Public Utilities & Regulatory Law
Riker Danzig has a broad and diverse public utility and regulatory practice. Our attorneys have represented clients before governmental agencies and the Courts in all the principal areas of utility and regulatory law. In addition, the firm’s utility and regulatory practice group works hand-in-hand with our governmental affairs group in Morristown and Trenton. We also team with attorneys in our local government, land use, real estate, corporate, tax and environmental practices. In this manner, we provide comprehensive representation before all relevant governmental branches on legislative, regulatory, litigation and transactional matters. Following is an overview of the firm’s utility work in the following areas:
The firm currently serves as outside New Jersey regulatory counsel to Rockland Electric Company, a Consolidated Edison subsidiary, and has successfully represented it in a broad range of rate case and other regulatory proceedings before the New Jersey Board of Public Utilities (BPU) and the New Jersey Courts. Matters include:
- A proceeding to implement Advanced Metering Infrastructure (AMI) and smart meters throughout its service territory
- A proceeding for approval of storm hardening and resiliency programs (including the first electric undergrounding program) and an alternative rate recovery mechanism
- Five base rate cases since 2002
- A storm cost recovery proceeding to fully recover the costs of responding to Superstorm Sandy, Hurricane Irene and other storms
- A proceeding to implement a smart grid pilot program and for a cost recovery surcharge
- Clean Energy matters and Petitions pursuant to RGGI legislation for approval of Energy Efficiency Programs, an SREC-based financing program and Demand Response (DR) Programs
- Appeal of the BPU’s LCAPPP orders
- Proceedings arising out of the Electric Discount and Energy Competition Act 1999 (EDECA) and its many amendments, including comprehensive electric industry stranded cost, deferred balance and restructuring proceedings
- The first proceeding to address “securitization” of deferred energy costs pursuant to legislation drafted and assisted through the legislature by the firm
- Energy Master Plan Matters
- The divestiture of generating assets
- The merger of Rockland’s parent, Orange and Rockland Utilities, with Consolidated Edison, Inc.
In addition to Rockland Electric, the Firm has had the opportunity to work with the New Jersey Utilities Association (NJUA), the trade organization for the state’s electric, gas, water and sewer utilities, and each of the state’s other electric distribution utilities in a variety of matters. The firm currently represents the NJUA before the Appellate Division of the New Jersey Superior Court, as a Respondent defending against a challenge to a BPU Order that favorably modified the methodology used for calculating consolidated tax adjustments (CTAs) in public utility rate proceedings.
The firm represented Atlantic City Electric Company, d/b/a Conectiv, in the year-long legislative process resulting in EDECA. In that endeavor, the public utilities and regulatory practice group and governmental affairs practice group worked in coordinated fashion to formulate proposed language for the legislation which met the client’s objectives, and to press for enactment of the legislation before key legislators, regulators, the Office of Chief Counsel to the Governor and other influential constituencies. We have represented Atlantic Electric in proceedings before the BPU, Superior Court and Appellate Division in defense of condemnation litigation initiated by a municipality in an effort to acquire a portion of the company’s distribution system and customers by a municipality.
The firm represented FirstEnergy Corp. in the joint filing with Jersey Central Power & Light Company, d/b/a GPU Energy (JCP&L), for necessary approvals from the BPU relating to the merger of GPU, Inc. with FirstEnergy. The firm also previously served as counsel to JCP&L on governmental affairs and legislative matters. We participated in regulatory and legislative hearings following the accident at the Three Mile Island Nuclear Generating Station and in related appellate litigation. We also represented JCP&L as trial and appellate counsel in major federal litigation involving interstate transportation of spent nuclear fuel.
Additionally, the firm has represented Public Service Electric and Gas Company (PSE&G) on a number of matters and cases, including appeals from contracts entered into under flexible rate legislation.
The firm has also represented non-utilities in certain energy-related matters. The firm recently served as New Jersey Counsel to Calpine Corporation in its acquisition of Champion Energy Services, LLC, a licensed power supplier. We also represented Calpine as New Jersey Counsel in its $1.63 billion purchase of 4,490 MW of power generation assets from Pepco Holdings, Inc. and the related acquisition financing from a syndication group led by Credit Suisse AG. The purchase included 18 operating power plants, half of which were located in New Jersey.
The firm has also represented unregulated entrants to the competitive electric market on discrete licensing and regulatory matters, including Consolidated Edison Solutions, Compass Energy and Green Mountain Energy Company.
The firm has served as counsel to several lenders to and developers of cogeneration projects, including projects at Marcal Paper Mills in Elmwood Park, Schering-Plough in Kenilworth, the Exxon refinery in Linden and the Coastal Oil Company Eagle Point facility in West Deptford Township.
For over three decades, the firm has successfully represented clients in telecommunications matters before regulators, legislators, and the Courts.
For the past several years, Riker Danzig has served as outside New Jersey counsel to Sprint in BPU and appellate matters. Recently, the firm successfully represented Sprint before the BPU in a litigated proceeding achieving reductions in switched access rates, and then again before the Appellate Division in upholding that favorable BPU decision against several appeals. The firm also represented Sprint in obtaining BPU approval of its acquistiion by SoftBank and subsequent reorganization, and in the BPU’s ILEC service reclassification and alternative regulation plan proceedings.
