Study Group: FERC Electric Utilities Experts: Lawyers

GLG News^SM Analyses by this Study Group's Leading Experts(?)

FERC's Standards of Conduct NOPR: Back to the Future?

April 3, 2008

Analysis by:Paul Forshay, Partner,

Analysis of:FERC Standards of Conduct Notice of Proposed Rulemaking | www.ferc.gov

The Federal Energy Regulatory Commission's recently issued Notice of Proposed Rulemaking on the Standards of Conduct applicable to natural gas and electric transmission providers would establish revised standards for preventing anti-competitive information sharing between those trasmission providers and their marketing affiliates. FERC’s rulemaking bluntly acknowledges that the standards of conduct adopted with much fanfare in Order No. 2004 have proven too difficult for both industry and regulators to interpret and enforce, and seeks a return to the "functional separation" regulatory approach that prevailed prior to Order No. 2004.

Surface Transportation Board Proposes Revising Railroad Cost of Capital Methodology

August 16, 2007

Analysis by:Robert Rosenberg, Partner,

Analysis of:STB Notice of Proposed Rulemaking on Railroad Cost of Capital Methodology | www.stb.dot.gov

The Surface Transportation Board has proposed to change its methodology for calculating the railroad industry cost of capital.  The cost of capital is used for several regulatory purposes.  Lowering the cost of capital, as proposed by the agency, could increase the rate relief available to captive shippers.

“Affirmative Benefits” and the Public Interest: A Higher Hurdle for Utility Mergers?

March 19, 2007

Analysis by:Paul Forshay, Partner,

Analysis of:PUC ordered to reconsider Verizon, MCI merger issue | www.pennlive.com

Pennsylvania Commonwealth Court's decision in Popowsky underscores the importance of rate-related benefits in demonstrating that a proposed merger affords sufficient "affirmative benefits" to satisfy the statutory "public interest" standard.

Popowsky indicates that promises of continued "good corporate citizenship" and locally-based management, without more, are not sufficient to satisfy the "affirmative benefits" test.

Popowsky suggests that merger applicants will not be able to rely on federal-level approvals to avoid a state-level inquiry into a proposed merger's potential anti-competitive effects.

FERC’s Standards of Conduct: Back to the Drawing Board

December 1, 2006

Analysis by:Paul Forshay, Partner,

Analysis of:National Fuel unit settles with FERC | washington.bizjournals.com

-- D.C. Circuit decision in National Fuel Gas Supply Corp. v. FERC vacates and remands Order No. 2004 as applied to natural gas pipelines.

-- The Commission's theoretical concerns with potential anti-competitive conduct, without actual evidence of such conduct, were insufficient to justify imposing Standards of Conduct on pipelines and their non-marketing affiliates.

-- The Commission may attempt to satisfy the Court's concerns on remand and repromulgate Order No. 2004. In the meantime, it is unclear what Standards of Conduct, if any, apply to natural gas pipelines and their affiliates.

FERC Opens Door to Changes in Cost of Equity Model

October 27, 2006

Analysis by:Paul Forshay, Partner,

Analysis of:Opinion 486 and Order on Initial Decision re Kern River Gas Transmission Co with Commissioner Sptizer's concurring statement attached under RP04-274 | elibrary.ferc.gov

FERC's Kern River decision opens the door to future changes in the Commission's traditional DCF model for setting pipeline equity returns.

FERC indicates a willingness to consider future DCF proxy groups that include properly adjusted MLP distributions.

FERC also indicates a willingness to consider DCF proxy groups that include energy companies with substantial monopoly utility revenues.

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