District of Columbia Public Service Commissioner Lori Murphy Lee

EBA Update
Fall 2012
President’s Message
District of Columbia Public Service
Commissioner Lori Murphy Lee
Tells of Her Commitment to the
Energy
Her Leadership Activities within
NARUC, MACRUC, and OPSI, and
Her Participation in EBA/CFEBA,
Give Her a Wide Perspective
Gary E. Guy and Channing D. Strother
In late September, the EBA Board of
Directors and the entire EBA Staff met for two
days to engage in a professionally facilitated
strategic planning session. During our two days
together, we examined our legal environment
from two perspectives: as members of the legal
profession and as participants in the energy
industry. We examined EBA’s core purpose
(“why we exist”) and the Association’s core
values (“our character”). We envisioned the
Association’s future and challenged ourselves
to picture big “audacious” goals. And from
there, we began to identify other shorter-term
goals and to construct a 5-year plan. By the
end of the session, we had translated a lot of
creative thinking, idea-sharing, and even a little bit of dreaming, into meaningful achievable
goals, and we emerged with a solid working
draft of a strategic plan.
So what’s next? Those two days in
September were merely the beginning. At its
November meeting, the board will review its
working draft and continue the discussion of
the Association’s strategic goals. We also will
continued on page 9
Travelling to a new venue, the 1300
block of Northwest Washington, D.C.,
which houses the District of Columbia
Public Service Commission, Gary Guy and
Channing Strother (aka “Carl Leubsdorf
and Mike Royko”) were graciously greeted
by The Honorable Lori “Missy” Murphy
Lee, D.C. PSC Commissioner. With an
existing vacancy on the three-member
Commission, we were visiting half of the
Commission. And her term ended just a
week after our late September interview.
Commissioner Lee was nominated by
then-Mayor Adrian Fenty, and her confirmation was confirmed by the D.C. City
Council. She assumed office in March
2009. Commissioner Lee has coordinated
activities with the EBA’s Charitable
Foundation, and attended the last Annual
EBA Meeting and Dinner. We were honored that she agreed to speak with us at the
culmination of her tenure on the Public
Service Commission. You can view the
video of our interview at www.eba-net.org.
Native Washingtonian Who
Plans to Stay
A fifth generation Washingtonian,
Commissioner Lee holds a B.A. degree
from Duke University, where she majored
in history, and a J.D. degree from The
George Washington University Law
School. She practiced law at the United
States Department of Justice in the
Executive Office for Immigration Review
for 12 years. In this position, she reviewed
administrative proceedings from over 250
immigration judges from across the country. She also wrote appellate decisions in
these complex matters. Prior to her Justice
Department experience, Ms. Lee reprecontinued on page 10
News from the Charitable Foundation of the Energy
Bar Association
Marcia C. Hooks, Pamela J. Anderson and Katherine C. Zeitlin
CFEBA Will Celebrate its Tenth Anniversary with its
Annual Gala and Silent Auction
CFEBA Interns Reflect on Their Summer Work
Experiences
The CFEBA will host its Tenth Annual Gala and Silent
Auction on Thursday, November 29, 2012 in conjunction with
the EBA Mid-Year Conference at the Ronald Reagan Building &
International Trade Center in Washington, DC. Funds raised at
the Silent Auction will be used for energy-related charitable activities, as well as other community service projects targeting energy
efficiency techniques.
Since its inception in 2002, the CFEBA has awarded more
than $1,000,000 to deserving national and international organizations. EBA members’ participation is necessary to ensure a successful gala. To help in this worthwhile endeavor, members and
their employers may contribute IN SEVERAL WAYS. They may
PROVIDE CASH DONATIONS OR EVEN SPONSOR THE
GALA. THEY MAY ALSO CONTRIBUTE SILENT AUCTION ITEMS. Popular past auction items include: wine and gift
baskets; tickets to sporting events or theater performances; sports
memorabilia; vacation rentals; catered dinners; tours of DC landmarks; gift cards and gift certificates to stores, restaurants, or spas;
autographed anything; lunch/dinner with a famous person you
know.
In addition, the CFEBA is excited about the Gala’s third
annual “Team Competition.” The CFEBA encourages you to form
a "Team," which will donate an item or basket of items to be auctioned. The Team that generates the highest winning bid for its
silent auction entry will receive recognition in the EBA newsletter and bragging rights until next year's silent auction. It’s a
friendly competition between friends, law firms, and companies,
and you have the added satisfaction of knowing that proceeds
from your donation will be used to assist worthy organizations’
energy-related activities. The FELJ Board won the Team
Competition last year with a winning bid of $520 for its Silent
Auction item.
Please contact Michele Duehring with any questions or for
more information at (202) 223-5625 or email her at
[email protected]. We encourage you to bring a friend or colleague, AS WELL AS YOUR CHECKBOOK OR CREDIT
CARD, to support the CFEBA’s Tenth Annual Gala!
Colin Beckman, Office of the General Counsel at FERC
My thanks goes out to the
Charitable Foundation of the
Energy Bar Association for supporting my fascinating and
enriching summer with the
Federal Energy Regulatory
Commission. My work in the
Office of the General Counsel
consisted of essentially three
categories.
First, I conducted legal
research and wrote memoranda
that related directly to some of the most urgent issues facing the
Commission. I examined the legislative history of the Energy
Policy Act of 2005, researched the controlling statutes of the
Bonneville Power Administration, and reviewed case law on the
Administrative Procedure Act’s substantial evidence standard.
To give attorneys speedy access to the most salient portions of
Order 1000-A, I created an indexed summary of that revised
order. I also drafted an order approving an uncontested settlement related to a transmission project in the Midwest. Second, I
briefed a Commissioner on three pending orders pertinent to a
hydroelectric license, a market-based rate authorization, and the
certification of a natural gas pipeline compressor station. Third,
I had the opportunity to attend the Asia Pacific Energy
Regulatory Forum, which offered a comparison of the regulatory
approaches of countries like China, New Zealand, India, and
Canada.
This summer exposed me to both diversity and depth in the
energy law field. My next step will be to take a year off from law
school for academic year 2012- 13 to study Hindi and electricity
policy in India on a Boren Fellowship. I will return to Vermont
Law School to finish my third year in Fall 2013. Thereafter I hope
to join the energy law community in Washington, D.C. I felt very
lucky to participate in the Commission’s work this summer.
