will invest more than $125 million in the new UT Health East Texas health system to support operations and fund improvements.

Holly Energy Partners, L.P. — $250 million acquisition from Plains All American Pipeline, L.P. of the 50 percent and 75 percent interest in Frontier Aspen LLC and SLC Pipeline LLC, respectively, that Holly Energy Partners does not already own

Great Plains Energy Incorporated — stock-for-stock merger of equals transaction with Westar Energy, Inc., creating a company with a combined equity value of approximately $14 billion, and with nearly 13,000 MW of generation capacity and more than 51,000 miles of distribution lines

Chevron Corporation — sale to ONEOK Partners, LP of the Mesquite Pipeline and its 80% interest in the West Texas LPG Pipeline Limited Partnership for approximately $800 million

Southern Waste Systems/Sun Recycling — sale of residential, commercial, and industrial solid waste collection, processing/recycling and transfer operations and assets to Waste Management Inc. of Florida

Alinda Capital Partners and GE Energy Financial Services — sale of SourceGas Holdings LLC to Black Hills Corp. for $1.89 billion

American electric power holding company — $2.8 billion sale of its Midwest merchant generation business to a subsidiary of Dynegy Inc., which includes ownership interests in 11 power plants with a total capacity of approximately 6,100 MW, as well as Duke’s competitive retail electric and gas business; Platts Global Energy Awards, 2015 Strategic Deal of the Year

Rockland Capital, LLC and its affiliate, Wolverine Power Holdings, LLC — sale of 100 percent of the equity interests in Michigan Power Limited Partnership to Osaka Gas Michigan Power, LLC, a subsidiary of Osaka Gas USA Corporation

The Sterling Group — sale of Universal Fiber Systems, a manufacturer of high-performance, specialty synthetic fibers, to funds managed by HIG

Phillips 66 — exchange of Phillips Specialty Products Inc. to Berkshire Hathaway Inc. for shares of Phillips 66 stock held by Berkshire Hathaway affiliates, valued at approximately $1.4 billion

Old World Industries, LLC and Old World Management, Inc. — sale of its chemicals business to Indorama Ventures PCL for $795 million

Apache Corporation — $3.75 billion sale of its Gulf of Mexico Shelf operations and assets to Fieldwood Energy LLC, an affiliate of Riverstone Holdings

FTS International, Inc. — sale of substantially all of the assets of its proppant mining and processing business and related logistics assets to Fairmount Minerals

Kinder Morgan, Inc. — sale of certain bulk terminals operations to Watco Companies, LLC

Rockland Capital, LLC — acquisition of a portfolio of six generating plants with a combined generation capacity of 972.5 MW from AES Ohio Generation, LLC

Talen Energy Corporation — $189 million sale of 100 percent equity interest in Interstate Energy Company LLC, Talen's pipeline subsidiary, to Adelphia Gateway, LLC

Arroyo Energy Investment Partners LLC — acquisition of the Broad River Energy Center, an 847 MW natural gas-fueled electric generation plant located in Gaffney, South Carolina from affiliates of Energy Capital Partners

W-H Energy Services, Inc. — $3.2 billion merger with Smith International, Inc.

The Sterling Group — sale of B&G Crane Service to NCSG Crane & Heavy Haul Corporation

One of the largest energy companies in North America — sale of interests in two natural gas pipeline systems for over $6 billion

Howard Midstream Energy Partners, LLC — purchase of northeast Pennsylvania gathering assets from Southwestern Energy Company for $500 million

Apache Corporation — $7 billion acquisition of BP’s oil and gas operations, acreage and infrastructure in the Permian Basin of West Texas and New Mexico and in Egypt's Western Desert, as well as BP’s upstream natural gas business in western Alberta and British Columbia

Publications and Speeches

"Criminal Prosecutions over No-Poaching Arrangements Are Coming," Society for Human Resource Management, April 5, 2018.

“Beating the Competition: Antitrust Issues in Mergers & Acquisitions,” Recycling Today, May 2016.

ABA Premerger Notification Practice Manual, Fifth Edition, February 2015.

“FTC Broadens Notification Requirements for Transfers of Pharmaceutical Patent Rights,” IP Today, January 2014.

