Paul M. Flynn

Practice Areas

Electric Energy Regulation

Career

Paul’s professional career has been devoted to electric utility and natural gas regulation and litigation since 1985. For the past fifteen years, his practice has focused on representing independent system operators, regional transmission organizations (RTOs) and investor-owned electric utilities in matters before the Federal Energy Regulatory Commission (FERC) and the federal courts of appeals. He has extensive experience developing, supporting and obtaining FERC approval of complex tariff rules for regional markets in electric energy, capacity and ancillary services. In particular, he is among the nation’s most experienced advocates on issues concerning wholesale electric capacity markets, having been intimately involved in the development and justification of forward capacity market designs and reforms for the last fifteen years.

Paul has represented applicants or other active parties in a number of evidentiary hearings before FERC, often on issues related to contested transmission revenue requirements. He also has materially contributed to successful settlements of multiple contentious FERC proceedings.

Paul has substantial appellate experience, having argued cases before the U.S. Courts of Appeals for the Third, Fifth, Seventh, and District of Columbia Circuits, and submitted briefs to the U.S. Supreme Court at both the certiorari and merits stages.

Experience

Representing an RTO in a successful fight alongside FERC in appellate litigation, to allow electric end-users (e.g., shopping malls, colleges, and factories) to offer electric demand reductions into RTO’s wholesale market in competition with generators’ offers of electric supply increases—resulting in landmark U.S. Supreme Court opinion affirming FERC’s jurisdiction over that end-user “demand response.”

Deeply involved in successful development and prosecution at FERC of major capacity market reforms to ensure better performance of resources committed to meet region’s reliability needs, so that millions of customers paying generators to “stand by” and deliver electricity when needed during the handful of peak hours every year “get what they pay for.”

Worked closely with client RTO under conditions of extreme urgency to obtain FERC waiver—granted in a single day—of energy market offer price cap, when extreme winter weather drove generation costs above that cap, raising serious reliability and market operations concerns.

Representing client RTO in successive highly contentious proceedings on rules to set minimum prices for capacity offers from new generators, seeking a balance between preserving long-standing methods of supporting new entry while protecting against price suppression that could undermine efficient market entry. Representation included successful defense of FERC’s approval of RTO’s market rules against challenges by a state utility regulatory commission contending FERC had no jurisdiction to set a minimum price for generation sold into RTO’s market, as well as by incumbent generation companies arguing the rules should have gone further to limit new entry.

Representing RTO in multiple major proceedings to establish, and periodically update, key parameters that are used to clear the capacity market auctions, including an administratively determined demand curve and a detailed estimate of the cost of building a representative new generating plant. Each case has been highly contentious, given the impact on capacity clearing prices, and highly complicated, involving “Monte Carlo” market simulation models, detailed expert estimates of new generation construction and engineering studies. Each case followed different procedural paths, variously involving expert witness technical conferences, an extended multi-party “mini-trial” settlement process and an appellate court challenge, but each was successfully resolved.

Expert in these Jurisdictions

District of Columbia

Maryland

U.S. Court of Appeals, District of Columbia Circuit

U.S. Court of Appeals, Third Circuit

U.S. Court of Appeals, Fifth Circuit

U.S. Court of Appeals, Sixth Circuit

U.S. Court of Appeals, Seventh Circuit

Supreme Court of the United States

Education