Power supply definition

On November 28, 2016, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (together, the “Agencies”) submitted comments on the Federal Energy Regulatory Commission’s (the “Commission” or “FERC”) September 22, 2016 Notice of Inquiry (“NOI”), which seeks public comment on possible changes to the Commission’s assessment of market power under sections 203 and 205 of the Federal Power Act (“FPA”).1  The Agencies based their comments on their experience assessing market power effects of mergers, particularly in the electricity markets.  FERC’s current approach, they said, overlooks the reality of today’s electricity markets by too narrowly focusing on structural screens (i.e., market share and market concentration).  Instead, the Agencies argued FERC should include a broader inquiry into the ability of market participants with relatively small … [Read more...] about DOJ and FTC Advocate Broader Approach to FERC’s Market Power Evaluation under Sections 203 and 205 of the Federal Power Act

Electric utilities operated by Texas municipalities (Munis) are attractive wholesale customers for power generators, as Munis are willing to enter into the coveted long-term power purchase agreements (PPAs) that enable the financing of new generation capacity.  Because Munis are governmental entities, however, there has been a longstanding question regarding the extent to which “governmental immunity” may restrict a generator’s ability to recover damages when its counterparty to the PPA is a Muni.  Until last month the answer to this question was uncertain, with different districts of the Texas Courts of Appeals reaching different conclusions under remarkably similar facts.[1]  But with a pair of recent opinions the Texas Supreme Court finally resolved this uncertainty: generators and their financing parties and investors can breathe easier knowing that even though Munis are governmental entities, they do not benefit from governmental immunity in … [Read more...] about Selling Power to Texas Muni Just Got Easier (or at least more enforceable)

In 2011, the Department of Justice (“DOJ”) stated that “[i]t’s not necessarily the wisest move for a company” to challenge the definition of “foreign official” under the Foreign Corrupt Practices Act (“FCPA”), and that “[q]uibbling over the percentage ownership or control of a company is not going to be particularly helpful as a defense.”[1] The DOJ’s prophecy rang true in the Eleventh Circuit’s recent decision in U.S. v. Esquenazi, 2014 U.S. App. LEXIS 9096 (11th Cir. 2014).In Esquenazi, the Eleventh Circuit broadly defined “foreign official” under the FCPA to encompass employees of the Haitian telecommunications company Telecommunications D’Haiti, S.A.M. (“Teleco”) despite the fact that the Haitian Prime Minister had authored a declaration asserting that “Teleco has never been and until now is not a state enterprise.”[2] The decision is the first … [Read more...] about DOJ’s Foreign Corrupt Practices Act (FCPA) Enforcement Power Gets A Big Boost

In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.” As the Libyan war reached its 60th day at the end of May … [Read more...] about War Powers Belong to the President

On April 4, 2016, the U.S. Commodity Futures Trading Commission (CFTC) announced that it had unanimously approved proposed guidance regarding the appropriate treatment of certain electric power and natural gas contracts under the definition of the term “swap.”    The Proposed GuidanceThe guidance proposes that certain capacity and peaking supply contracts should not be considered “swaps” under the Commodity Exchange Act (CEA). This proposed guidance, issued jointly with the U.S. Securities and Exchange Commission (SEC) in accordance with the 2010 Dodd-Frank Act, provides some much-needed clarity for utilities and other power producers.  Capacity and peaking supply contracts are commonly used by public utilities and other power producers. Capacity contracts allow load-serving entities and electric utilities to purchase capacity from suppliers to secure grid management and on-demand deliverability of power to consumers, in compliance with federal … [Read more...] about CFTC and SEC Approve Proposed Guidance on Regulatory Treatment of Certain Electric Power and Natural Gas Contracts