“Deal Makers Beware: Recent Trends in U.S. Merger Enforcement,” CPI Antitrust Chronicle, October 2012.

“Agencies Approach Merger Enforcement More Aggressively,” New York Law Journal, August 2012.

“Implications of Recent Antitrust Developments and Trends for M&A,” The Antitrust Counselor, July 2012.



The George Washington University Law School,
The Pennsylvania State University,

Bar Admissions

District of Columbia


American Bar Association, Antitrust Law Section
Women’s Energy Network, D.C. Chapter



Criminal Prosecutions Over No-Poaching Arrangements Are Coming

April 5, 2018
Society for Human Resource Management

Deal of the Week: $235 Million Energy Deal

October 9, 2014
Texas Lawyer - Houston Bureau



FTC Narrows Scope of HSR Reporting Exemption for Certain Acquisitions

July 24, 2015

On July 20, 2015, the Federal Trade Commission (FTC) released revisions to its interpretation of the rule, 16 C.F.R. §802.5, that exempts certain acquisitions of "investment rental property assets" from reportability under the Hart-Scott-Rodino (HSR) Act. The HSR Act requires that mergers and acquisitions exceeding certain...

Latest Chapter in New York Market Manipulation Case: Court OKs Morgan Stanley's $4.8 Million Settlement

August 10, 2012

On August 7, 2012, U.S. District Judge William H. Pauley III granted the Department of Justice Antitrust Division's (DOJ) motion for entry of a consent decree requiring Morgan Stanley to disgorge $4.8 million for its role in an allegedly illegal swap agreement that allowed KeySpan Corporation (KeySpan) to manipulate energy prices in the New York City electric generating capacity market (see Memorandum & Order , U.S. v. Morgan Stanley, Case No. 1:11-cv-06875 (S.D.N.Y., Aug 7, 2012)). As explained in previous blog entries in February 2010 and February 2011 , a financial swap agreement...

FERC Decides to Retain Existing Merger Review Policies

February 24, 2012

On February 16, 2012, FERC issued an order ( February 16 Order ) reaffirming its existing merger review policies under Section 203 of the Federal Power Act (FPA) and its current framework for analyzing requests for market-based rate authority under section 205 of the FPA. In March of last year, FERC had sought comment in a Notice of Inquiry (NOI) on whether it should amend its existing policies in these two areas in light of new Horizontal Merger Guidelines (2010 HMG) issued jointly by the Federal Trade Commission (FTC) and Department of Justice (DOJ) on August 19, 2010. The NOI explained...

Here We Go Again: Another Attempt at Recovery for Ratepayers Resulting from KeySpan-Morgan Stanley Swap

January 12, 2012

Another class action lawsuit has been filed against KeySpan Corporation (KeySpan) and Morgan Stanley Capital Group Inc. (Morgan Stanley), claiming damages for antitrust violations resulting from an allegedly illegal swap agreement that allowed KeySpan to manipulate energy prices in the New York City electric generating capacity market (NYC Capacity Market), see Konefsky et al. v. KeySpan Corp., et al ., Case No. 1:12-cv-00017. The complaint was filed on January 6, 2012 in the U.S. District Court for the Western District of New York on behalf of electric customers of National Grid, which...

Mass Legislators Revive Fight over Participation in Northeast Emissions Reduction Plan

March 20, 2006

Balking at Governor Mitt Romney's opposition, members of the Massachusetts legislature recently introduced a petition for legislation to reduce carbon dioxide emissions in Massachusetts through participation in the Regional Greenhouse Gas Initiative (RGGI) , a regional cap-and-trade program intended to reduce greenhouse gases in the Northeast. However, because of concerns over the program's effect on electricity prices, it is questionable whether the bill can be passed before the state legislative session ends in July 2. A two-thirds majority vote of the legislators would be needed to...

Legislator Questions Value of Post-PUHCA Consolidations to Ratepayers

March 9, 2006

National Grid USA (National Grid) announced its proposed acquisition of Keyspan , the largest distributor of natural gas in the Northeast and New York state's largest electricity generator. At the completion of the merger, National Grid will have a combined 3.4 million natural gas customers and 8 million electric consumers in the New York and New England area. Keyspan will continue to operate in its own name, although it will be a wholly owned subsidiary of National Grid. The companies have targeted to close the transaction by early 2007. This announcement comes on the heels of Exelon's...

