ACC Energy Committee Meeting. Wednesday, April 21, 2010; 4:00 p.m. Eastern. Toll-Free Conference Call Number: Pass Code:

Transcription

1 ACC Energy Committee Meeting Wednesday, April 21, 2010; 4:00 p.m. Eastern Toll-Free Conference Call Number: Pass Code: DRAFT MINUTES Attendees: Paul Goatley, ACC Tracey Steiner, NRECA (Chair) Vince Gonzales, Sempra Energy (Vice Chair) Marc Luesebrink, Southern California Edison (Secretary) Nicole Spaur, Shell Oil (Program/Resources Co-Chair) David Webster, Gasprom Marketing and Trading USA Jim Martin, National Renewable Energy Laboratory Kevin Gross, Chevron Chris Heywood, Stat-Oil Megan Kaiser, Stat-Oil Mike Moreno, PPL Ann Bishop, Attorney Robin Quarrier, Center for Resource Solutions Mark Stite, Omni Ruth Boles, Sempra Energy Solutions Catherine Krupka, Sutherland, Asbill & Brennan Kirsten Gibbs, Sutherland, Asbill & Brennan I. Call to Order & Introductions The meeting was called to order at 4:03 p.m. eastern time. Roll was taken. II. Legal Quick Hit: Recent Trends in Regulatory Investigations presented by Catherine Krupka of Sutherland, Asbill & Brennan, 2010 Committee Sponsor. Ms. Steiner introduced the topic of the Legal Quick Hit and the presenter, Catherine Krupka of Sutherland, Asbill and Brennan. Ms. Krupka expressed the intent of her presentation to highlight the key issues that energy companies are facing in the energy regulatory area. Ms. Krupka noted that energy companies are fairly heavily regulated and that this trend can be expected to continue, although the regulatory agencies are attempting to provide greater guidance.

2 Ms. Krupka summarized the four key regulators: FERC (natural gas and power), CFTC (financial products and derivatives markets), FTC (anti-manipulation authority with a regime in the area of petroleum products), and the Department of Justice (e.g., in the area of mergers and acquisitions, settlements of anti-trust issues). These are the four agencies that attorneys should be thinking of when they prepare a compliance plan. Ms. Krupka stated that, with the change in administrations, FERC has a new Director of the Office of Enforcement, Mr. Bay, who has a different approach than prior FERC leadership. Under Mr. Bay, FERC has been prioritizing its enforcement efforts and encouraging compliance by regulated entities. FERC is also providing greater clarity to the regulated community (e.g., penalty guidelines have been circulated for public comment). Ms. Krupka also discussed the CFTC, which provides enforcement in the financial services industry. As a result of the financial crisis, Chairman Gensler of the CFTC has been looking more closely at some of the financial products on the market. In some instances, both the CFTC and FERC may be involved in an issue. The CFTC has also been exploring whether it should assert jurisdiction over certain financial products that involve an element of futures trading. The CFTC has also been looking at the risks presented by financial products and the methods that might be used to reduce the broader risk of those products. Ms. Krupka noted that the CFTC has been meeting more regularly with market participants and it is not unusual to be contacted by the CFTC for this purpose. Ms. Krupka stated that the most common enforcement actions are those related to market rules. The enforcement actions may not involve manipulation, but rather whether a company is accurately reporting its activities. The investigations do not necessarily result in a penalty. Ms. Krupka also said that she is experiencing situations with traders that involve "subtle" investigations (e.g., traders being contacted and asked questions that may eventually result in an enforcement action). Mr. Gonzales inquired about what the rules are concerning investigations and whether the rules are clear. Ms. Krupka said that there are rules, but they are not always clear cut. She has made objections to certain investigation practices and questions. However, if a party doesn t provide information, an agency may look to another agency for the same information. Mr. Krupka said that she will typically consider the tone of the questioning and evaluate whether or not the investigation appears to be headed for litigation. She will typically provide information if she thinks the risk is low. She will also negotiate the scope of an inquiry to reduce costs to the client and/or to avoid the investigation expanding bit by bit.

