Litigators of the Week Recognizes Orrick Team for Appellate Win in Energy Regulation Case

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American Lawyer today recognized our team in its Litigators of the Week feature for securing an important win in the DC Circuit in a case establishing regulatory precedent in the Federal Energy Regulatory Commission.

The appellate court sided with our client, Broad Reach Power, upholding FERC’s application of its long-standing policy that relies on a power producer’s net energy output to the electricity grid – rather than on the capacity of individual components of the facility - to determine if a renewable energy facility qualifies for small-scale power producer benefits under federal law. FERC had ruled that although the aggregate direct current capacity of the Broach Reach facility’s solar array and battery energy storage system exceed the statutory 80-megawatt cap, the facility can only export 80 megawatts of alternating current power (AC) to the grid, which operates on AC. The ruling affirmed a FERC decision to certify the Broadview Solar solar-plus-battery storage project in Montana as a small-scale power producer entitled to preferential treatment under the Public Utility Regulatory Policies Act.

While a typical solar-only project can produce full power for approximately 25% of the day, by adding battery storage the Broad Reach project can produce power for about 40% of the day, which results in more reliable power supply and greater use of clean solar energy.

The publication recognized partner Bob Loeb, who argued the case, along with partners Adam Wenner and Cory Lankford and senior associate Jeremy Peterman.