Rule Narrows Universe of Qualifying Facilities, Widens Ownership

February 7, 2006

In a final rule issued February 2, FERC largely adopted its earlier proposed rulemaking implementing the Energy Policy Act of 2005's (EPAct 2005) significant scaling back of the 1978 qualifying facility (QF) program of the Public Utility Regulatory Policy Act (PURPA). As reported in an earlier entry, [ Long-Term Transmission Rights Proposed for Organized Markets ] FERC already has adopted a rule implementing EPAct 2005's biggest change to the nearly 30-year-old QF program "” prospectively terminating in organized electricity markets the mandatory purchase or "PURPA Put," which empowered...

Re-Regulation Moves Forward Quietly

February 2, 2006

In the midst of a rushed close to Congress, a morass of media coverage concerning the war in Iraq, exploding lobbying scandals in D.C., and the coming holiday season, on December 14th the House of Representatives quietly passed a bill that may substantially impact energy markets. The legislation, H.R. 4473 , is usually described as legislation to reauthorize the Commodity Future Trading Commission (CFTC) , but in reality it represents much more than an extension of the status quo. H.R. 4473 includes a number of measures that should be controversial. The language of the legislation would...

Illinois Joins States Reducing Mercury Emissions

January 23, 2006

Earlier this month, Illinois Governor Rod Blagojevich (D) announced he would mandate reductions in mercury emissions from the state's 22 coal-fired power plants by 90 percent by June 30, 2009, joining Connecticut, New Jersey, Maryland, Massachusetts, Minnesota, North Carolina and Wisconsin, in calling for mercury reductions stricter than those called for by the U.S. Environmental Protection Agency in its March 10, 2005 Clean Air Mercury Rule . The EPA Rule calls for reductions of 47 percent by 2010 and 79 percent by 2018. Power plants emit approximately 43 percent of mercury emissions in the...

Energy Advisor to Coordinate State Energy Policy in Rhode Island

January 23, 2006

Rhode Island Governor Donald L. Carcieri (R) issued an executive order in mid-January creating the Office of Chief Energy Advisor to the Governor, and named Andrew Dzykewicz, Senior Project Manger at the Rhode Island Economic Development Corporation (RIEDC) , to fill this new role. Mr. Dzykewicz will be responsible for coordinating tiny Rhode Island's energy policy, and one of the first tasks assigned to the new Advisor is to oversee the enactment of a five-point energy agenda intended to assist in accessing affordable energy supplies and increasing energy conservation. The Governor's five-...

FERC to Mirant: Keep Power Flowing to Nation's Capital

January 19, 2006

Finding that a power-supply emergency existed in the Washington, DC area, Secretary of Energy Bodman on December 20 issued an emergency order directing Mirant to continue to operate its Potomac River, 482-MW power plant. The plant had stopped operations to avoid violating its air quality permit. Secretary Bodman explained that, absent the Potomac River plant, should either of Potomac Electric Power Company's (Pepco) 230-kV lines become unavailable, power supply to the Capital would be in jeopardy. Following the Secretary, in a January 9 order FERC ordered PJM Interconnection L.L.C. (PJM) and...

Mass. Governor Announces New Carbon Dioxide Emissions Reduction Plan

December 22, 2005

After pulling out of the Regional Greenhouse Gas Initiative (RGGI) earlier this month, Massachusetts Gov. Mitt Romney (R) announced that the Bay State would pursue its own new carbon dioxide emissions (CO2) reduction plan. The reductions go into effect January 1, 2006, but power generators will not be required to comply until 2007. In particular, the plan targets Massachusetts' six oldest coal- and oil-fired power plants. It calls for generators to cap emissions at 1997-99 levels, and includes a production limit of 1800 pounds/MWh. The Governor's plan allows generators to meet limits by...

Producers and Pipelines Team Up to Urge Changes in Natural Gas Infrastructure Development

December 12, 2005

Strange bedfellows, the Interstate Natural Gas Association of America ("INGAA") and the Natural Gas Supply Association ("NGSA"), together petitioned FERC to initiate a rulemaking to re-examine the parameters of blanket certificate authority and to make clear to the marketplace that shippers who make projects financially possible may enjoy preferential rates. The petitioners explained that to ensure the adequacy of pipeline infrastructure in the future, FERC must act to make it easier for the industry to build capacity. Specifically, the INGAA and NGSA suggested that FERC permit blanket...