In addition, following divestiture in the early 1980’s until its merger with Southwestern Bell Company, the firm served as outside New Jersey regulatory counsel to AT&T Communications of NJ, L.P. (AT&T). In this role, Riker Danzig represented AT&T in the major divestiture and post-divestiture telecommunications proceedings before the BPU and Appellate Courts, including its initial post-divestiture rate and access charge proceedings. We also participated with the BPU staff in the development of rate flexibility regulations for IXCs. We represented AT&T in the legislative hearings which culminated in the enactment of legislation substantially deregulating the pricing of interexchange carrier services throughout New Jersey. (See the 1992 Telecommunications Act, N.J.S.A. 48:2-21.16 et seq.) We also represented AT&T in the proceedings before the BPU and Federal District Court which successfully opened up the intraLATA toll market to competition, first on a 10XXX dial-around basis, and then on a presubscription basis. The firm also represented AT&T before the BPU in matters involving implementation of the Telecommunications Act of 1996, as well as Verizon’s Plan for an Alternative Form of Regulation. For example, we represented AT&T as outside New Jersey Counsel in its initial arbitration with Verizon (then Bell Atlantic) pursuant to the Telecommunications Act and in the BPU’s generic local competition proceeding. The firm also represented AT&T in obtaining regulatory approvals for transactional matters including restructuring and securitization of accounts receivable. Finally, we successfully represented AT&T in the proceedings before the BPU to obtain approval of its merger with SBC.
We have assisted a number of established carriers, CLECs and resellers, both public and private, large and small, in certification matters, financing applications, merger proceedings and other matters before the BPU; interconnection/resale negotiations under the Telecommunications Act; and litigation matters.
Riker Danzig also represents certain owners of residential apartment buildings in transactional, regulatory and litigation matters involving the provision of cable television and Internet services, including in defending against petitions by cable television carriers to provide forced access to the premises.
Riker Danzig is representing the City of Trenton in the negotiations of a water supply agreement with New Jersey-American Water Company to insure the City has a continuous supply of water while its finished water reservoir is closed for renovation.
The Firm previously assisted Trenton in the preparation of a Request for Proposals and negotiated contracts with New Jersey-American Water Company for the sale of Trenton’s outside water utility system and for long-term water supply of the acquired system. Riker Danzig represented Trenton in a joint filing with New Jersey American which secured BPU approval of the transaction. Subsequently, Trenton’s voters rejected the sale in a referendum.
Riker Danzig has represented United Water Resources Inc., formerly Hackensack Water Company (United Water), one of the State’s largest private water companies, in connection with successful litigation which led to implementation of the Wanaque South Project, a joint project with the North Jersey District Water Supply Commission (NJDWSC), which has greatly increased the reliable water supply to the over one million persons served by United Water and by NJDWSC. We also helped United Water secure regulatory approval for the refinancing of $100 million of tax-exempt debt used to finance the project. The firm also has represented United Water in numerous rate and appellate proceedings before the BPU and in the New Jersey Courts.
The Firm served as legislative counsel to United Water in connection with drafting and securing passage of the New Jersey Water Supply Public-Private Contracting Act, P.L. 1995, c. 101 (N.J.S.A. 58: 26-19 et seq.), which provides a streamlined process by which a private firm may contract for up to forty years to operate a municipally owned water system. We also assisted United Water in securing enactment of the New Jersey Wastewater Treatment Public-Private Contracting Act, P.L. 1995, c. 216 (N.J.S.A. 58:27-19 et seq.), which was modeled after the earlier water supply public-private contracting act. We subsequently successfully litigated an action on behalf of United Water against the NJDWSC and the City of Bayonne which established that a regional water supply authority could not enter into a similar arrangement with a municipality under the auspices of its enabling legislation and the Interlocal Services Act, N.J.S.A. 40: 8A-3 et seq. See United Water Resources, Inc. v. North Jersey District Water Supply Commission, 151 N.J. 497 (1997).
Riker Danzig has served as General Counsel and Special Counsel to the Jersey City Municipal Utilities Authority and has provided advice concerning the water supply contracts, water rates and other matters over which the Authority has jurisdiction. Riker Danzig has represented JCMUA in connection with its combined sewer overflow program, including negotiation of an Administrative Consent Order with the State. We have advised JCMUA on many issues related to its sewer system, including rates and in negotiations with other authorities. Riker Danzig is representing JCMUA and Jersey City in major litigation against the Rockaway Valley Regional Sewerage Authority (RVRSA) relating to their obligations to fund a large portion of RVRSA’s budget.
The firm has also represented Aquasource Utility New Jersey in proceedings before the BPU and in connection with the acquisition of its parent by Philadelphia Suburban Water Company.
In addition, the firm represented the New Jersey Foreign Trade Zone in the sale of its water system to New Jersey American Water Company and have represented other developers in connection with the sale of water system assets to a water public utility. We have also performed extensive work in the area of water rights, a subject of vital importance to New Jersey as public and private interests compete for that precious resource.
