REPRESENTATIVE EXPERIENCE
Kimberly B. Frank
FERC Litigation and Appeals, Rulemakings, and Technical Conferences
Represented utility in complaint proceeding against respondent utility, alleging respondent’s
transmission formula rate establishing the revenue requirement for certain assets to be unjust
and unreasonable. FERC agreed and granted the complaint, ordered refunds, and directed
respondent utility to make compliance filing addressing changes.
Represented New Hampshire attorney general opposing petition for declaratory order requesting
that FERC declare a state law to be preempted by the FPA.
Represented intervenor in Section 203 proceedings opposing certain proposed elements of public
utilities’ request for merger approval.
Represented respondent rural electric cooperative in complaint proceeding initiated by its
member to terminate power supply agreement; represented cooperative in related proceedings.
Represented utility in complaint proceeding against respondent utility, asking FERC to provide
relief for significant unauthorized flows and adverse impacts to transmission system caused by
respondent’s new transmission line. The case settled, with respondent agreeing to pay more than
US$90 million for transmission facilities necessary to resolve impacts and to new operation and
long-term transmission planning protocols.
Represented state utility commission in complaint proceeding challenging energy market
mitigation rules that exempted some generators from energy-offer mitigation in the PJM energy
market. FERC agreed and directed removal of the exemptions.
Defended five petitions for enforcement filed against three state utility commissions seeking
that FERC investigate each state’s implementation of PURPA. FERC issued Notices of Intent Not to
Act in all cases.
Represented electric cooperative in formal challenges at FERC opposing a public utility’s
implementation of its cost-of-service generation formula rate. FERC agreed with the electric
cooperative’s position each time, setting the cases for settlement and hearing procedures.
Represented electric cooperative in formal challenge proceedings before FERC opposing the public
utility’s implementation of its transmission formula rate. FERC agreed, ruling on the papers and
directing refunds to transmission customers.
Represented electric cooperative opposing a public utility’s proposal to recover unamortized
regulatory assets through wholesale generation and transmission formula rates. FERC agreed,
finding the proposal may not be just and reasonable, and set the case for hearing and
settlement.
Represented intervenor electric cooperative in proceeding before FERC to determine changes to
the formula setting cost-of-service rates for transmission service and the transmission
protocols for a non-jurisdictional rural electric cooperative. FERC agreed, finding the proposal
may not be just and reasonable, and set the case for hearing and settlement.
Represented intervenor electric cooperative in settlement proceedings to update applicant
utility’s depreciation schedule in its transmission formula rate.
Represented a state utility commission in various settlement proceedings setting
“reliability-must-run” cost-of-service rates for generators operating to ensure grid
reliability.
Prepared supporting comments on behalf of state utility commissions in FERC rulemaking
proceedings proposing to revise PURPA regulations.
Eastern Capacity Markets
Represented state utility commissions in numerous proceedings before FERC and the federal
appellate courts concerning the rules governing the PJM or New England capacity markets,
addressing multifaceted issues including competition, federal-state jurisdiction, resource
adequacy and reliability, product definition and performance, fraud, market power and
competition, imports and seams issues, energy offer obligations, zonal pricing, demand curves,
cost-of-new-entry benchmarks, administrative pricing, minimum offer requirements, investment,
market monitoring and mitigation, reliability-must-run compensation, interconnection queue
reforms, and integration of energy efficiency and demand response capacity.
Represented state utility commission opposing the New England Forward Capacity Market (FCM) “Pay
for Performance” rule changes establishing penalties and payments for capacity resources.
Represented state utility commission opposing the New England FCM rule change proposal,
Competitive Auctions with Sponsored Policy Resources (CASPR). The CASPR proposal restricted
entry of new entrant renewable energy resources developed through state initiatives.
Argued for intervenor state utility commission in FERC proceedings below and in New England
Power Generators Ass’n v. FERC, 757 F.3d 283 (D.C. Cir. 2014), supporting FERC’s decision to
reject proposals to implement buyer-side market power rules in the New England FCM.
Prepared comments for state energy administration and state utility commissions participating in
technical conferences about state policies and impacts to the eastern wholesale capacity
markets.
Represented intervenor state utility commission in proceeding opposing proposed changes to a
minimum offer price rule change to the PJM Reliability Pricing Model (RPM) capacity market that
would prevent new generation from offering to sell capacity at verifiable cost-based prices.
Representation continued through the Third Circuit’s review of other elements of FERC’s order.
N.J. Bd. of Pub. Utils. v. FERC, 744 F.3d 74 (3d Cir. 2014).
Developed appellate arguments for a coalition of nine amici state agencies opposing claims in
the Third and Fourth Circuits that state commission-administered procurements for new generation
capacity are preempted by the FPA. PPL EnergyPlus, LLC v. Solomon, 766 F.3d 241 (3d Cir. 2014);
PPL EnergyPlus, LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014), aff’d Hughes v. Talen Energy
Mrkt’g, 136 S. Ct. 1288 (2016).