Two Paths to a Future Powered by Integrated Gasification Combined Cycle

December 1, 2005

Both California and Pennsylvania recently put forward energy plans that are likely to speed implementation of highly efficient and low-polluting technologies for generating electricity from gasified coal. The 2005 Integrated Energy Policy that the California Energy Commission ("CEC") adopted at the end of November would indirectly have this effect by requiring the Golden State's utilities to procure power only from generating stations that meet Governor Schwarzenegger's (R) greenhouse gas ("GHG") performance standards, which integrated gasification combined cycle ("IGCC") units can but...

Maryland Governor Proposes Plan to Reduce Plant Emissions

November 30, 2005

Earlier this month, Maryland Governor Erlich (R) proposed the Maryland Clean Power Rule ("MCP Rule"), which would mandate constant emission controls and greatly diminish nitrogen oxide (NOx), sulfur dioxide (SO2) and mercury emissions from Maryland power plants, years ahead of the U.S. Environmental Protection Agency's Clean Air Interstate Rule (CAIR) and Clean Air Mercury Rule. Under the MCP Rule, by 2010, NOx emissions would be reduced by 45,000 tons per year (69%); SO2 emissions would be reduced by 205,000 tons per year (85%); and mercury emissions would be reduced by 1,400 pounds per year...

Rule Would Encourage Transmission Investment & Membership in Transcos & Transmission Organizations

November 28, 2005

In a November 18 notice of rulemaking FERC proposes to implement the incentives mandated in the Domenici-Barton Energy Policy Act of 2005 (EPAct 2005) for investing in electric transmission infrastructure that benefit consumers by increasing grid reliability and reducing the transmission costs caused by congestion. The rulemaking posits that Transcos "” stand-alone companies that sell transmission services at wholesale or otherwise unbundled from retail electricity sales "” are the preferred vehicle through which transmission investments are made and, accordingly proposes additional financial...

With Heightened Enforcement Threatened against Objectionable Natural Gas & Power Transactions, FERC to Offer Industry Guidance in the Form of "˜No-Action Letters'

November 28, 2005

Congress in the Domenici-Barton Energy Policy Act of 2005 (EPAct 2005) and FERC in proposed implementing regulations looked to the Securities Exchange Act of 1934 and its anti-fraud provisions to put in place parallel new prohibitions against and heightened penalties for manipulation and deception in connection with the wholesale natural gas and power transactions that FERC regulates. [See FERC Looks to Past for Future Anti-fraud Enforcement and FERC Explains Its Policy on New Penalty Authority ] Not surprisingly, in a November 18 interpretation of its rules, FERC has looked again to the...

FERC Seeks Comment on Whether to Revise, Repeal Market Behavior Rules

November 28, 2005

FERC asked on November 21 whether it should repeal its Market Behavior Rules in light of its new authority under the Energy Policy Act of 2005 (EPAct 2005) to prevent market manipulation. FERC adopted the Market Behavior Rules approximately two years ago, and required them to be a part of all electric and gas market-based rate tariffs, in an effort to curb market manipulation. The cornerstone is Market Behavior Rule 2, which prohibits "actions or transactions that are without a legitimate business purpose and that are intended to or foreseeably could manipulate market prices, market...

California Voters Reject Return to "Good Ol' Days"

November 15, 2005

California voters affirmed they support competition in the state's energy markets. In the latest election, approximately 65% of voters opposed a ballot initiative that would have banned retail choice, increased state oversight of utilities, and eliminated direct access for those customers not already in the state's program. The Utility Reform Network sponsored Proposition 80 , arguing that it was needed to replace failed deregulation policies and to prevent market manipulation, price spikes, and rolling blackouts in the future. Had it been accepted, the initiative would have allowed for...