From 1990 until its 2016 sale to American Water Works, Inc., we represented Environmental Disposal Corp. (EDC), which provides collection and treatment service to a development of over 5,300 units in two municipalities and provides treatment service to sewerage from all or portions of three municipalities on the basis of bulk treatment contracts which the firm negotiated with the municipalities and for which it obtained BPU approval. The Firm represented EDC in four rate cases before the BPU and secured approval of several financings. The firm also assisted EDC with various applications before DEP and in negotiating with municipalities and developers.
The Firm represents Madison/Chatham Joint Meeting which provides treatment of sewage from municipalities and is assisting on the negotiation of an amended and restated contract between the Joint Meeting members.
Riker Danzig provided legal advice to the Township of West Caldwell relating to its sewer system and its contractual relationship with the Borough of Caldwell, which treats West Caldwell’s sewage.
We also conducted an investigation of sewer and water rates charged by the public utilities serving a majority of the residents of the Township of Allamuchy and rendered a report providing options to the municipality.
Riker Danzig’s experience in the multifaceted area of solid waste disposal is unparalleled. We have represented the principal developers of waste-to-energy facilities, Covanta Energy (Covanta), and Wheelabrator Environmental Systems Inc. (Wheelabrator) in connection with enforcement actions of DEP, and all other aspects of solid waste regulation. The firm has represented the Integrated Waste Services Association, the trade association of the waste-to-energy industry, as intervenor in a major litigation and in legislative initiatives.
The firm represented the Covanta subsidiary which owns and operates a waste-to-energy facility in Warren County in litigation against Somerset County, Hunterdon County and a transfer station operator/hauler, regarding the equitable allocation of the burdens associated with invalidation of an Interdistrict Agreement among Somerset County, Warren County and the Pollution Control Financing Authority of Warren County. The firm secured necessary New Jersey regulatory approvals for the 1998 restructuring of the Union County solid waste disposal system. Before restructuring, we represented Covanta’s Union County subsidiary in litigation in both the State and Federal Courts pertaining to the enforceability of an Interdistrict Agreement between Bergen County and its Authority, and Union County and its Authority.
The firm represented Covanta’s Warren County subsidiary in litigation brought by East Coast Sanitation (East Coast) against various disposal facilities and the Morris County Municipal Utilities Authority in which East Coast alleged that it was harmed by Morris County waste being disposed of at facilities other than the ones designated in the County’s Solid Waste Management Plan. The firm succeeded in having the complaint dismissed with prejudice by the trial court and successfully represented the Covanta subsidiary in East Coast’s appeal.
The firm also has assisted Covanta in connection with legislative initiatives to secure State assistance in dealing with the stranded debt problem associated with invalidation of the flow control regulation.
The firm represented Wheelabrator and assisted it in securing the requisite permits and approvals for construction of a resource recovery facility in Gloucester County. In the process, we assisted the client in developing, proposing and having adopted by the BPU, a generic approach to regulation of resource recovery facilities which involves a rate levelization process never before attempted. We also successfully defended the site designated for the facility in trial and appellate litigation and achieved a favorable resolution of various matters before the DEP, including litigation concerning alleged air permit violations. The firm also represented Wheelabrator in litigation pertaining to the continued viability of its franchise and the covenant not to compete, which the Gloucester County Improvement Authority had entered into in connection with a financing.
The firm represented Granite Acquisition, Inc. (“Granite”) in a 2014 regulatory filing which secured approval of the change in indirect control over Wheelabrator Environmental Systems, Inc., (“WES”), a New Jersey solid waste disposal utility which operates a waste-to-energy facility in Gloucester County, N.J. Granite acquired all of the stock of WES’s indirect owner, Wheelabrator Technologies, Inc., from several indirect subsidiaries of Waste Management, Inc. Recently, the firm secured approval of EQT Infrastructure, Inc’s. acquisition of indirect control of Environmental Protection and Improvement Company, LLC (EPIC), a New Jersey solid waste collector and disposal utility carrying on an intermodal container business at a railroad facility in Newark, N.J. In 2015 we assisted EPIC in the successful resolution of an issue related to operations at its intermodal container facility in Newark, NJ. We also assist several clients who own companies in the solid waste business in New Jersey in complying with the A901 Statute, which imposes stringent reporting requirements on those in the ownership chain of such companies.
For twenty-five years, Riker Danzig represented the Cumberland County Improvement Authority (Authority) in proceedings before the BPU and subsequently the DEP to establish landfill tariffs and to secure approval of necessary financings and host community benefit agreements. In addition, we provided advice and guidance to the Authority in its contracting activities in the wake of Court decisions invalidating the State’s original flow control system and in connection with developing appropriate plans to participate successfully in a competitive environment.
We also have done extensive work in the sludge disposal area, having represented EPIC in the matter described above and the former Bio Gro Systems, Inc. in securing an important subcontract for utilization of its process by the Bergen County Utilities Authority, and in connection with a plant which it operated for the County of Burlington. We also have experience in bid and contract issues related to delivery of sludge disposal services.
The firm also represents the Borough of Chatham in its dealings with solid waste collection companies and state regulators in connection with its solid waste collection disposal.