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December 17, 2021 Columns

Section Chair’s Report

Catherine P. McCarthy

This is my last column as Chair of the Infrastructure and Regulated Industries Section (IRIS), and I am happy to introduce the 2021 edition of Recent Developments in Infrastructure and Regulated Industries. Up front, many, many thanks to Millie Ronnlund and Daniel Poynor for their leadership in editing Recent Developments. This publication is a big lift, and we appreciate that you have volunteered your time to enhance the scholarship of IRIS.

At our virtual Annual Meeting in August, J. Bradley Fewell became the new IRIS Chair, moving from the Chair Elect position. Brad’s work has benefitted IRIS over the course of many years of his involvement, and the Section will benefit from his strong leadership.

I wanted to take the opportunity of this final Chair’s column to encourage IRIS members to take advantage of what IRIS has to offer; recognize some of those who have worked hard to make sure the Section content and programming remains timely, relevant and of the highest quality; and to remember some of our former Section Chairs.

IRIS programming is of particular relevance today due to our Section’s infrastructure focus. Our Section members represent clients involved in the energy, communications, water, and railroad industries, to name a few, and our Section members’ practices include corporate governance and compliance, infrastructure security, environmental, finance, mergers and acquisitions, state and federal regulatory, and tax. With the current national focus on infrastructure investment, considerations for our clients are developing rapidly. Being part of a group that spans regulated industries and practice areas and that can share ideas is something that I value, and IRIS programming has made me a better practitioner. IRIS members gain exposure to how clients resolve problems in different industries before different courts and agencies, adding to their overall value as attorneys. One example, in particular, comes to mind. Whether acquisition premium is recoverable in regulated rates is a disputed issue in the forum that I most frequently practice before—the Federal Energy Regulatory Commission. It has been helpful for me to learn from other IRIS practitioners what is occurring with this issue in other industries and before other administrative agencies. For example, some state regulators have taken innovative approaches to incent the acquisition of and investment in depreciated and aging water utility infrastructure. I have benefitted from being able to use that knowledge to advocate for other outcomes before another forum. In addition to “cross- pollinating” between fora, IRIS programming is also intended to provide information to keep members current and aware of upcoming trends. For purposes of this edition of Recent Developments, for example, Editors Millie Ronnlund and Daniel Poynor asked the IRIS Committee Chairs to include material that might provide IRIS members with the most useful information about changing landscapes and upcoming trends.

I wanted to provide a high-level summary of some other IRIS initiatives. This year, we published four editions of Infrastructure, our Section newsletter that provides industry practitioners with an opportunity to cover recent legal challenges involving infrastructure industries. Thank you, thank you to Bill Drexel for his continued editorial leadership over Infrastructure. Bill also took the time this past year to produce some fascinating podcasts linked to some of the articles in Infrastructure that include thoughtful discussions with the authors. Earlier in 2021, Bill also interviewed the Chair of our Electricity Committee, Mark Strain, on the Texas energy crisis during and after Winter Storm Uri. Mark’s “boots on the ground” insights were very much appreciated by IRIS members, and we benefitted from his years of experience with Texas energy regulatory issues.

As you may also be aware, IRIS also continued to facilitate CLE webinars this year that not only provide substance for various practice areas but also provide an opportunity for the presenters to raise their own practice profile and become better known within specific areas of law. We are always open to consider webinar proposals from IRIS members, so please feel free to reach out with your ideas, and feel free to volunteer to present! While I was Chair, IRIS hosted four CLE webinars:

  • Physical and Cybersecurity Threats to Communications, Energy and Utilities Infrastructure—2021 Update for Legal Advisors (April 2021)
  • 2021 Outlook on Infrastructure—Regulatory and Legal Developments (April 2021)
  • Natural Gas Faces the Future: More, Less, Green or None at All (October 2020)
  • Climate Change and the Changing Generation Mix: Environmental Effects, Technological Advances, and Policy Options for 2021 and Beyond (October 2020)

IRIS also hosted several non-CLE speakers virtually, including new FERC Commissioner Mark Christi and Charles River Associates economist Justin Lenzo. These informal Zoom discussions and meetings helped us to remain connected and updated during the pandemic. I wanted to thank those who participated in the IRIS webinars and informal Zoom discussions, along with those who presented and those who helped organize these events. I am particularly thankful to Section Officer Noelle Coates for connecting IRIS with great presenters during my time as Chair and to Section Officer Kevin Jones for frequently speaking and writing on infrastructure issues this year and over the years. A special thanks also to Charles River Associates who sponsored our Spring events and provided speaker Seabron Adamson in April 2021.