Represented state utility commission in complaint and in full hearing proceedings against
capacity importers selling in the New England FCM.
Represented state utility commission in FERC proceedings protesting the agency’s exercise of
jurisdiction over the state’s resource adequacy requirements, and petitioned for appellate
review of FERC decisions. Petitioned the US Supreme Court for a writ of certiorari regarding the
application of Chevron deference to FERC’s interpretation of the scope of its jurisdiction under
the FPA. Conn. Dep’t of Pub. Util. Control v. FERC, 569 F.3d 477 (D.C. Cir. 2009), cert. denied,
558 U.S. 1110 (2010).
Utility-Scale Renewables and Offshore Wind
Legal advisor to state regulatory commission staff to develop comprehensive regulations
implementing the state’s offshore wind legislation, which included a commission-administered
competitive solicitation process and the development of financeable offshore renewable energy
credit payment (OREC) mechanism between energy suppliers and wind projects.
Represented offshore supply chain association before the Maryland Public Service Commission’s
“Round 2” offshore wind procurement targeting at least 1.2 gigawatts (GW) of new capacity to be
installed by 2030.
Lead counsel for transmission owners in proposing a method to assign cost responsibility for the
transmission upgrades selected by New Jersey pursuant to the PJM State Agreement Approach. The
transmission upgrades, paid for by New Jersey ratepayers, will support interconnection of 7.5 GW
of offshore wind.
Advised a Connecticut agency on the development of competitive procurements for utility-scale
renewable energy.
Advised a Connecticut agency participating in the three-state New England Clean Energy RFP.
Counseled onshore and offshore developers on a variety of issues arising in connection with
FERC-regulated interconnection procedures, e.g., acquisition of queue positions, self-build
option, milestones, security, study schedules, affected system studies, and interconnection
agreement negotiations.
Prepared PURPA-qualifying facility submissions, Exempt Wholesale Generator (EWG) notices, and
applications for market-based rate (MBR) authorizations to FERC.
Community Solar, Distributed and Behind-the-Meter Generation, and Renewable Energy Certificates (RECs)
Advised financial institution client on a behind-the-meter 1 megawatt (MW) solar project for its
Connecticut campus and submission of a bid for a long-term contract to sell zero-emission
renewable energy credits to a Connecticut distribution utility.
Advised client on interconnection for a .5 MW community solar installation at an apartment
complex for low-income residents. Funded in part through a District of Columbia government
grant, the solar project provides approximately 160 residents with a US$500 reduction in their
electric power bills each year for the next 15 years.
Counseled pro bono grassroots association on a wide variety of legislative and regulatory
initiatives to create opportunities for residential rooftop solar in the District of Columbia.
Represented corporate client in negotiations for an on-site, behind-the-meter solar facility,
including agreements for facility design and construction, operation and maintenance,
interconnection, and the REC offtake agreement.
Performed power purchase agreement reviews for an on-site, behind-the-meter solar facility.
Negotiated electric power supply and REC purchase agreement for large commercial customer.
Represented solar advocacy intervenor before the District of Columbia utility regulator in
proceedings to consider acquisition of electric distribution utility.
Represented solar developer in rehearing of the New Jersey utility commission’s determination
that the developer’s proposed site was not eligible under state law for the project to be deemed
behind-the-meter.
State Utility Commission Proceedings
Represented default electric service provider in two proceedings before the Ohio utility
commission arising from a governmental aggregator’s return of 500,000 customers to default
electric service.
Represented intervenor in Kansas utility commission proceedings to establish an open integrated
resource planning (IRP) process for the state’s regulated public utility affiliates, with
ongoing representation in the IRP stakeholder process.
Represented intervenor in three proceedings before the Kansas utility commission to evaluate the
proposed mergers of regulated utilities.
Represented an electric utility in a complex litigation before the Indiana utility commission,
defending allegations of imprudence, gross mismanagement, fraud and concealment in the design,
engineering, and construction of an integrated gasification combined cycle plant.
Investigated for the Maryland utility commission, the commission’s prior proceedings
implementing retail electric industry restructuring legislation and going-forward options to
provide retail customers with reliable, cost-effective electric service.
Energy Regulatory Diligence and Transactions
Federal and state regulatory diligence for projects under development and operating facilities.
Assisted buyer in a multistate regulatory diligence review of waste-to-energy facilities.
Represented lender in state regulatory diligence for operating gas-fired facility in New Jersey.
Represented borrower in the financing of several New Jersey solar facilities, focusing on state
regulatory issues.
Advised on energy regulatory matters in connection with the sale of a New Jersey gas-fired
generator selling into the NYISO power market.
Assisted lender with federal and state energy regulatory diligence for a US$350+ million debt
financing of a gas-fired generator.
Assisted potential buyer in evaluating portfolio of competitive retail energy companies.
