Earle H. O'Donnell serves as chair of the Firm's Global Power Industry Group, which pools the talents of more than 130 senior attorneys with regulatory, litigation, finance, M&A, corporate, tax and antitrust capabilities to serve clients in the power industry. Mr. O’Donnell is also chair of the Firm's Global Industry Group Council.
Mr. O'Donnell represents US and international businesses that are engaged in the energy industry as independent power producers, energy trading companies, electric utilities, consumers of power, or equity and debt investors. His work encompasses a wide variety of advisory, litigation and transactional matters including representation of applicants and interveners in mergers and acquisitions cases, RTO proceedings, transmission and interconnection matters, market-based rates, government audits and enforcement actions (both state and federal), and state and federal regulatory proceedings.
Mr. O'Donnell has extensive experience negotiating agreements for the purchase and sale of electric energy and related products, thermal energy and natural gas. He also has extensive experience representing clients before the US Federal Energy Regulatory Commission (FERC), state public service commissions and federal and state appellate courts. He has presented oral argument in many state and federal appellate courts. He has also served as an arbitrator in several disputes involving power purchase agreement and as an expert witness.
Mr. O'Donnell is a nationally recognized authority within the energy industry who has been invited to speak at many venues. Mr. O'Donnell has been interviewed by national and international media. He was interviewed by TV Globo Internacional, Brazil's largest television programmer, regarding the US energy regulatory system, and by MSNBC, regarding the proposed acquisition of TXU by a private equity group. Mr. O'Donnell is also an accomplished author on energy markets and regulatory issues.
He is consistently listed in yearly editions of Chambers USA and Chambers Global, both of which have included him in Band One for Energy: Electricity for many years. The 2013 edition of Chambers Global described him as "a leader on regulatory matters who is praised as a sophisticated practitioner." Chambers USA 2013 notes, "Clients afford him particular praise for his 'excellent industry connections' and the way in which he can aptly 'find out what the real issue is and work with regulators to get things done.'"
- We represented both the buyer and the seller in a proceeding before the New York Public Service Commission seeking approval of the sale of the Bayonne Energy Center (BEC). BEC is a 512 MW generating facility located in Bayonne, NJ which sells all of its output into New York City via a submarine cable. The PSC issued its approval in March 2015 and the transaction closed shortly thereafter;
- Represented Fortis, Inc. with respect to regulatory and other issues associated with its December 2013 agreement to acquire UNS Energy, which owns two regulated electric utilities and one regulated gas utility in Arizona. The total cost of the acquisition is US$4.3 billion. The transaction closed in the summer of 2014;
- Representation of Hess Corporation on federal regulatory issues related to the sale of wholesale power business including tolling agreements to Direct Energy Business, LLC Including FERC approval of the sale of jurisdictional agreements and FERC waiver of natural gas pipeline capacity release regulations;
- Representation of Fortis, Inc. with respect to regulatory and other issues related to its acquisition of the owner of Central Hudson Gas & Electric Corporation with a deal value of approximately US$1.5 billion. The deal closed in June 2013. This transaction was selected as the Energy Deal of the Year at the 2013 M&A Advisors Summit;
- Representation of a cogeneration facility owned by a large oil and gas company in a case of first impression under the qualifying facility provisions of PURPA. The project was the first to seek a finding by FERC that the facility would be used fundamentally to meet non-utility purposes as specified in a law enacted by Congress in 2005 where most of the output would be sold to a utility. We provided detailed information about the operation of the facility and its key role in supporting oil and gas production which convinced FERC to grant our client’s application;
- Representation of a client in a FERC proceeding which addressed FERC's ability to order an electric cooperative that is not subject to FERC's rate jurisdiction to refund amounts it collected for transmission services if FERC found that some or all of the cooperative's rates were not just and reasonable. FERC originally took the position that it could not order a cooperative to refund amounts that it had collected. Our client sought rehearing of that determination. In an order that announced a new policy applicable to all such cases in the future, FERC announced that if the cooperative would not voluntarily agree to provide refunds, FERC would not allow it to collect the rates sought by the cooperative until a final order was issued in the case that established a just and reasonable rate;