DOE Increases Reporting Requirements in Effort to Increase Response to Natural Gas Supply Needs

October 20, 2005

In an effort to improve the country's ability to respond to future energy-related supply problems and to keep the general public informed on the current state of natural gas trading, the Department of Energy's Office of Fossil Energy ("OFE") has added a new monthly reporting requirement to existing and future Orders authorizing the import and export of natural gas and liquefied natural gas ("LNG"). The first monthly report, for the reporting period November 1, 2005, through November 30, 2005, must be filed no later than December 30, 2005, and can be filed electronically through OFE's website...

Updates to FERC's Merger and Acquisition Rules in the Works

October 11, 2005

In one of its latest move to implement the EPAct of 2005 , FERC, on October 3, 2005, issued a notice of proposed rulemaking (NOPR) that proposes amendments to its merger policy regulations, in accordance with the EPAct amendments to section 203 of the Federal Power Act. To be considered by the agency, public comments on the NOPR are due November 7, 2005. Section 203 is the provision that requires FERC's authorization for certain mergers, acquisitions, and dispositions of jurisdictional assets. Currently, FERC focuses on three major factors when analyzing whether a proposed transaction is...

Pennsylvania Lacks Competition in Retail Natural Gas Supply Market

October 11, 2005

In a recent report released to the Governor and to the state General Assembly, the Pennsylvania Public Utility Commission ("PAPUC") concluded that competition in the Pennsylvania retail natural gas supply market simply does not exist. This, of course, is not good news for ratepayers who are watching prices skyrocket due to increased demand worldwide as well as the effects of recent hurricanes on transportation and distribution lines in the South. As a result of its findings, the PAPUC has determined that it will convene natural gas industry stakeholders to examine ways to increase competition...

Wyoming Finances Power Line Project to Improve Transmission and Reliability

October 11, 2005

Using bonds issued through the state's mineral trust fund, the Wyoming Infrastructure Authority ("WIA") recently financed its first power line project, the Basin Electric Power Cooperative's 130-mile $50 million 230-kilovolt transmission line to be located in northeastern Wyoming. The Basin Electric project "” the first step in WIA's forecasted 500 miles of needed transmission "” is expected to deliver power within the state and facilitate exports to neighboring California, Colorado and Utah. The circuit on the Basin Electric project is anticipated close by the end of 2008. The WIA's charter...

AES Corp.'s Proposed Boston Harbor LNG Project Meets with Tentative Approval

October 9, 2005

After rejecting two similar projects in or near their state, Rhode Island officials made clear in recent weeks that AES Corp.'s latest proposal to build a new liquefied natural gas ("LNG") facility on an island in Boston Harbor met with their approval. Reportedly, AES Corp. is considering leasing Outer Brewster Island, a state-owned island eight miles from the Boston shoreline, in the hopes of building a new LNG facility there. Rhode Island's support of an Outer Brewster Island facility stands in sharp contrast to its vehement opposition to two other projects in the area, the Weavers Cove...

FERC Pursues Unique Remedies for MidAmerican's Open-Access Transgressions

October 4, 2005

Not only did FERC affirm its staff's findings that in recent years MidAmerican Energy Co. persistently had violated core provisions of its open-access transmission tariff, but in a September 29 order FERC pursued unique remedies against MidAmerican "• remedies that underscore the premium that FERC places on improvements to the transmission grid. The violations were documented in an audit, from January 1, 2002, through April 30, 2004, of MidAmerican's compliance with its open-access transmission tariff provisions relating to interconnection and transmission services, Standards of Conduct,...

FERC Staff Clears Powerex of Alleged Manipulative Bidding

October 4, 2005

FERC took the unusual step on September 26 of releasing publicly a staff report on a confidential investigation of bidding behavior by importers at the interties into the California Independent System Operator ("CAISO") control area. The report cleared Powerex, the power marketing affiliate of BC Hydro, of any wrongdoing and found that the problems with bidding at the CAISO's interties were a product of the CAISO's tariff and not any impropriety. In releasing the Staff report, FERC said it hoped to clear up confusion regarding its Market Behavior Rule 2, which prohibits market manipulation,...

AWEA and NERC Settle Reliability Dispute

October 3, 2005

The American Wind Energy Association ("AWEA") and the North American Electric Reliability Council ("NERC") asked FERC to accept their settlement on technical standards regarding wind generator interconnections, avoiding the public battle over reliability that was threatened when NERC complained that standards FERC previously proposed posed an "unacceptable risk to the reliability of the bulk electric system." In response to a 2004 petition for rulemaking from AWEA, FERC had adopted a rule allowing asynchronous generators such as wind plants to disconnect from the grid when voltage at the...