Thank you to the Charitable Foundation of the Energy Bar
Association for its support and to those at the Commission who
included me in their day-to-day work.
Online Gala Registration
continued on page 3
EBA Update •
Fall 2012 • 2
News from CFEBA Continued
Charles Maiers, Indiana Utility Regulatory Commission
My experience working for the Indiana Utility Regulatory Commission (IURC) was exceptionally fulfilling and educational, and I would like to extend my sincerest gratitude to the
Charitable Foundation of the Energy Bar Association and the Indiana Utility Regulatory
Commission and itd staff for affording me this opportunity. I had the privilege of learning from
and working in the General Counsel’s office where I was able to see firsthand the inner workings
of a state agency and meet and learn from several attorneys who practice in the local energy bar.
My research projects ranged from the ability of utility companies to limit their liability via
their tariffs to precisely how a third-party audit of a utility company is supposed to be conducted.
The most engaging project on which I embarked was affectionately referred to as “the Matrix.”
The Matrix was, in essence, an outline of the standards required for the commission to assent
to each particular type of petition. I was tasked with fully researching the relevant statutes, regulations, and case law to determine what standard a petitioner has to show the commission in
order to have a rate increase approved. This project lasted many weeks, and it is my hope and
understanding that my research will be used in the future as a guide for the General Counsel’s office, administrative law judges, and
commissioners when considering petitions brought before the commission.
In addition to my research projects, I was also able to attend numerous hearings before the IURC. Notably, I attended a rate case
and witnessed, firsthand, the arguments made by each side, as well as those made by the numerous intervenors. Indiana suffered one
of the worst droughts in a century this summer, and I was able to attend a hearing pertaining to a water utility’s problems maintaining
consistent water pressure. It was in this context that I was tasked with outlining the appropriate steps for a third-party audit of the
water utility’s practices.
I was also fortunate to attend the National Conference of Regulatory Attorneys, as it was held in Indianapolis this year. I met commissioners from various public service commissions, as well as the attorneys who practice in the utility field and the technical staffs associated with utilities throughout the nation.
Undoubtedly, the most interesting part of the summer was the full gamut of personalities with whom I was able to work. The
General Counsel of the IURC, Doug Webber, was absolutely benevolent in his willingness to teach and mentor me. The commissioners, particularly Commissioner Ziegner and Chairman Atterholt, were as welcoming as could be and always willing to take time to speak
to the summer intern.
Tara B. Brandner – North Dakota Public Service Commission (NDPSC)
The generosity of the Charitable Foundation of the Energy Bar Association enabled me to work for ten weeks at the North Dakota
Public Service Commission (NDPSC) in Bismarck, ND. I had the unique opportunity to experience first-hand the agency’s regulatory
authority in key sectors of the state’s thriving energy industry
A majority of my research projects related to jurisdictional complexities the agency encounters as it works to regulate the continually expanding and evolving North Dakota energy industry. The project I enjoyed most involved analyzing reclamation policy memorandum for inconsistencies with state and federal laws and rules. To assist with my understanding of reclamation, I worked closely with
members of the Reclamation Division of the North Dakota Public Commission. The Reclamation Division also gave me the opportunity to accompany staff on an active mine inspection and a tour of various reclaimed lands.
In addition to research and writing assignments, the NDPSC legal staff allowed me to observe a number of public hearings and work
sessions. My observations gave me a deeper understanding of the technical aspects of energy regulation in addition to the legal concepts.
Again, I am very grateful to the Charitable Foundation of the Energy Bar Association and the entire staff of the North Dakota Public
Service Commission for the extremely rewarding experience. My experiences will undoubtedly assist me in numerous ways in both my
education and future career.
continued on page 4
EBA Update •
Fall 2012 • 3
News From CFEBA Continued
Michael Jacobson – Illinois Commerce Commission
Thanks to the generosity of the CFEBA, I had a wonderful opportunity to intern for the Office of General Counsel of The Illinois
Commerce Commission (ICC). I worked with both the trial group and the regulatory group, mainly focusing on the legal and technical aspects of the electric utility ratemaking process. I even had the chance to travel to our state capital in Springfield, Illinois to attend
a workshop on utility ratemaking put on by the ICC technical staff. This exposure and insight has given me a greater understanding
of the ratemaking process and I hope I can utilize the knowledge that I have gained at the ICC as I pursue a career as an energy law
attorney.
I was able to take on other research assignments and advise ICC technical staff on enforcement of various provisions of the Illinois
Public Utilities Act, including penalties for violations in natural gas pipeline excavation and demolition. I also completed a large
research project detailing the legal and monetary effects of FERC’s cost allocation policy for electric transmission facilities in Illinois.
Another valuable experience I had at the ICC was being able to participate in the drafting and implementation of rules and regulations for newly passed legislation involving electric vehicle charging stations. I attended several meetings with General Counsel and
Staff discussing statutory interpretation and legislative intent and the ultimate goals we wished to achieve in regulating this area of
law. I found it very interesting to see the process in creating an agency rule from the ground up.
Overall, it was a privilege to work at the ICC as I was able to learn from so many enthusiastic and hardworking individuals who
have dedicated their careers to energy law. I cannot thank the CFEBA enough
for making this internship experience possible.
Devlyn Tedesco, New York State Department of Public Service
Through the CFEBA’s Energy Bar Fellowship I was afforded the opportunity to spend my summer at the New York State Department of Public Service in
the Office of General Counsel (“DPS”). While I often joked that the best part
of my internship was the amazing view of the Capitol Building from my desk on
the 17th floor, the internship was, in all seriousness, a phenomenal experience.
As the only DPS intern, I became involved in numerous projects within the
department. One task required summarizing public commentary on the Article
X legislation that governs the New York State Board on Electric Generation
continued on page 5
The Charitable Foundation of the Energy Bar Association
Invites you to its Tenth Annual Fundraising Gala
Celebrating a Decade of Giving
November 29, 2012
5:30 to 7:30 p.m.
In conjunction with the EBA Mid-Year Meeting at the
Ronald Reagan Building
Washington, D.C.
Tickets $100 -$50 for government employees
For information call 202/223-5625
Sponsorships $2,500
Featuring Live Music, Silent Auction, Hors d’oeuvres, Open Bar
Proceeds contributed to energy-related charitable projects
Online Gala Registration
EBA Update •
Fall 2012 • 4
News from CFEBA Continued
Siting and the Environment. This assignment gave me a unique opportunity to view a regulation from the perspective of state citizens,
law firms, the energy industry, and local governments.