We would love to hear from you if you are interested in writing for Infrastructure or presenting on a podcast or during one of our informal (non-CLE) virtual meetings. Feel free to reach out to any officer or Committee Chair or contact Susan Koz at the ABA, and she will put you in touch with the most relevant person and “move things forward.”

After passing the baton to Brad, I wanted to thank our IRIS Officers for 2020–2021! I am grateful for their extraordinary effort during a challenging year. Thank you to Brad Fewell, Andrew Emerson, Noelle Coates, Linda Randell, Dynda Thomas, and Christian Binnig.

As I mention IRIS officers, I wanted to take time to remember Robert B. Schwentker who was the IRIS Budget Officer this year and passed away in March 2021. Budget Officer from 2018–2021, Bob was an IRIS Council group member since 2001 and served in many other IRIS positions: Council Group Member; Vice Chair, Electricity; Chair, Infrastructure Security; Vice Chair, Infrastructure Security; and Vice Chair, Corporate Governance and Compliance. Bob was an exceptionally kind and remarkably scholarly lawyer who was selfless in his service to IRIS and will be greatly missed professionally and personally. Bob had a distinguished career and is well known professionally. He spent many years as Senior Vice President and General Counsel of North Carolina Electric Membership Corporation and most recently at Senior Counsel at Nexsen Pruet, LLC. One IRIS member may have captured Bob’s role with IRIS most succinctly: he enhanced what he was involved in, both professionally and socially, with kindness, warmth and inclusion. How could someone do better? We will miss him.

Sadly, three former Chairs of IRIS also passed away during recent months: R. Gordon Gooch, Past Chair (1988–89); William “Dub” Graham, Jr., Past Chair (1990–91); and Ronald D. Jones, Past Chair (1986–87). Gordon Gooch was well known and distinguished in the Washington energy bar. A former law clerk of Chief Justice Earl Warren, Gordon Gooch also served as General Counsel of the Federal Power Commission (predecessor to the Federal Energy Regulatory Commission), among other accomplishments. His obituary indicates that the Washington Post described him as an “oversized, folksy lobbyist.” His professional legacy in the Washington energy bar includes the many that he trained who are current leaders in the bar and attribute their success to him.

Former Chair William Graham is also a former law clerk—he clerked for the U.S. Fourth Circuit and some years later was appointed and served on the bench for the North Carolina Court of Appeals. Following his service on the bench, he served as Vice President and General Counsel of Carolina Power & Light Company and remained there as a valued legal advisor for twenty years. Following his “retirement,” he joined Hunton & Williams (now Hunton Andrews Kurth LLP) for what was initially anticipated to be a few years and became fifteen years. To this day, IRIS remains strongly supported by Hunton Andrews Kurth.

Former Chair Ronald Jones started his legal career in 1965 at the same institution from which he retired—the New York law firm LeBoeuf, Lamb, my former law firm. He headed the Energy-Environmental Department at LeBoeuf until 1989. For over forty years, he represented clients on energy and regulatory matters, appearing before nine state regulatory commissions, the Federal Energy Regulatory Commission, and federal and state appellate courts. His mentees include our fellow past Chair David R. Poe. Our former Chairs have influenced IRIS and will continue to be remembered.

I wanted to close out by thanking Susan Koz, our ABA Section Staff Director, and Patricia Honzik, Susan’s assistant. Susan and Patricia have been vital during the pandemic when our IRIS officers have continued to provide value to its members. For example, our informal virtual meetings have been at their suggestion. Susan and Patricia have also been steadfast with moving forward with ABA deadlines and deliverables throughout the pandemic. We are grateful for their efforts.

In closing, serving as Section Chair has been an honor and privilege and I appreciate the support of IRIS. As Brad Fewell assumes the role, I look forward to supporting him and commit to remain fully engaged in the Section’s future activities—I will take advantage of the opportunities that IRIS presents to write, speak, and engage in other activities to share knowledge with fellow IRIS members and benefit from their knowledge and collegiality.

Catherine P. McCarthy

Chair, 2020–2021

Infrastructure and Regulated Industries Section

September 2021

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