Attitude Shift, EPACT Mandate, Prompt FERC to Act on Transmission Policy

September 29, 2005

Last week FERC Chair Joe Kelliher announced that his agency will soon explore ways to induce transmission investment. The Domenici-Barton Energy Policy Act of 2005 ("EPAct 2005") directs FERC to issue a rule establishing transmission incentive rates within one year of EPAct 2005's August 8 enactment. The investment initiative will proceed "in tandem" with FERC's just-announced proposal to update its Order No. 888 open-access transmission tariff. [ See FERC to Reprise Open Access Nearly Ten Years after Its Launch ]. It would be the latest iteration of an evolving approach to FERC's...

FERC Rejects SPP's Imbalance Market Proposal; Start Delayed Again

September 29, 2005

In a September 19 order FERC rejected as "inadequate" Southwest Power Pool's ("SPP") proposal to implement a real-time energy imbalance market, along with its market monitoring and market power mitigation plans. FERC was primarily concerned that the imbalance market was not designed or would not be monitored properly to ensure stable market operation and laid out guidance for SPP in several critical areas. FERC also rejected SPP's attempts to justify various tariff revisions as the result of its stakeholder process, saying that "SPP is ultimately responsible for the stable operation of its...

Entergy to Forego Reactive Power Earnings and Payments

September 29, 2005

In early September, Entergy asked FERC to confirm that if Entergy stops pay ing itself for reactive power, then the New Orleans-based utility can refuse to pay non-affiliated generators for reactive power. A generator is obligated to maintain reactive power within a specified bandwidth as a condition of its interconnecting with the transmission provider's system, and is not owed any compensation so long as Entergy does not pay itself or its affiliates for providing the same service. Unanswered is why Entergy until now has paid itself and its affiliates for reactive power. Apparently expecting...

FERC Asks Commenters, Congress for Help in Closing the Jurisdictional Gap over Natural Gas Gathering

September 29, 2005

FERC recently issued a notice of inquiry asking for ideas on how to close the existing regulatory loophole that allows offshore natural gas gatherers to escape regulation. Under current law, these gatherers fall outside of FERC's jurisdiction once they are spun off from interstate pipelines, as many were during 1990s. Nor are these spun-off gatherers subject to state regulation. Over the past few years, FERC has invoked various legal theories and statutes, including provisions of the Natural Gas Act and the Outer Continental Shelf Lands Act, to impose regulated rates on gatherers. But the...

Northeast LNG Projects Navigate between Scylla and Charybdis

September 5, 2005

Both the Weaver's Cove Fall River, Massachusetts project and the now-three LNG projects proposed for Maine's Passamaquoddy Bay continue to battle local and regional opposition. Recently, the Aquidneck Island Planning Commission took delivery of two commissioned reports that predicted that the Weaver's Cove LNG project would cause major traffic backups and hurt Rhode Island's marine and tourism economies. Weaver's Cove has stated that the reports were based on flawed assumptions. Weaver's Cove earlier this month also saw Mass. Governor Mitch Romney notify FERC of changed conditions surrounding...

Rhode Island, Wisconsin Investigate Benefits of RPS

August 29, 2005

Joining the growing number of states embracing Renewable Portfolio Standards ("RPS"), both Rhode Island and Wisconsin have begun to assess the potential benefits of and need for renewables to power their states. The Rhode Island Public Utilities Commission is reviewing a stakeholder group proposal that recommends the state begin enforcing an RPS in 2007 requiring both utilities and retail marketers to obtain 3% of their power supply from renewables. Under this proposal, utilities would be allowed rate recovery of all associated costs other than non-compliance penalties. Renewable power...

Reconsider Exelon-PSEG Merger, NJBPU Urges FERC

August 24, 2005

Apprehension over the effect of the Exelon-PSEG merger continues, as the New Jersey Board of Public Utilities ("NJBPU"), along with several other regional interests, including New Jersey's Ratepayer Advocate and Pennsylvania's Office of the Consumer Advocate, asked FERC to rehear its July 1 order approving the merger and instead set the merger for hearing. The NJBPU argues in its request that FERC violated Section 203 of the Federal Power Act ("FPA") by failing to determine affirmatively that the merger is in the public interest in advance of authorizing the transaction. Instead, complained...