I also contributed to a Federal Update for the Public Service Commission. The document was intended to provide an overview of
both hot federal energy issues and the impact of the issues on the state of New York. The research and writing for this update greatly
expanded my knowledge of relevant federal energy law topics (such as Yucca Mountain and the latest greenhouse gas emissions issues),
and also helped me to better understand the dichotomy between state and federal governments with respect to energy and environmental law developments.
Although I enjoyed all of my assignments this summer, which included researching and writing various legal memoranda and drafting a ruling for Administrative Law judge Rudy Stegemoller on New York’s Freedom of Information Law with regard to site remediation settlements, by far my most memorable task was the research I performed on the ConEdison Labor Lockout. I learned a great deal
about labor law and the importance of being able to quickly and efficiently research legal topics as they unfolded in real time.
While my tasks this summer allowed me to expand my knowledge of energy law and hone my research and writing schools, the relationships I established during my internship contributed to my positive experience more than any research task. My direct supervisors,
Anthony Belsito and Alan Michaels, continuously endeavored to ensure that my projects were both relevant and interesting. Even
though my desk was stowed away in a corner, nearly every attorney in the office visited my desk and spoke with me about their career
paths and experiences. As an intern, I found their frank advice to be as helpful than the legal skills I learned. General Counsel Peter
McGowan (along with the staff) truly made me feel appreciated and instantly welcomed me as a real member of their team. Early in
the summer, I received an award from Chairman Gary Brown for my efforts on the Article X comments - an accolade which now hangs
proudly on my wall and will serve as a reminder of my summer at DPS. I would like to thank the CFEBA and the Staff at the NYS
Department of Public Service Office of General Counsel for such a unique and memorable opportunity.
CFEBA and Habitat Join Forces to Salvage Recyclable Building Materials
Marcia C. Hooks
Traditionally, CFEBA's joint ventures with Habitat have been to build new or renovate existing homes. This go around, however, EBA members, family and friends partnered with Habitat
for Humanities of Montgomery County (HFH-MC) on Saturday, October 6, 2012 to tear out a
mansion to salvage building materials. Private developers, who will demolish the home, generously allowed HFH-MC to remove recyclable building materials.
By way of background, HFH-MC offers homeownership opportunities to families who are
unable to obtain conventional house financing. HFH-MC’s target recipients are those whose
income is 30 to 50 percent of the area's median income. In most cases, prospective HFH-MC
homeowner families make a $500 down payment. Additionally, they contribute 200 to 500 hours
of "sweat equity" on the construction of their home or someone else's home. Because HFH-MC
houses are built using donations of land, material and labor, mortgage payments are kept affordable. HFH-MC representatives proudly informed us that because of their diligence in selecting
applicants, the support and the financial training that it provides, it has only had one foreclosure
out of the 65 homes that it has sold since its inception as a local Habitat organization in 1982.
HFH-MC staff and its regular volunteers, who come with years of construction experience, were on hand to direct and oversee the efforts of the CFEBA crew. Crow bars and
Sandra Safro wearing appropriate
hammers were forcefully used by CFEBA members to tear out walls to access and salvage
construction gear, a hard hat and
encased electrical wiring and to remove the nails from beautiful reusable pine wood floors. goggles, uses a hammer to remove
nails from recyclable pine flooring.
Others worked on removing ceiling fans and light fixtures. CFEBA members worked very
diligently from about 9:00 am until 12 Noon, when they were served a light lunch, the compliments of HFH-MC, and thereafter, the CFEBA crew gave another two hours of sweat equity. As part this joint venture, CFEBA also
donated $2,500 to HFH-MC.
continued on page 6
EBA Update •
Fall 2012• 5
News from CFEBA Continued
HFH-MC will use some of the recyclable building materials
for its Maple Hill project in Gaithersburg, Maryland, where it will
build 19 new low-income townhouses. Other reusable building
material will be sold at HFH-MC’s ReStore located in
Gaithersburg, Maryland. ReStore takes in donations of new and
gently used home furnishings, furniture, appliances, building supplies, etc., and resells them to the public at discounted prices, and
the proceeds are used to help further the mission of HFH-MC.
Ryan Stertz gets ready to tear
out walls as Claude Lundy
looks on in the background.
CFEBA crew from left to right: Ryan Stertz, Michael Pucci, Claude Lundy,
Marcia and Fred Hooks, and Sandra Safro, wearing the HFH-MC T-Shirts,
proudly show that they have all their fingers, proving we worked safely and
there were no physical mishaps.
EBA Committee’s
Co-Sponsor
Brown Bag
On September 12, 2012, approximately 50 members of the Energy Bar
Association convened at the offices of
Hogan Lovells to attend a brown-bag discussion of the challenges facing regulators
in their efforts to coordinate the electricity
and natural gas industries. The event featured a panel of prominent speakers that
included former FERC Commission Marc
Spitzer (currently a partner at Steptoe &
Johnson LLP), Commissioner Timothy
Simon from the California Public Utilities
Commission, and Chuck Gray, the
Executive Director of the National
Association of Regulatory Utility
Commissioners. Among other things, the
panelists highlighted the potential roles of
the
Federal
Energy
Regulatory
Commission, the North American Energy
Standards Board, and the state utility commissions. Additionally, the panelists discussed the regional nature of the need to
improve coordination between the electricity and natural gas markets. The event
was co-sponsored by the Electricity
Regulation Committee and the State
Commission Practice and Regulation
Committee.
For more information on
EBA Committee events visit:
http://www.ebanet.org/events.php
Thank you to all of the CFEBA volunteers who came out to the October 26th Casey
Trees event. The Dakota Park community was very appreciative of all of your
hard work.
EBA Update •
Fall 2012• 6
Energy Law Journal: Excerpts from
Past Issues
Ten Years Ago
“When the State of California began its march towards restructuring and retail competition in its electric industry in 1994, few imagined the ensuing debacle. Nor would it
have been predicted in the late 1990’s that rapid growth in wholesale market trading and
emergence of sophisticated derivatives instruments would so rapidly disintegrate as a
result of the financial scandal propagated by the collapse of Enron. Yet, in hindsight, the
fundamental flaws were easy to spot: a failure to allow for long-term contracts, a failure
to provide retail customers with price discovery and real-time price signals, and a failure
to address fundamental conflicts between the need to develop new supplies and environmental and other regulations preventing such development. While restructuring may
have initially been envisioned as industry deregulation, the reality of restructuring has
instead become re-regulation. California’s failure will continue to have important implications for utilities, their customers, energy regulators, and the courts.”
