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Utility & Energy

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Overview

Stoll Keenon Ogden’s Utility & Energy practice represents the utility and energy industries on a wide range of issues before the state commissions in Indiana, Kentucky, Tennessee and Virginia, the Federal Energy Regulatory Commission and the Federal Communications Commission, local governments and trial and appellate courts.

Our clients include investor-owned vertically integrated gas and electric utilities, natural gas local distribution utilities, water and wastewater utilities, telecommunications carriers, and providers of utility infrastructure. We also represent electric cooperatives, water districts, and industrial purchasers of energy and telecommunications.

Our practice group consists of 12 lawyers who have largely if not entirely devoted their careers to representing clients in the utility and energy industries or fields. The depth and breadth of our bench strength and institutional knowledge is significant. Our scope of services includes representing clients regarding:

  • Rate adjustments, including base rate and rate mechanisms
  • Mergers, acquisitions, corporate reorganizations, and other transfers of control
  • Financing of debt or equity securities
  • Construction or acquisition of utility facilities through certificates of public convenience and necessity
  • Consumer complaint proceedings
  • Show cause and investigative proceedings
  • Acquisition of right-of-way for utility facilities, by franchise, condemnation or eminent domain
  • Energy contracts, including solar power
  • Licensing of new wind and other merchant generating facilities
  • Antitrust and compliance
  • Market entry
  • Inter-carrier relations
  • Legislative affairs

Industry Involvement

Energy Bar Association

Energy and Mineral Law Association

Federal Communications Commission Bar Association

Foundation of Energy Law Journal

Kentucky Bar Association

Louisville Bar Association

Fayette County Bar Association

Virginia State Bar Association

Edison Electric Institute

Work Highlights - Federal

Power Contract Negotiation

  • SKO has negotiated power contracts for large industrial customers with the Tennessee Valley Authority.
  • SKO has negotiated customer-dedicated solar power contracts

FERC Proceedings

SKO represents a large, out-of- state generation and transmission cooperative before the Federal Energy Regulatory Commission in proceedings involving wholesale electric power rates and independent system operators. SKO successfully handled a major litigated rate case before FERC on behalf of a utility purchaser of wholesale distribution service. The case established new ratemaking methodology through an extensive hearing and resulted in substantial refunds and lower purchase rates for our client. Midwest Independent Transmission System Operator, Inc. and Ameren Illinois Company, 148 FERC ¶ 61,206, Opinion 524 (2014)

Work Highlights - Indiana

Electric

  • Municipal Utility Customer and Supplier Disputes

    SKO successfully represented a small municipal electric utility when its largest customer went to court to obtain more favorable terms of service. This same utility also relied on SKO counsel to advise it through the termination of its long-term power purchase contract and transition to a consortium of municipal utilities purchasing power through a pool.

  • Demand-Side Management and Energy-Efficiency

    SKO represented the vendor hired by electric utilities as directed by the Indiana Commission to implement statewide demand-side management and energy-efficiency programs.

  • Construction of Wind-Powered and Gas-Powered Merchant Generating Facilities

    SKO represented the developer of the first commercial wind farm in the State of Indiana to obtain the requisite approvals from the Indiana Commission and local governmental entities. SKO also worked with an out-of-state developer of a merchant gas-powered electric generating facility to obtain the requisite approvals from the Indiana Commission and local governmental entities.

  • General Rate Cases

    SKO served as sole counsel representing two local gas distribution companies in their applications to the Indiana Commission for authorization to increase their regulated retail rates in 2007, 2012, 2016 and 2017.

  • Gas Supply Matters

    SKO represented a local gas distribution company in responding to a complaint filed at the Indiana Commission by a native gas producer who sought to force a connection and gas purchase contract on the gas utility on more favorable terms. The commission determined that the producer was required to pay the full cost of the connection to the utility and that the utility was not required to pay more than the spot market price for the gas.

  • Special Contracts and Service Area Issues

    SKO has represented local gas distribution companies in obtaining regulatory approval for special contracts with large customers and also in defending and expanding their territorial boundaries.

Municipally Owned Water and Wastewater Utilities

  • General rate cases

    SKO has represented a large municipal water utility in obtaining from the Indiana Commission authority to implement a multi-phased general rate increase and associated approval for debt financing.

  • Service Territory Expansion and Protection

    SKO has represented a small municipal water utility in securing expanded territorial rights and also represented a different municipality's wastewater utility in defending its rights to extend service outside its municipal boundaries.

Telecom

  • Regulated & Unregulated Voice and Video Services

    SKO has represented competitive providers of regulated and unregulated voice services, including wireline and wireless carriers, in Indiana for more than 15 years. Our clients also include one of the largest national providers of video services as well as the Indiana Cable Telecommunications Association and the Indiana Statewide 911 Board. SKO has assisted clients in obtaining Eligible Telecommunications Carrier status as well as territorial licenses and direct marketing authority from the Indiana Commission.