Xcel Joins Industry Retreat from Market to Cost-Based Pricing of Wholesales

August 17, 2005

Xcel Energy Services recently became the latest integrated utility to abandon efforts to convince FERC that it lacks generation market power in its control area and thereby surrender its authorization to make control-area power wholesales at market rather than cost-based prices. Entergy made the same decision in July, as did AEP earlier this year. (See Entergy Will Not Renew Market-Based Rate Authority, August 2, 2005). Motivating this retreat is recognition that these large regional utilities are unlikely ever to convince regulators that they have adequately mitigated their generation market...

Court Vacates Erratic FERC Orders on Congestion Pricing

August 17, 2005

A federal appeals court recently reversed a FERC order on pricing arrangements in a congested area of ISO-NE region because of the agency's failure to respond to reasonable objections to its mercurial policies on pricing. The opinion demonstrates that the agency's abrupt policy changes will not withstand appellate scrutiny where FERC fails to resolve reasonable objections by appellants. FERC's order concerned the ongoing attempts to devise an appropriate mechanism for compensating generators in a congested area of southwest Connecticut in which there is a risk of generator market power. As...

California Supreme Court Puts Re-Regulation Proposition Back on the Ballot

August 16, 2005

Controversial Proposition 80 , which seeks to re-regulate California's electricity market, should be put to a vote in the upcoming November 8 elections, according to the Golden State's highest court. The court's decision overturns a July 22 ruling of a lower court that would have kept Proposition 80 off of the ballot. The lower court ruled that Proposition 80 was unconstitutional on its face because it would expand the authority of the California Public Utilities Commission ("CPUC") to regulate the energy industry, a role that the court found to be reserved for the California Legislature...

Texas Ups Renewable Energy Requirements

August 12, 2005

Texas Governor Rick Perry has signed legislation requiring increased development of renewable energy in Texas. The legislation requires the installation of another 3,000 MW of renewable energy on top of current Texas law requirements. Texas has taken a different approach in mandating renewable energy development compared to other states. Most states with renewable energy portfolio legislation require load-servers to include a given percentage of renewable energy in the energy they provide to retail consumers. Texas, however, mandates the construction of certain amounts of renewable energy. As...

FERC Asks for Comments on the Roles of RTOs and ISOs in Establishing Reference Prices for Mitigation

May 8, 2005

On April 1, 2005, FERC invited comments on the roles of Regional Transmission Organizations ("RTO"), Independent System Operators ("ISO"), or their market monitors in establishing reference prices to be used to lower or "mitigate" wholesale power prices deemed to be non-competitive. Public comments were due to FERC by May 2, 2005. Several RTOs and ISOs "• including the New York ISO, ISO-New England, California ISO, and the Midwest ISO "• use "conduct and impact" tests in their wholesale day-ahead and real-time electricity markets to determine whether to apply mitigation to assure just and...

U.S. District Court Finds Filed Rate Doctrine also Applies to Market-Based Rates in Natural Gas Markets

May 8, 2005

On April 8, 2005, the U.S. District Court for the District of Nevada found that the filed rate doctrine prohibited federal and state antitrust and unfair competition claims against sellers of natural gas. In In Re W. States Wholesale Natural Gas Antitrust Litig., the Court affirmed FERC's exclusive authority to determine the reasonableness of wholesale natural gas prices under the Natural Gas Act, even in the context of a price-deregulated natural gas market. The court's decision joins other recent legal decisions protecting the price expectations of market-based sellers of both natural gas...

FERC Seeks to Rectify Imbalance in OATT with New Rule Giving Lift to Wind

May 8, 2005

To integrate wind and other intermittent resources energy more completely into wholesale power markets, FERC has proposed a new rule that would relax the imbalance penalties that generators pay under the pro forma open-access transmission tariff ("OATT"). The proposed new generator imbalance service schedule is intended to address the unique characteristics and constraints of intermittent resources such as wind, solar and run-of-river hydro facilities that rely on the weather, and therefore have a limited ability to predict or control their output. Comments on the proposed imbalance rule are...