EBA Paparazzi
Take Photos of the
Western Chapter
Enjoying Happy
Hour in San
Francisco!
Jonathan A. Lesser, The Used and Useful Test: Implications for a Restructured Electric
Industry, 23 ELJ 349, 350 (2002)
Twenty Years Ago
“The Commission’s implementation of NEPA from an essentially defensive posture
was predictable given the purely economic nature of its normal regulatory duties. That
it would refine and elaborate upon its environmental review procedures at the very time
it was also pursuing decontrol strategies for gas rate and certificate cases was not similarly foreseeable. The time will probably never come when FERC’s defenders and detractors will conclude that the Commission has largely satisfied both its NEPA obligations
and the clamor for greater regulatory efficiency. These conflicting demands may in fact
represent the political unrealism that often surrounds the business of administrative
agencies.”
James J. Hoecker, The NEPA Mandate and Federal Regulation of the Natural Gas
Industry, 13 ELJ 265, 310 (1992)
Thirty Years Ago
“It was evident from the outset that an energetic and experienced trial lawyer was
needed to develop and implement the new trial program. For this task, OGC was fortunate to find James E. Rogers, Jr., who has a broad background in regulatory practice, first
as a State consumer advocate, in utility rate proceedings before a state commission, later
as a FERC staff attorney, and most recently as a representative of natural gas pipeline and
electric utility clients before the Commission. Reallocation of OGC’s resources to the
trial effort made it possible for Mr. Rogers to appoint a staff of six lawyers as assistants for
the trial program, and to give each assistant responsibility for supervising a specific substantive area of practice. This management team was intended to become closely, personally involved in each of the cases set for hearing and thus to serve as a real resource
to the staff trial attorneys rather than as merely an added lawyer of review.”
Charles A. Moore, The New Trial Program at the Federal Energy Regulatory Commission,
3 ELJ 337, 338 (1982)
EBA Update •
F all 2012• 7
To find out about upcoming
Western Chapter events,
contact Western Chapter
President Michael Hindus @
[email protected]
EBA Members Meet New FERC
Commissioner Tony Clark
Marcia C. Hooks
On, September 20, 2012, at the law firm of White & Case LLC, the Natural Gas Regulation and
Electricity Regulation Committees jointly hosted a meet-and-greet reception to introduce to Energy
Bar Association members the newest member of the Federal Energy Regulatory Commission, the
Honorable Tony Clark. Nominated by President Obama and sworn-in on June 15, 2012, as the
newest Republican Commissioner, he will serve a five-year term expiring on June 30, 2016.
Commissioner Tony Clark
entertains
questions from the
Commissioner Clark was accompanied by two of his Legal Advisors, Robin Lunt and Robin
audience.
Meidhoff.
The event kicked-off with a reception during which Commissioner Clark graciously mingled with
EBA members. Following the reception, EBA Electricity Committee Member Caileen
(Kat) Gamache of White & Case welcomed Commissioner Clark and the EBA members to the event. Noha Sidhom, Chair of the Electricity Committee, gave us a brief
introduction of Commissioner Clark. Ms. Sidhom informed us that Commissioner
Clark served as a member of the North Dakota Public Service Commission (NDPSC),
and that he was most recently Chairman of the NDPSC. The office is a statewide elective office, and Commissioner Clark was first elected in 2000. While at the NDPSC, he
was active in state and regional efforts to develop North Dakota’s vast energy exporting
potential and to provide affordable, reliable energy to consumers. In November 2010,
Commissioner Clark was elected to serve a one year term as President of the National
Commissioner Tony Clark and his Legal
Association of Regulatory Utility Commissioners (NARUC), and formerly served as
Advisor Robin Meidhoff chat with one of
the EBA guests.
Chairman of NARUC's Telecommunications Committee.
Commissioner Clark commenced his remarks by lauding EBA as a great credit to
the profession, particularly in its effort to build a network of energy professionals. He also noted that the CFEBA funded a summer
intern this year at the NDPSC. The Commissioner acknowledged that at this initial stage of his FERC tenure, he prefers to observe
for a while rather than give a prepared speech. However, he also informed us that he is very much looking forward to speaking at the
EBA Mid-Year meeting, which is scheduled for this year, Wednesday, November 29, at the Ronald Reagan Building and International
Trade Center.
To the delight of the reception attendees, the Commissioner very willingly entertained questions from the floor. Questions
addressed a variety of topics, such as the integration of wind, an intermittent resource, as well as how to deal with the recent influx of
shale gas. Commissioner Clark stated that building up the nation’s infrastructure was critical to making these resources available to
Americans. He stated that although there are a lot of challenges, the obstacles are not insurmountable, and that these resources present a real opportunity for American energy independence and security. He noted that the discovery of shale gas is vastly impacting
North Dakota, and that there is also tremendous wind development in North Dakota, which in the last year added 1,400 MW of wind
generation. The Commissioner acknowledged that he is agnostic as to the promotion of particular energy sources, because he believes
such choices should be made at the state level.
Another inquiry concerned the Commissioner’s reaction to the dramatic shift in the economy because of the growth of shale gas.
Commissioner Clark commented that a recent survey showed that most of those impacted felt that this development was good for the
community, although he observed that at the moment, communities are not ready to handle the impact. Nonetheless, he believes that
communities are on the whole better off due to the tremendous employment opportunities and the chance to build and enhance their
neighborhoods.
Finally, the Commissioner was asked what he wanted to be known for having accomplished. Most of the work at the Commission
currently, he noted, is two-thirds electricity, but he believes oil and gas will increase in importance. Commissioner Clark concluded by
stating that he is interested in focusing on pipeline infrastructure, but that he is not yet claiming any one particular area as his main
interest.
EBA Update •
Fall 2012• 8
President’s Message Continued
begin to discuss how to share the plan with Association members, committees, and chapters, and how to implement the plan. That
is where the real work begins. Stay tuned.