Work Highlights - Kentucky

Electric

  • General Rate Cases

    In recent years, SKO has served as lead counsel for 12 base rate cases for Kentucky’s largest investor-owned gas, electric, and energy provider.

  • Construction of Emission Control Technology and Cost Recovery through Rate Mechanisms

    SKO handled, on behalf of a major energy services provider, applications with the Kentucky Commission seeking certificates of public convenience and necessity for the construction of new emission control technology and the modification of an existing ash pond. The provider also sought approval to recover $2.5 billion in costs of new pollution control facilities through its environmental surcharge tariff. The Commission approved a unanimous settlement agreement in the environmental cost recovery cases for the provider, clearing the way for the investment of $2.3 billion in environmental upgrades to meet new, stricter Environmental Protection Agency regulations and recover the costs through environmental surcharge rate mechanisms.

    SKO successfully represented a major energy services provider before the Kentucky Public Service Commission in obtaining approval of $994 million in compliance plans mainly for the capping and closure of the utilities’ surface impoundments and ash storage facilities associated with coal-fired generation plants.

  • Demand-Side Management and Energy-Efficiency

    SKO worked with a gas, electric, and energy provider before the Kentucky Commission to obtain approval for the most robust portfolio of demand-side management and energy-efficiency programs in Kentucky. In 2014, SKO worked with the provider for approval of a portfolio of such programs projected to produce significant demand and energy savings at a cost of nearly $180 million from 2015 through 2018.

  • Fuel Adjustment Clause Mechanisms

    SKO has extensive experience with the operation of fuel adjustment clause mechanisms and prudency of fuel contract issues.

  • Construction of Generating Facilities

    SKO worked with a major energy provider before the Kentucky Commission to obtain approval for the construction of a 640-megawatt combined-cycle natural gas-fired generating facility at one of the provider’s plants, which had an estimated cost of $583 million.

    SKO also worked with an energy provider before the Kentucky Commission to obtain approval of the construction of one of the state’s first utility-owned solar-powered electric generating facilities.

    SKO has represented electric, gas and water investor-owned utilities before the Kentucky Commission to obtain the authority to issue securities and a variety of debt for more than 40 years.

  • Change of Control

    SKO provided general legal strategic advice and served as lead regulatory counsel for obtaining all state regulatory approvals in connection with a series of four mergers or acquisitions involving the two largest investor-owned electric and gas utilities in Kentucky, beginning with the 1997-98 acquisition of KU Energy Corporation resulting in a combined company with consolidated assets of $4.8 billion, the $3.3 billion acquisition in 2000, the $14 billion acquisition in 2001 and the $7.6 billion acquisition in 2010.

Gas

  • General Rate Cases

    SKO served as sole counsel representing a local distribution company in an application with the Kentucky Commission on April 20, 2007 seeking an increase in gas revenues of $5,641,650, an increase of 9.25 percent. On October 19, 2007, the KPSC approved a negotiated settlement, authorizing a rate increase totaling $3,920,000.

    SKO served as sole counsel representing a local distribution company in an application with the Kentucky Commission on March 16, 2010 requesting authority to adjust its base rates for gas service. On October 21, 2010, the KPSC approved a rate increase totaling $3.5 million.

  • Investigation of Operations

    SKO defended a significant investor-owned local distribution company in the Kentucky Commission’s formal investigation of alleged safety violations that were uncovered during the agency’s field investigation of a natural gas explosion that destroyed a house.

    Although the maximum possible fine was $500,000, SKO negotiated a settlement with the agency that was subsequently approved by the Commission. The settlement included the payment of a $125,000 fine and another $125,000 in penalties suspended pending completion of certain remedial actions specified in the settlement agreement.

    SKO also defended a significant investor-owned local distribution company in the Kentucky Commission’s formal investigation of alleged safety violations related to the separation of a high pressure natural gas transmission main.

  • Change of Control

    In 2017 SKO served as lead regulatory counsel in obtaining state regulatory approval regarding the acquisition of a regulated gas utility and three non-regulated affiliates in Kentucky. The value of the transaction was $217.5 million.

Water and Wastewater Investor-Owned Utility

  • Certificates of Public Convenience and Necessity

    In recent years, SKO has served as lead counsel in obtaining three CPCNs for significant construction projects proposed by the state’s largest investor-owned water utility.

  • First, SKO helped obtain a CPCN to build a new water treatment plant on the Kentucky River. Numerous parties intervened in the case, with the opposition coming mainly from a group of citizens impacted by the construction. The Kentucky Commission granted the requested CPCN. That decision was appealed all the way to the Kentucky Supreme Court, but SKO’s client prevailed at every step in the appellate process.

    Second, SKO recently obtained a CPCN for the construction of a significant water transmission line that will transport treated water from the plant on the Kentucky River to the client’s customers.

    Third, SKO recently obtained a CPCN for the construction of a new filtration facility for the client’s largest water treatment plant.