FERC Audits Two Market-Based Rate Sellers "“ Reaction to Ninth Circuit Lockyer Decision Concerning Reporting Requirements for Market-Based Rate Sellers?

May 8, 2005

FERC announced in April that it would begin auditing power sellers with market-pricing authority for compliance with demanding quarterly reporting requirements. The audits plainly come in response to the dubious court decision in Lockyer v. FERC and signal to all market-price sellers the need to heighten their attention to accurate quarterly reporting both in the past and going forward. Last September, the Ninth Circuit US Court of Appeals ruled that wholesale power sales under a market-based tariff, if not individually detailed in quarterly filings with FERC, were "pragmatically" sales with...

Mexican High Court Rejects Congressional Auditors' Challenge to Private Generation and Sales of Power

May 8, 2005

Private power south of the border narrowly escaped in April a congressional audit committee invalidating as unconstitutional their generation and sale of power to the national electricity monopoly, the Comisión Federal de Electricidad ("CFE"). At the request of Mexican President Vicente Fox, the Mexican Supreme Court by a 6-to-5 vote ruled that the audit committee of the opposition-dominated Congress did not have authority to rule on the constitutionality of the power purchase contracts between CFE and private generators. Had the high court affirmed the audit committee and ruled against...

U.S. Supreme Court Will Not Review Decision Prohibiting Courts from Ruling on Wholesale Power Prices

May 8, 2005

Fallout from the 2000-2001 western energy crisis persisted in April. In a case involving one of the relatively smaller claims to arise out of the crisis, on April 18, 2005, the US Supreme Court denied the petition of the State of California for review of a lower court ruling that only FERC can decide whether the state was unlawfully double-billed for wholesale power. In a claim filed in state court in 2002, California alleged that certain generators violated the state's unfair business competition laws by double-billing the California Independent System Operator ("CAISO") over $100 million...

Benefits of ISOs and RTOs "“ ISO-NE Results Show Lower Prices, Increased Investment and Improved Efficiency, Reliability and Environmental Action

May 8, 2005

In its recently published "Progress of New England's Restructured Electric Industry and Competitive Markets: The Benefits of ISOs and RTOs," ISO-New England ("ISO-NE") lauds the long-term performance of its power market. Since the market's inception in 1999, New England wholesale electricity prices have declined by 5.7 percent, after adjustments for fuel costs, and the fuel-adjusted price decline experienced from 2001-2004 was 11 percent. Also during this time, ISO-NE estimates that more than $9 billion was invested in new power plants, and up to $4 billion was invested in transmission...

Kansas Creates Electric Transmission Authority to Ensure that the Lights Stay on in the Sunflower State

May 8, 2005

Early in April, the Sunflower State followed Wyoming's lead in the creation of a state electricity infrastructure authority by passing the Kansas Electric Transmission Authority Act ("Act") and creating the Kansas Electric Transmission Authority ("Authority"). According to the Act, the Authority is responsible for ensuring the reliable operation of the state's integrated electrical transmission system and facilitating the consumption of the state's energy through improvements in Kansas ' electric infrastructure. The Act permits the Authority to accept federal agency grants for operation, and...

New England Set to Implement Day-Ahead Demand-Response Market Beginning June 1

May 8, 2005

The New England Power Pool and the ISO New England finally won FERC approval in April to expand their demand-response bidding beyond real-time to the day-ahead market ¾ the Day-Ahead Load-Response Program or DALRP. This approval joins other recent regulatory recognitions that conservation can often prove the least-cost answer to perceived supply shortages. When the new program goes into effect June 1, a firm-demand New England customer can elect to become a demand resource by registering in one of ISO-NE's load-response programs and then be able to offer demand reduction in the day-ahead...

California Assembly Again Considers Retail Choice for Large Customers

May 8, 2005

The California State Assembly is considering the possibility of returning retail choice to the state, after its suspension during the 2000-2001 energy crisis. Assembly Bill 1704 ("AB 1704"), introduced by Assemblyman Keith Richman (R-Granada Hills), would establish a core/non-core retail market in California. Under the proposal, utility customers who use more than 200 KW ("non-core" customers) could choose either to take service from direct-access providers or remain with their investor-owned utility, while individual and small commercial customers would continue receiving service from the...