EBA Board and staff work together to envision the future.
Did you know that EBA’s Mid-Year Meeting is on November 29th and 30th. Watch the weekly EBA E-News for registration information [Online Mid-Year Conference Registration]. This two-day meeting is chock full of topics that are dull and irrelevant . . . . unless,
of course, you are interested in discussing U.S. energy in global markets, challenges to the development of U.S. energy infrastructure,
pipeline safety compliance, bringing renewable energy projects to markets, promoting a culture of compliance, changing electric markets
for today’s resources, Order No. 1000 compliance, coordination between the gas and electric industries, and of course, Ethics!
This year, the CFEBA marks its 10th anniversary. Since its formation, the CFEBA has donated over $1,000,000 in charitable giving.
The generosity of EBA members has been essential to making this possible. On November 29th, please join your colleagues at the
CFEBA’s Tenth Annual Fundraising Gala to celebrate this anniversary, recognize this giving milestone, and move the CFEBA closer to
its second million!
Also at the Gala, the CFEBA is honored to present the Paul E. Nordstrom award to a receipient being recognized for many years of
exemplary service to EBA, CFEBA and FELJ and other outstanding public service contributions.
And if you are looking for one more opportunity to get together during in November, all are welcome to attend the Pre-Meeting
Young Lawyers Reception on November 28th at DC Coast Restaurant, Washington, DC, from 6:30 – 8:30 p.m. Stop by and visit with
your EBA colleagues before the Mid-Year Meeting kicks off.
Innovative Smart Grid Projects – Legal and regulatory
issues generally and in comparison to those presented
by certain recent innovative projects
Smart grid is a hot topic with politicians, the energy (electric, gas and water) industry, advocacy groups and many individuals. This
program will discuss typical legal and regulatory issues presented by smart grid projects and present an innovative smart grid project
structure and discuss the effect of that structure on typical issues and the unique issues presented by the structure. Issues to be discussed include financing, procurement, outsourcing, physical and digital security, disaster recover, safety, confidentiality of data and opt
outs. This brown bag program is presented by the EBA Demand-Side Resources and Smart Grid Committee. The speaker panel
includes: Todd S. McClelland, Partner, Alston & Bird LLP, and Dale A. Bandy, Senior Counsel, GE Digital Energy; and will be moderated by Peter K. Floyd, Partner, Alston & Bird LLP, and General Counsel, Electric Cities of Georgia, Inc.
Date & Time: November 7, 2012, 12:00 noon – 1:30 p.m. (EDT)
Location: Multiple Locations Nationwide with Video Conferencing
http://www.eba-net.org/docs/events/November-7-Meeting-Information.pdf
EBA Update •
Fall 2012• 9
Interview with Commissioner Lee Continued
sented clients in private practice for three
years, dealing with such diverse topics as
government procurement, employment law,
and white collar crime.
How then, did she land a D.C. Public
Service Commissioner nomination from the
Mayor? Notwithstanding her friendship
with the Mayor and his wife, the Mayor
surprised her by asking that she accept the
Commissioner nomination. As she recalls,
he said, “I need new, and I need different,
and I know your background very well and
it is exactly what I want. You will do fine.
Jump in there and do your thing!” The
City Council agreed with the selection, as
she was confirmed. And she has been quite
pleased with this field of endeavor.
She has had an experienced Staff. Her
Executive Assistant is Mable Spears, who
has been at the PSC now for almost 20
years. Her Legal and Policy Advisor is
Angela Lee (no relation), a former private
industry executive practitioner with a “stellar background in telecommunications.”
Plus the PSC Staff is “terrific” and she made
a point of seeking them out to “get into the
weeds as best I can.” She also finds the energy bar to be extremely professional and wellprepared in proceedings
before the
Commission. And she has also had interactions with the EBA through brown bag
lunches and programs. Commissioner Lee
finds the EBA to be a “welcoming, dedicated group.” She looks forward to being even
more involved.
While she has enjoyed practicing law in
all of her former capacities, “this position as
a Commissioner has by far been the most
enjoyable” even though the demands are
greater and the hours are longer. She feels
that she left an “ivory tower,” writing appellate decisions, to do a “big job on a lot of levels” with opportunities to connect regionally, nationally, and internationally with energy officials and industry leaders. She tells us
that she is committed to remain in the ener-
gy sector in one capacity or another once she
leaves office. And she intends to remain in
Washington while so engaged.
FERC is good, she believes, because they
have the needs of the states in mind to
weigh against the federal focus they have to
maintain at FERC.
FERC Commissioner Tony
Clark, “Superstar.”
That’s what you are!
“This position as a
Commissioner has by far been
the most enjoyable” of all she
has had in her professional
career.”
Casting a Wide Net in the Energy
Community
While D.C.-based in her family roots and
in the jurisdiction of her Commission,
Commissioner Lee has had a high profile
nationally over the last three years and
seven months. She was appointed Chair of
the Education and Research Subcommittee
of the National Association of Regulatory
Utility Commissioners (NARUC), which
she is also a member of the Board of
Directors.
Her appointment as
Subcommittee Chair, by the way, was made
by Tony Clark, who at that time was the
President of NARUC and now is the most
recent member of the Federal Energy
Regulatory Commission.
Commissioner Lee is extremely complimentary of Commissioner Clark, calling him
a “superstar,” and stating that he will be a
“phenomenal” FERC Commissioner.
Having former state Commissioners such as
Mr. Clark (Chairman, North Dakota) at
The NARUC Education and Research
Subcommittee has as one of its missions the
training of new Commissioners on the various state commissions. The background of
Commissioners are so varied that
Commissioner Lee finds it important to offer
such training where open and frank discussions can occur in a safe and supportive
environment. In discussing her own commission, she stated that although backgrounds differ, “the reality is that you have
to have an open mind, be flexible, and willing to listen.” She finds that there is no single background that is more suited than
another for a Commissioner. It is “a big picture game.”
Her NARUC Subcommittee has also
partnered with our own CFEBA on projects,
including internships within the state commissions. Thus, Commissioner Lee has
worked with many Commissioners and
energy professionals in her role as Chair of
this important Subcommittee.
She is also a member of NARUC’s
Electricity Committee and its Marketplace
Access Subcommittee. And Commissioner
Lee has been involved in the Mid-Atlantic
Conference
of
Regulatory
Utility
Commissioners (MACRUC). Also, as the
District of Columbia is within the PJM
Interconnection,
L.L.C.