- Representation of a large industrial consumer in a proceeding concerning the allocation of the costs paid for demand side response. FERC determined that the costs of demand response should be borne by customers whose rates would be impacted by changes in the price of power caused by reductions in demand. Our client presented detailed evidence that showed that it received power under a long-term contract. As the price under that contract was not based on the price of power in the market, FERC concluded that none of the costs of demand response could be allocated to it;
- Representation of Constellation Holdings, Inc., the successful "stalking horse" bidder in a bankruptcy proceeding, to acquire approximately 3,000 MW of generation for US$1.1 billion from Boston Generating, LLC and its subsidiaries. Mr. O'Donnell served as regulatory counsel on this transaction, which included due diligence; editing the draft purchase agreement; securing FERC orders granting market-based rate authority, EWG status and, in a contested proceeding, authorization under FPA Section 203. He also assisted bankruptcy counsel to develop arguments on matters concerning regulatory law and FERC's jurisdictional reach and advised the client of regulatory concerns and requirements throughout the proceedings;
- Representation of Bayonne Energy Center, an entity owned by Hess Corporation and affiliates of ArcLight Capital, as regulatory counsel in connection with a 512 MW project in New Jersey which includes a submarine cable to deliver its output to New York City. Mr. O'Donnell assisted on federal energy approvals and in negotiation of various power agreements. This deal was selected as "2010 North America Single Asset Power Deal of the Year" byProject Finance magazine and as "2010 Americas Power Deal of the Year" byProject Finance International magazine;
- Representation of DTE Woodland LLC as federal energy regulatory counsel in connection with its purchase, from an affiliate of FPL Group, Inc., of a coal-fired cogeneration power plant in Stockton, California. The facility will be converted to biomass fuel use;
- Representation of EBG Holdings in obtaining FERC and state regulatory approvals for its merger with Astoria Generating Company in a transaction that was valued at US$5 billion;
- Representation of US Power Generating Company (the successor to EBG Holdings and Astoria Generating Company) in a proceeding before FERC regarding the establishment of mitigation rules for sales of capacity in the New York City market;
- Representation of CalPeak Power in the negotiation of Amended and Restated Power Purchase Agreements for five California power projects;
- Representation of the Financial Institutions Energy Group, a group of investment and commercial banks, in FERC proceedings which amended FERC's merger regulations to streamline the approval process for many transactions;
- Representation of an energy trading company in a proceeding initiated by the Illinois Attorney General before FERC and in two related class action suits brought in Illinois court challenging the results of an auction to procure power. Both actions contended that the successful bidders engaged in various forms of anti-competitive and manipulative conduct. Both proceedings were dismissed;
- Representation of an owner of multiple power plants in obtaining regulatory approval for the sale of a 50 percent equity interest in the project holding company;
- Representation of the owner of a large cogeneration project as federal energy counsel in state and federal agency proceedings and before a federal court in a suit challenging the constitutionality of a state public service commission's rates to be paid to qualifying facilities pursuant to federal law;
- Representation of a Canadian holding company on US law issues related to its acquisition of a large Canadian natural gas distribution company;
- Representation of a large multinational company before FERC in proceedings concerning the rules to be applied to a merchant transmission project which will connect the PJM and NYISO markets;
- Representation of a holding company with multiple financial institution owners to obtain FERC blanket approvals for multiple transfers of ownership;
- Representation of a large owner of generation assets and a leading wholesale and retail marketing company in filing for extension of its market-based rate authority;
- Representation of private equity funds in a challenge to a FERC order imposing far reaching limitations on the rights of the funds to exercise rights typically available to minority shareholders;
- Representation of a tax equity owner of wind and geothermal assets on regulatory issues associated with the sale of its interests in those facilities;
- Representation of a subsidiary of Lehman Brothers on state and federal regulatory issues and approval related to the sale of substantially all of its interest in a 204 MW wind farm owned by White Creek Wind I LLC; and
- Representation of Calpine Construction Finance Company, L.P. and CCFC Finance Corp. on federal regulatory issues related to its sale of US$1 billion of senior secured notes.
- US Supreme Court
- US Court of Appeals for the First, Second, Fourth, Eighth, Ninth and District of Columbia Circuits
- US District Court for the District of Columbia