The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Emily Mallen, Partner
Emily Mallen counsels clients in the natural gas, oil, and products pipeline industries in federal regulatory and transactional matters. She helps her clients understand and comply with their obligations under energy and environmental laws, with particular focus on the Natural Gas Act (NGA), the Natural Gas Policy Act (NGPA), the Interstate Commerce Act (ICA), and the National Environmental Policy Act (NEPA).
Emily has provided strategic advice to pipelines in over a dozen NGA Section 4 and 5 rate case proceedings. She works with in-house counsel to shepherd pipeline projects through the NGA Section 7 certificate process and provides advice on day-to-day regulatory compliance matters before the Federal Energy Regulatory Commission (FERC). She also has experience with proceedings before the Texas Railroad Commission and the federal courts and advising energy industry and trade association clients working through emerging issues in energy and natural resources law.
Describe your practice area and what it entails.
My practice area is energy regulatory, with a specific focus on oil and natural gas pipelines regulated by FERC. The practice has a healthy mix of litigation and transactional components, which could include drafting an appellate brief on a complex regulatory scheme, taking discovery and drafting motions in an administrative law proceeding, or advising financial institutions on how regulatory changes impact risks to their investments in pipeline projects. Because energy, and how we produce, generate, and consume it, shapes our environment, much of my practice also centers on the intersection between energy and environmental laws.
What types of clients do you represent?
Many of my clients are pipeline operators directly regulated by FERC. However, a significant part of my practice includes clients who invest in regulated companies or who ship or trade hydrocarbons on regulated pipelines. While I may work with pipeline shippers in a transactional capacity, my practice revolves around representing pipeline companies before FERC.
What types of cases/deals do you work on?
My workload generally consisted of pure FERC regulatory work, such as representing pipelines in FERC rate cases and assisting with tariff filings to revise terms and conditions of service, then defending those filings in administrative proceedings. However, lately, my workload has diversified considerably and contains a larger transactional component. One recent project included providing counsel to a FERC-regulated pipeline that was looking for regulatory solutions to a pending shipper bankruptcy. I helped to develop the pipeline’s legal arguments that the NGA and FERC regulatory scheme prevented the shipper from rejecting its transportation service agreement with the pipeline in bankruptcy. That case is now on appeal. I also worked to ascertain the FERC regulatory risks on another transaction that would have resulted in my client owning a 50 percent stake in one of the largest midstream companies in America.
How did you choose this practice area?
I graduated law school fully intending to practice health care law. I ended up taking a job with a firm known for its boutique energy regulatory practice after really clicking with the lawyers there. I was drawn to the work because energy, like health care, is a complicated and highly regulated industry that touches the lives of every American. I found that I enjoyed the technical aspects of the practice and the STEM focus even though I did not have a hard science or engineering background. Often, I found myself working directly with engineers, and I was tasked with distilling technical concepts into effective advocacy. I ultimately specialized in the pipeline component of energy law because of the excellent mentors I had in that field and the client-facing opportunities they gave me early on. I also found the Energy Bar to be a collegial and professional group of people both as colleagues and adversaries.
What is a typical day like and/or what are some common tasks you perform?
Every day is a little different in my practice area, but the common thread is that I am always solving problems. Some of the most interesting tasks include determining how FERC regulations would apply to a regulated asset post acquisition and making sure that a client can achieve its business objectives and be compliant once the asset is acquired. Often, I am tasked with explaining the regulatory construct to a client’s business unit that is less familiar with how they apply. When I am working on a rate case, I may be helping a witness craft their pre-filed testimony or be negotiating with opposing counsel or FERC trial staff over the production of discovery responses. Or, I may be helping a client implement a FERC compliance plan.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
I was an English and Political Science major at a university known for its engineering and medical schools. For that reason alone, I have often regretted not focusing more on physics, chemistry, and engineering to take better advantage of my tuition dollars. An analytical and curious mind is the most important skill for my practice area, but a hard science background would certainly help, especially because the regulations are often steeped in how the systems physically work. However, FERC is primarily an economic regulator, so having some coursework in economics and antitrust are also useful. And anyone wishing to practice regulatory law should take Administrative Law and understand the rulemaking and adjudicative process. Most law schools do not offer energy law classes, but students may want to have a basic understanding of environmental law, which is more universally taught.
What do you like best about your practice area?
I love the technical aspects of my practice area, and I love being a subject-matter expert in energy law. As a society, we are at a point in time in which we must think critically about where our energy comes from and how we want to generate it going forward. There are so many problems to solve in managing our energy future, and I believe that there is a positive role for the oil and gas industry to play—provided it is regulated properly. I find it very exciting to be a part of the energy debate that is helping to shape our country’s energy future. I also love that my practice area touches a number of other practice areas, including Environmental, M&A, Appellate, Corporate Governance, and Project Finance. It is a pleasure to collaborate with my colleagues in all of these areas.
What misconceptions exist about your practice area?
In the past 10 years, the siting of oil and gas pipelines has become extremely political because they are seen as proxies in the debate over greenhouse gas emissions (GHGs) that contribute to climate change. Certainly, our national awareness of GHGs and the role they play has increased considerably since I began practice in 2007, which was shortly after the Supreme Court’s landmark Massachusetts v. EPA decision. Non-lawyer friends often ask me if I represent the “good guys” or the “bad guys.” My response is: “Do you turn on the lights in the morning? Charge your phone at night? Enjoy taking hot showers? So, are you a good guy or a bad guy?” We are all consumers of energy, but we are not always informed consumers, and we should not demonize one form of energy over another. Most oil and gas regulatory lawyers I know have an environmental background and care deeply about sustainability, conservation of resources, and preservation.
What are some typical tasks that a junior lawyer would perform in this practice area?
We rely heavily on our junior lawyers for their research and writing skills, and I do my best to give associates as much context as possible for every research and writing assignment. It is rare for a client to want a formal memo anymore, so most written product takes the form of well-organized emails. Almost all first-draft memos come from associates. For litigation matters, junior lawyers manage the exhibits, help draft witness outlines and pre-filed testimony, and assist with briefs and motions. For transactional matters, junior lawyers assist with due diligence. Whenever possible, I include junior lawyers on client calls and give them speaking roles to help develop verbal advocacy and client-management skills.
How do you see this practice area evolving in the future?
The energy industry is changing rapidly. We are already seeing gas bans in some municipalities and regional policies that promote electrification over fossil fuels. This does not spell doom for oil and gas regulatory attorneys. The economic regulatory component is here to stay. Investors will need to extract maximum value from pipeline infrastructure, so there will be more heated pipeline rate cases, particularly at a time when pipeline customers are under pressure to reduce their carbon footprints. A number of emerging issues are also evolving, and the interplay of energy and environmental laws continues. We may see new regulations that promote the transportation of hydrogen through existing pipeline infrastructure and new regulations on cybersecurity protocols for pipeline operators. With all of the changes coming, it is important to remember that your value as a regulatory lawyer lies in your personal and professional relationships with the regulator.