Regional
Transmission Organization footprint,
Commissioner Lee is active in the
Organization of PJM States, Inc. (OPSI),
having served on its Board of Directors as
its Treasurer.
continued on page 11
EBA Update •
Fall 2012 • 10
Interview with Commissioner Lee Continued
Looking Out for Those Most in Need
Passions include attending
to “the needs of the most
“I am very aware of the disparity in income that exists” in Washington D.C., she states. This has
vulnerable of our citizens”
made her very interested in D.C.’s version of the federal Low Income Home Energy Assistance and “energy efficiency and
energy conservation.”
Program (LIHEAP) funding to supplement the payment of utility bills of low-income residents.
Calling this effort “near and dear to my heart,” Commissioner Lee was instrumental in lifting the
income levels to let more people qualify for the Residential Aid Discount (RAD) program. As she explains, “the cost of living in D.C. is so
high that we have to make sure that the needs of the most vulnerable of our citizens, particularly our seniors, are taken care of.”
Another of her leading causes is “energy efficiency and energy conservation.” She vows to continue championing the need to “harness
our natural energy resources, and save and conserve our fossil resources.”
While she personally is committed to continuing with her energy pursuits, she said that she “would definitely encourage” others to pursue either of two growing sectors of the economy, health care and energy. Energy is so important in our everyday lives that she would like to
promote energy awareness in children. Her own daughter, Montana, at 11 years of age, has caught on, in that she is always reminding her
parents to turn out the lights and to recycle.
In closing, she told us of speaking last summer at the scholarship luncheon hosted by the American Association of Blacks in Energy
(AABE). She advised the scholarship recipients to be fully open to exploring all options. She recommends “following your passion, what
makes you happy, because it will not seem like work.” But, she adds, you end up showing up and working hard because of the sheer enjoyment of what you are doing. That is basically what she found as an energy commissioner, and what she intends to continue doing in other
energy endeavors.
We look forward to following this impressive professional in those pursuits.
Sounding Out Lori Lee
What she does for fun: Spend time with family; exercise; read; travel.
Her more recent book selections: Last read Game Change. She wants to read The Autobiography of
Malcolm X, and Arnold Swarzenegger’s new book, Total Recall. She also wants to see Arnold in his
upcoming movie.
Sampling of what is on her bedside table: The gamut, from lightweight periodicals to The Washington
Post and Public Utilities Fortnightly.
All-Time Favorite Movie: The Firm. Knows almost every word. Listens to it to go to sleep.
Favorite sound: Light breathing of her daughter and husband when they are sleeping. It is calming.
Least favorite sound: Long honk of a car horn.
Favorite word: Supercalifragilisticexpialidocious.
Least favorite phrase: No.
What turns her on: Kindness with no expectation of receiving anything in return.
Dream Job: Psychiatrist/Psychologist because “I always want to understand why people do the things
they do.”
EBA Update •
Fall 2012 • 11
JUDGE’S CORNER
The FERC Practice & Administrative Law Judges Committee proudly presents Federal Energy
Regulatory Commission Administrative Law Judge Carmen A. Cintron, our next “Judge’s Corner”
author.
Judge Cintron has served at FERC as an ALJ since December 1999. Prior to joining FERC, Judge
Cintron’s distinguished career in public service include positions as Hearing Office Chief at the Social
Security Administration’s Office of Hearings and Appeals Atlanta North Office, SSA ALJ in San Jose,
California, attorney at the Federal Communications Commission, and Trial Attorney for the Puerto Rico
Justice Department in the Federal Litigation Department. She also has had Federal Court and U.S.
Attorney’s Office internships as well as experience as a Legal Advisor in the Puerto Rico House of
Representatives Judiciary Committee on Civil Law.
Judge Cintron has a B.A. in business administration magna cum laude and a J.D. cum laude from
the University of Puerto Rico, where she earned the Resumil Award for the highest cumulative average
in criminal law.
She is admitted to practice in multiple jurisdictions, and has served as a Board Member and on Hearing Committees for the Board
on Professional Responsibility of the D.C. Court of Appeals, and as an Officer of the D.C. Hispanic Bar Association. And, of course,
she has participated in many events of the Energy Bar Association, including this Committee’s “Meet the Judge” brown bag series.
Here now is her latest contribution to our membership:
By Guest Columnist,
The Honorable Carmen A. Cintron
Administrative Law Judge, Federal Energy Regulatory Commission
Moving Toward an All-Electronic Record: Benefits, Challenges, and the Rules. An Aside on Discovery and
Disclosure – Some Reminders
Slowly but gradually, proceedings at FERC are transitioning away from paper filings. This is in keeping with a world that is beginning
to work more and more exclusively with electronic records. It is also consistent with the Government Paperwork Elimination Act
(which requires Federal agencies to allow electronic submissions, transactions, and records maintenance when practicable), the
Paperwork Reduction Act, and the E-Government Act of 2002. At least one other agency, the Nuclear Regulatory Commission
(NRC), has paperless hearings.1 Additionally, many federal courts require electronic filings and maintain official records in
electronic format.2 This is explicitly authorized in federal rules of procedure.3 FERC recognizes the importance of expanding the
ability to file electronically, as its recent rulemaking attests.4
Our Current Hybrid System of Paper and Electronic Documents
In making this transition from paper to electronic, the system FERC now has is hybrid, and the rules must accommodate the medium (paper or electronic) in which we file, use for the official record, and exchange information. For example, you file pre-hearing
exhibits electronically to the Secretary’s office, but paper copies of these exhibits must be admitted at the hearing (and thus a paper
record is certified to the Commission). As a result, I work with both paper and electronic copies.
1 The NRC amended its rules to require electronic submissions in all agency hearings in 2007. Use of Electronic Submissions in Agency
Hearings, 72 Fed. Reg. 49139, 49139 (Aug. 28, 2007).
2 For a listing of federal district and appellate courts that permit or require electronic filing, see Courts Accepting Electronic Filings, UNITED
STATES COURTS, http://www.uscourts.gov/FederalCourts/CMECF/Courts.aspx (last visited Sept. 10, 2012). For examples of rules requiring electronic filings, follow the links to the rules for the D.C. Circuit and the Eastern District of Michigan.