3 She also noted that a party has the right to consider whether it should produce information. Mr. Heywood noted that there might be overlap between CFTC and FERC and asked Ms. Krupka about this. Ms. Krupka responded that there is overlap and that, right now, the two agencies are reluctant to concede jurisdiction. In the context of some of the current legislative efforts, there has been discussion about creating a bright line. Ms. Krupka said that she thinks that it is more likely that a bright-line will be established as a result of the activities surrounding the CFTC Amaranth enforcement effort (i.e., in an appellate decision). Mr. Krupka invited final questions. Hearing none, she concluded her presentation. III. Approval of March 2010 Meeting Minutes Mr. Gonzales requested comments or corrections on the March meeting minutes. No corrections were noted. The minutes were approved. IV. Work on 2010 Annual Meeting Programs & Committee Networking Event: Program organizers & participant recruitment Co-sponsoring/developing programs on Energy Savings and Climate Change Mr. Gonzales summarized the background on Energy Committee's proposals adopted for the 2010 ACC Annual Meeting. He noted that the program on Consumer Energy Projects will be on the first day of the Annual Meeting. Mr. Gonzales noted that Ms. Anaiscourt is organizing the Consumer Power Project program. Mr. Gonzales noted that the description of the program is on the ACC website. Mr. Gonzales invited any participant with ideas or who wants to participate to contact Ms. Anaiscourt. Mr. Gonzales then introduced the second Energy Committee program topic: The Two Faces of Cap and Trade. He discussed the fact that greenhouse gas regulations impact different companies in different ways. These issues will be discussed during the program. Mr. Gonzales noted that Ms. Ide of Idaho Power will be organizing the panel. Mr. Gonzales noted that three speakers per panel will have their tuition waived. Mr. Gonzales discussed the ACC Energy Committee s event at the ACC Annual Meeting. Mr. Gonzales noted that one of the options being considered is a late evening dessert on Sunday. Mr. Gonzales invited questions. None were raised. V. Upcoming Committee Events & Resources:

4 Webcasts The Committee s third webcast of 2010 will be Natural Gas Procurement & Transportation 101. A date has not been set, but target is June. This webcast is being sponsored and presented by Sutherland, Asbill & Brennan. Resources Report on resources under development, including FERC Compliance Top Ten. Volunteers still welcome to participate in review of FERC 101 InfoPak being developed by Sutherland. Mr. Gonzales provided a summary of the upcoming events of the Energy Committee. Mr. Gonzales asked Ms. Palamaki of Sutherland who might be presenting the webcast on Natural Gas Procurement and Transportation. Mr. Palamaki said that Ms. Gibbs would likely be one of the presenters. Mr. Gonzales asked whether a date had been set and Ms. Palamaki responded that the date has not been established. Mr. Gonzales also described some of the resources that the Energy Committee is currently preparing. Mr. Gonzales noted that the Committee is looking for volunteers to review the info pak. Mr. Gonzales also discussed the FERC Compliance Top Ten. Ms. Palamaki noted that Sutherland has just completed the Top Ten and that it would be available soon. Ms. Spaur noted that the webcast on the renewable fuels standard is now available on the Energy Committee s webpage on the ACC website. Mr. Goatley provided a brief explanation of the resources that are available on the website and how to access them. VI. Other Business Mr. Gonzales offered that, for the May Energy Committee meeting, the Committee might have a roundtable discussion on best practices for a specific item rather than having a Legal Quick Hit. Mr. Gonzales suggested that the Committee might follow up on the topic of regulatory compliance by having a roundtable on how an attorney might react to agency enforcement actions. Ms. Spaur asked whether the topic would be on best practices for responding to regulatory data requests. Mr. Gonzales responded that his inquiry had two parts: (1) do people like the idea of a roundtable? And (2) does his proposed topic sound like a good one? Mr. Luesebrink expressed support for the idea. Ms. Gonzales invited input from participants. Mr. Gonzales inquired about other business.

5 VII. Adjourn Mr. Gonzales adjourned the meeting at 4:55 pm.