  • General Rate Cases

    In recent years, SKO has served as lead counsel for several general rate cases for the state’s largest investor-owned water utility. In 2010, SKO led the legal effort for a base rate case that was fully litigated by numerous intervenors and decided by the Kentucky Public Service Commission. In 2013 and again in 2015, SKO served as legal counsel for the same water utility in separate base rate case. SKO has also represented utilities before the Kentucky Commission in base rate cases seeking an increase in base wastewater rates.

    SKO provided general legal strategic advice and served as lead regulatory counsel for obtaining all state regulatory approvals in connection two separate changes of control of Kentucky’s largest investor-owned water utility.

    SKO served as the national counsel in managing the extensive and voluminous discovery process in multiple states in connection with the change of control of the nation’s largest investor-owned water utility. That change of control resulted in the utility becoming publicly traded on the New York Stock Exchange.

Water Districts/Municipally Owned Water Utilities

  • Certificates of Public Convenience and Necessity

    SKO has recently represented water districts in obtaining regulatory approval of several major construction projects. It assisted a large water district in obtaining a certificate of public convenience and necessity to construct a $16.6 million wastewater infrastructure project to extend wastewater service to a 1,550 acre industrial mega-site and to previously un-served residential areas.

    SKO has represented a rural water district in obtaining a certificate of public convenience and necessity to construct a facilities totaling $15.9 million, including a two million gallon water treatment plant and related storage and transmission facilities.

    SKO has also obtained regulatory approval for smaller projects such a water storage tanks and water transmission main expansions.

  • Funding

    SKO attorneys recently worked with the members of Kentucky’s congressional delegation to obtain passage of legislation directing the Secretary of the Army to transfer ownership of a lock and dam on the Green River to a regional water commission.

  • Regionalization, Mergers, and Consolidation

    SKO attorneys have been significantly involved in the creation of several regional water commissions in which water districts, water associations, and municipally owned water utilities have created jointly owned and operated water supply sources as well as the merger of water districts and the mergers of water districts and municipally-owned water utilities.

  • Water Supply Agreements

    SKO attorneys have been significantly involved in the negotiation and drafting of long-term water supply agreements between municipal utilities and water districts and then obtained regulatory approval from the Kentucky Commission.

  • Alternative Rate Filings/Regulatory Filings with Public Service Commission

    SKO attorneys have frequently assisted small water districts and water associations in the preparation of simplified rate applications and assisted the water utility in guiding the application through the Kentucky Commission.

  • Mediation Services

    SKO attorneys have mediated several territorial boundary disputes between adjoining water utilities as well as wholesale water increases.

Telecom

  • Regulated & Unregulated Voice Services Cases

    SKO’s emphasis is representing competitive providers of regulated and unregulated voice services, including wireline and wireless carriers. SKO has represented various national interexchange carriers in rate and service disputes with local exchange carriers. Most recently, SKO has represented a national provider of wireless and long distance services in the federal and state courts in a complex intercarrier dispute related to termination of wireless services traffic to a local phone company. SKO also represented numerous wireless service providers in obtaining approval to participate in the federal and state programs implementing the Universal Service Fund's Lifeline program, and has represented a coalition of providers in an ongoing investigation of the Kentucky Universal Service Fund. In 2017 SKO represented an international telecommunications carrier and successfully obtained a permanent, industry-wide waiver of certification requirements related to municipal communications services franchises.

  • Other Telecom Cases

    SKO has represented two national wireless providers in separate litigation related to the scope of Kentucky’s wireless 911 funding statute. SKO represented a class of customers and obtained summary judgment in a federal class action involving overcharges by a federally-regulated provider of telecommunications services. SKO also successfully defended against an interlocutory appeal of a favorable class certification decision, winning a decision from the U.S. Court of Appeals for the Sixth Circuit. SKO has also represented cable television providers in franchise matters related to industry mergers. SKO has also represented wireless infrastructure providers on franchise and real estate matters.

Work Highlights - Tennessee

  • Rate Cases

    SKO served as lead counsel for one of the state’s largest investor-owned water utilities in a general rate case. The rate case was filed with the Tennessee in early 2012. Multiple parties intervened in the case. Ultimately, a proposed settlement was reached among the parties and was approved. SKO has also served as counsel in base rate case proceedings for an investor-owned electric utility.

  • Change of Control

    SKO represented an investor-owned electric utility in obtaining the Tennessee Commission’s approval of its change of control and ownership in two separate transactions.

Work Highlights - Virginia

  • General Rate and Fuel Factor Cases

    In recent years, SKO has served as lead counsel for four general base rate cases and numerous fuel factor cases for the state’s third largest investor-owned electric utility. In 2015, SKO led the legal effort for a base rate case that was resolved through a settlement with the agency’s staff and subsequently approved by the Virginia Commission. In 2017, SKO is serving as lead counsel in a general rate case for the same electric utility client.

  • Change of Control

    SKO represented the state’s third largest investor-owned electric utility in obtaining the Virginia Commission’s approval of its change of control and ownership in three separate transactions.

  • Affiliate Transactions

    SKO represented the state’s third largest investor-owned electric utility in obtaining the Virginia State Corporation Commission’s approval of a series of affiliate transactions.

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