3 Individual courts are authorized to permit or require papers to be filed electronically. Fed. R. Civ. P. 5(d)(3); Fed. R. App. P. 25(a)(2)(D); Fed.
R. Crim. P. 49(e).
4Filing of Privileged Materials and Answers to Motions, 141 FERC ¶ 61,049 (2012).
EBA Update •
Fall 2012• 12
continued on page 13
Judge’s Corner Continued
It may lend some perspective if I reflect on my own experience
as a judge in dealing with a hybrid system of paper and electronic
copies, and perhaps this will also help you understand the rationale behind my rules of procedure. We deal with an enormous
collection of information in our proceedings at FERC, and my
rules for proceedings conducted before me are designed to make
all of this information in both formats more manageable.
Currently, I am involved in a complex and long-running case that
requires transcontinental travel to hearing. The record associated with this case is vast. To date, eighty-six binders averaging
three-inches have commandeered my office, and these are only
the admitted and pre-filed exhibits on a subset of the issues for
that case. (This count also does not include discovery documents
or the other two sets of copies.) All of this information must be
at my fingertips during hearing, and it is imperative that participants follow the organizational and numbering convention I have
set out in my rules. For example, my rules stipulate an exhibit
numbering format, and it is critical to our ability to organize that
everyone conforms to the convention. Each exhibit must be designated with a participant-specific prefix followed by sequential
numbers beginning with the number one. For instance, Staff may
use “S” and number its exhibits seriatim beginning with the number one: S-1, S-2, . . . Following my convention helps avoid confusion, as does choosing sensible identifiers in labeling exhibits.
For example, participants with similar names should not choose
similar identifiers, such as “ATC” and “ACT.” Further, reserved
numbers are not allowed because having gaps in the numbering
creates confusion, and each part of a witness’s testimony (including supplemental) should be grouped together as much as possible. This system enables me to more easily navigate through your
documents and process them. In addition, I need a means to
track what exhibits have been identified and admitted, and thus I
require a spreadsheet from each of the participants in a specified
format.5 Some of my rules would remain relevant in an all-electronic system for organizational purposes, but many rules (not
mentioned here) relating to processing paper copies could largely
be eliminated.
The large volume of paper is also cumbersome when traveling
cross-country to and from hearing – on my first trip for the aforementioned case, I personally packed twenty-six boxes of paper
exhibits to send back to FERC headquarters. While a judge’s
work is not meant to be easy, reforming the rules to allow for pure
electronic proceedings could literally help me avoid unnecessary
heavy lifting, likely improve convenience for the attorneys, and
completely cut the cost to ship the exhibits. Thus, it may be no
surprise to you that I support a more proactive push toward an allelectronic system and think that we ought to design the rules to
successfully make that shift. While this position is partly based on
my own experience, I suspect a more rigorous cost-benefit analysis would substantiate that position. Such an analysis is beyond
the scope of this article, but I would like to discuss some of the
salient benefits, challenges, and costs associated with transitioning to a paperless system.
Benefits, Challenges, and Costs Associated with
Adopting an All-Electronic System
The benefits of transitioning to an all-electronic system from
the current hybrid system include easier access to the official
record (in electronic format) and generally greater efficiency in
document production, storage, transport, and retrieval.6 For
example, identifying, admitting, and certifying the official record
electronically could reduce errors and costs. Currently, the parties
must hand the court reporter two unbound paper copies of testimony to identify and admit as the official record during the hearing. Even if the exhibit is electronic in its native format, two
copies of it with each exhibit on its own CD or storage device
must be tendered to the court reporter and identified during hearing. These hardcopies are later taken to the court reporting agency to be identified in the transcript, marked, and then sent back
to the judge’s office, where mistakes are corrected, and the record
is certified. This process of collecting, transporting, and marking
large volumes of paper is cumbersome and prone to introducing
errors into the record. Moving to a fully automated, electronic
system that serves as the official repository would eliminate the
need to maintain and mark paper copies as well as the associated
5 Participants must provide an index to the exhibits individually tabbed for quick reference. This index in table form must include the follow-
ing column headings: “exhibit number,” “descriptive title,” “marked for identification,” “received into evidence,” and “comments.” Adequate spacing
for entries must be provided, as I use these tables to account for exhibits identified and admitted in the hearing.
6 Public access to the record is often mentioned as one of the primary benefits of electronic filing in the federal courts. A potential issue is the
accessibility of an original hardcopy that was scanned into electronic format. These hardcopies are typically maintained by the submitting law firm,
which is responsible for producing it if someone needs to see it. See, e.g., D.C. Cir. Order Regarding Electronic Case Filing, ECF-4, May 15, 2009.
Thus, if access to a document maintained by a private entity could be had with about the same ease as if it were maintained by a public entity, then
the problem of public access is not made worse by keeping the official record electronically
EBA Update •
Fall 2012• 13
Judge’s Corner Continued
inefficiencies and risk of errors.
In addition, certifying the electronic
instead of the paper copy as the official
record would reduce duplication in paper
and electronic formats. Many of the documents for FERC proceedings are already
electronically filed and served, but these
are not part of the official record until they
are authenticated and a proper foundation
is established. Thus, where testimony has
been electronically pre-filed, a paper
copy must be certified for the official
record. These paper and electronic
copies must match, but sometimes
they do not. Since the certified
paper copy is the official version,
anyone working from a downloaded
electronic copy risks inconsistency
with the official record. This is partly why I work with paper in addition
to electronic copies and ask that you provide me with them. In particular, three
copies of the exhibits must be sent directly
to me in hardcopy. These hardcopies must
be tabbed, paginated, and organized into
loose-leaf three-ring binders. These
binders must include the public and confidential versions of the exhibits seriatim
and in the same volume.
It is theoretically a matter of amending
the rules to adopt the electronic instead of
the paper copies of the documents as the
official record. Many documents are
already electronically filed with the
Secretary’s office, and those introduced
during the course of the hearing as paper
exhibits (e.g., those used for cross examination) are usually electronically distributed during the hearing through e-mail. I
usually ask that attorneys arrange to have
exhibits (including cross examination
exhibits) e-mailed to me at the time they
are being identified. Electronically displaying these documents and admitting
these into an official electronic repository
likely could be done during the hearing
with current technology. Many of the conference rooms at FERC are equipped with
interactive display boards that are connected to computers and the Internet, and
hearing rooms may also be equipped in this
way to enable attorneys to display and
point out relevant parts of the exhibits to
everyone in the hearing room.
transitioning to a paperless system will outweigh the costs.
