Tariffs, Contracts and Policy Concerning Power Sales and Transmission Services

Power Sales and Transmission Service Contracts

BGM negotiates, drafts and otherwise supports a wide variety of power sale and transmission service contracts. Our recent experience includes drafting capacity and energy purchase and sale contracts, cost allocation contracts, transmission and interconnection service agreements, system coordination agreements and facility funding, sharing and use agreements. We also regularly prepare various related procedural contracts such as parent guarantee agreements, tolling agreements, indemnification agreements, confidentiality agreements, joint defense agreements and settlement agreements. BGM also has extensive experience helping to develop and subsequently customizing various industry standard agreements, including the Edison Electric Institute Master Power Purchase & Sale Agreement (commonly referred to as the “EEI Contract”), the Collateral Annex to the EEI Contract and the International Swap Dealers Association, Inc. (ISDA) Master Agreement. In addition, our attorneys routinely prepare tariffs for cost-based and market-based electricity sales and wholesale transmission services. As warranted, BGM also participates in litigation involving rights and obligations arising under FERC-jurisdictional contracts and tariffs.

We meet our clients’ needs with innovative solutions. For example, both the United State Supreme Court and the United States Court of Appeals for the D.C. Circuit have relied on publications by our attorneys explaining the often-changing “Mobile-Sierra” contract revision doctrine.

• Morgan Stanley Capital Group Inc. v. Pub. Util. Dist. No. 1, 554 U.S. ___, 128 S. Ct. 2733, 2738, 2741 (2008) (citing James McGrew, FERC: Federal Energy Regulatory Commission 152, 160-61 (2003);

• Me. Pub. Util. Comm’n v. FERC, 520 F.3d 464, 477 n.8 (D.C. Cir. 2008) (citing Carmen L. Gentile, The Mobile-Sierra Rule: Its Illustrious Past and Uncertain Future, 21 Energy L.J. 353, 357 (2000)).

Transmission Services, Tariffs and Policy

BGM has been a leader in the development of transmission policy since the early 1970s. Our lawyers have been instrumental in helping to develop transmission policy tailored to the evolving needs of the electric utility industry. We are proud to have accomplished many firsts in the field. For example:

• We filed some of the first generally available transmission tariffs in the nation.

• We had a significant impact on the development of the pro forma terms and conditions of transmission service that FERC adopted in its landmark Order No. 888 and later developed innovative variations of the pro forma tariff that FERC accepted as consistent with or superior to its generic requirements.

• We developed first-in-the-nation transmission services, such as “network contract demand” service.

•We filed the nation’s first transmission tariff formula rate that was based on a projected test year, allowing a utility to recover all of its costs without the time lag associated with historic test year data.

• We filed the first transmission formula rates in the Mid-Atlantic (PJM) region and, through an extensive settlement process, developed formula rate updating and review protocols that have served as the model for many other utilities.

• We secured the first authorization to include 50% Construction Work in Progress in rate base in connection with transmission plant investment.

• We worked extensively with the Edison Electric Institute to develop and convey the public utility perspective on FERC’s revisions to its open access transmission rules under Order No. 890.

• We worked with the National Rural Electric Cooperative Association to formulate and present that association’s recommendations to FERC with respect to the regulation of transmission service provided by non-public utility transmission providers.