The Honorable Carmen Citron at the 2012
Administrative Law Judges Reception
An Aside on Discovery and
Disclosure – Some Reminders
Although exhibits exempt from public
disclosure are handed to the court reporter
in a sealed envelope and are not electronically filed, extending the electronic filing
system to include these documents while
safeguarding this information is not infeasible. The NRC, which has proceedings
involving data that is non-public or classified, already has paperless proceedings.
The NRC’s electronic filing system can
securely handle proprietary, confidential,
non-public, or low-level sensitive but
unclassified filings through the Internet. 7
The costs of transitioning to a purely
electronic system include the investment
in technology and software and some
employee training to use the technology.
The judges and participants would also
have to become familiar with the technology. While this discussion is not meant to
be a thorough cost-benefit accounting, it is
likely that in the long term, the benefits of
Concluding Remarks
My rules evolve as the circumstances
change, but my rules cannot change the
medium in which we conduct our proceedings – rather they work with our existing
hybrid system to help ensure the accuracy
of the record (which is of paramount
importance), as well as help us manage the
large volume of information we have
in two different media. I try to make
my rules forward thinking, but it is
ultimately the Commission that will
have to promulgate the rules to go
paperless. The Commission has
made much progress in that direction, and I look forward to the
change when it comes.
I would like to take this opportunity to
issue reminders on discovery and disclosure. First, in the interest of administrative efficiency, please only present discovery disputes to the judge after you have
done your best to resolve the matter. If
you fail to resolve it on your own, I will
schedule oral arguments as soon as possible to resolve these disputes.
Second, I would like to remind you
that the Commission has issued a policy
statement adopting the disclosure requirements of Brady vs. Maryland in Section 1b
investigations and proceedings arising out
of these investigations.
In Brady, the
Supreme Court held that due process
requires disclosure of exculpatory evidence
material to guilt or punishment known to
the government but not known to the
defendant in criminal cases. While the
Commission does not believe it is constitutionally mandated to have such a policy, it
7 See U.S. Nuclear Regulatory Commission, Guidance for Electronic Submissions to the NRC, Revision 6, May 17, 2010, www.nrc.gov/site-
help/e-submittals/guide-electronic-sub-r6.pdf.
EBA Update •
Fall 2012• 14
Upcoming Events
YLC Mid-Conference
Reception
Judge’s Corner
November 28, 2012
6:30 - 8:30 pm
DC Coast, 1401 K Street, N.W.
Continued
Washington, D.C.
Mid-Year Conference
Online Mid-Year Conference Registration
November 29-30, 2012
Ronald Reagan Building
Washington, D.C.
Charitable Foundation
Tenth Annual Fundraising
Gala, Celebrating a Decade
of Giving
November 29, 2012
.
Ronald Reagan Building
Twelth Annual Western
Chapter Meeting
February 21-22, 2013
Hyatt Regency San Francisco
San Francisco, CA
Sixteenth Annual Midwest
Chapter Energy Conference
March 4-5, 2013
Conrad Indianapolis
Indianapolis, IN
Washington, D.C.
F o r m o r e i n f o r m a t io n o n a n y o f t h e s e e v e n t s , p l e as e c o n t a c t
A s s o c ia t e A d m in i s t r a t o r M ic h e l e D u e h r i n g a t 2 0 2 . 22 3 . 5 6 2 5 o r
m i c h e l e @e b a -n e t . o r g .
ABOUT THE ENERGY BAR ASSOCIATION: EBA is a non-profit voluntary association of attorneys, non-attorney professionals and law students whose mission is to enhance
the professional excellence and ethical integrity of its members in the practice, administration, and development of energy laws, regulations and policies. Established in 1946 as the
Federal Power Bar Association, the Association generally was focused on those lawyers practicing energy regulatory law at the federal level. In 1977, the organization changed its name
to the Federal Energy Bar Association to reflect the name change of the Federal Energy
Regulatory Commission. Today, the Energy Bar Association is an international, non-profit
association of attorneys, non-attorney professionals and law students active in all areas of
energy law. It has over 2600 members, throughout the United States, Canada and
Internationally with six formal chapters in Houston, New Orleans, Midwest, Southern,
Western and Northeast regions of the U.S.
DIVERSITY POLICY STATEMENT: The Energy Bar Association is committed to the
goals of fostering an inclusive and diverse membership and increasing diversity across all
levels of the Association, so as to reflect the diversity of the energy industry and the Nation
as a whole. Attorneys, non-attorney professionals in the energy field and law students are welcome to join our ranks regardless of race, creed, color, gender, ethnic origin, religion, sexual
preference, age, or physical disability and are encouraged to become active participants in the
Association’s activities.
adopted the policy to provide guidance,
eliminate uncertainty regarding the production of exculpatory material, and promote open and fair investigations and
enforcement proceedings.
The policy statement requires
Enforcement Staff to scrutinize materials it
receives during a Section 1b investigation
from sources other than the target of the
investigation for evidence required to be
disclosed under Brady. Such materials
that are known not to be in the possession
of the subject shall be provided to the subject. Once the matter is set for hearing,
Enforcement Staff will provide the presiding judge with an affidavit stating that
exculpatory materials were provided to the
respondent(s). Enforcement Staff is not
required to disclose its strategies, legal theories or evaluations of the evidence, or
conduct any search of materials outside
those it receives in discovery or as part of
its investigatory activities.
Thus,
Enforcement Staff is not required to conduct searches for exculpatory materials
that may be found in the offices of other
agencies. The subject may contact the
other agencies directly for such information. Additionally, in enforcement hearings, respondents may move for disclosure
of exculpatory materials or information
based on a reasonable basis. The presiding
judge may review materials in camera to
determine if the materials are subject to
Brady disclosures.
I thank my law clerk, Jennifer Chen, and legal
technician, Vicki Braun, for their invaluable
contributions to this article.
Energy Bar Association, 1990 M Street, N.W., Suite 350, Washington, D.C. 20036
Tel:
202/223-5625,
Fax:
202/833-5596,
E-mail:
[email protected],
website: www.eba-net.org
© 2012 Energy Bar Association
EBA Update •
Fall 2012 • 15