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Phyllis J. Kessler
Consulting Counsel
Duane Morris LLP
1540 Broadway
New York, NY 10036-4086
USA

Phone: +1 212 471 4713
Fax: +1 212 202 4717
Email: pjkessler@duanemorris.com

Phyllis J. Kessler practices in the area of energy law, with a focus on provision of electricity and gas through alternative sources, representing both providers and customers for energy services, and energy efficiency. She also practices in the area of water issues focusing upon regulation, rate design and supply issues. As part of this practice, she advises clients on energy procurement, on-site generation, various types of energy efficiency projects, power and gas marketing, clean coal projects, solar and wind renewable projects including RECs, RPS requirements, incentives, submetering and many other issues related to the deregulated energy markets. She has significant experience representing and counseling clients on all aspects of regulatory and deregulation business issues associated with regulated and deregulated energy and water issues including intervention on behalf of water end users. Ms. Kessler represents energy marketers, developers, financial institutions and large customers (industrial, commercial, apartment house, non-profit, university, municipal and hospital) . She also appears on behalf of such clients in federal and state court energy litigation matters and regulatory proceedings in various states, including New Jersey, New York, Connecticut, Ohio, Maryland, Virginia and the District of Columbia. Ms. Kessler also practices in the area of utility law and represents client interests in regulatory proceedings involving line extensions and telephone and water companies.

A member of the American, New York State and New Jersey bar associations and the Association of the Bar of the City of New York, Ms. Kessler is a 1972 graduate of New York University School of Law, where she won the American Jurisprudence Award, and a 1969 graduate of the University of Wisconsin with a B.A. in mathematics.

Areas of Practice

• Energy Law

Representative Matters

Energy Law

• Negotiating with multiple utilities to bring power supply to a large, planned data center, including addressing complex issues involving utility franchising, substation and grid interconnection, construction costs and related topics.
• Negotiating line extensions on behalf of large industrial customers with electric utilities.
• Solar-generation projects, including negotiation of power purchase agreements (PPAs), financing documents, disposition of renewable energy certificates (RECs) and other environmental attributes.
• Lead counsel for respondent in Metromedia Energy, inc. v. Enserch Energy Services, Inc., 409 F.3d 574 (3d. Cir. 2005), cert. denied, 126 S.Ct. 1021 (2006).
• Outside counsel to retail energy marketers (ESCOs), including such projects as solar demonstration project; development of on-site generation projects; preparation of form contracts for energy commodity sales to retail customers; litigation related to energy contract disputes, including procurement of fuel in wholesale markets and purchase of retail marketing customer contracts; state regulatory proceedings; and counseling related to energy business strategy.
• Served as client's representative to Independent System Operator committees, including Interconnection, Installed Capacity Exemption Test (ICAP), Creditworthiness, Management, Business Issues and Demand Response.
• Demand-side management projects.
• Electric generation interconnection issues at independent system operators (ISOs) and electric utilities.
• Energy and carbon/green trading.
• Negotiations for pharmaceuticals company and other large customer users of electricity and gas procurement contracts with ESCOs and related negotiations with utilities.
• Negotiation of contract for sale of electric-generating plant site.
• Cogeneration and on-site generation projects, including negotiation of agreements and resolution of regulatory issues.
• Development of form competitive electricity and gas procurement contracts and master agreement for provision of energy service for hospitals.
• Negotiation for end users of shared-savings contracts for electrical equipment.
• Representation of end users related to water bill and electricity bill errors and overcharges.
• General advice to retail gas and electric marketing companies, commercial customers, and industrial customers regarding the transition to competitive energy and telecom usage.
• Resolution of legal and regulatory issues related to coordination and installation of energy and telecom systems in large facilities and client campuses.
• Demand-side metering projects.
• Discussions with New York State Dormitory Authority regarding financing long-term gas supply contracting.
• Advise large hospitals regarding energy sourcing for chilled-water facilities.

Utility Law

• Appearing in numerous water utility rate cases before state and city regulatory bodies addressing ratemaking issues, including revenue requirements, rate of return, rate design, and long-term plant and water-supply issues.
• Appearing on behalf of large commercial and industrial intervenors in numerous telephone, gas and electricity deregulation (and post-deregulation) proceedings.
• Lead counsel for appellant in In the Matter of Public Service Electric & Gas Company's Unbundling, Stranded Costs and Restructuring Filings, 167 N.J. 377 (2001).
• Represented industrial customers in electric and gas deregulation proceedings before state utility commission seeking unbundled rates favorable to client interests.
• Represented universities, hospitals and other commercial customers for electric and gas service in electric and gas deregulation proceedings seeking unbundled rates favorable to client interests and opposing imposition of hourly electricity rates.
• Representation of commercial office buildings in state utility regulatory proceedings involving electric, gas and steam rates in order to reduce the share of increased rates imposed on commercial office buildings.
• Representation of large customers in disputes with Con Edison involving overcharges and individual tariff-interpretation issues.

Professional Activities

• American Bar Association
  - Section of Public Utility, Communications and Transportation Law
  - Section of Dispute Resolution
  - Section of Litigation
  -- Energy Litigation Committee
• New York State Bar Association
• New Jersey State Bar Association
  - Public Utility Law Section
  -- Chair, 2009 Section Administrative Law Conference
  -- Secretary, 2010-present
• Association of the Bar of the City of New York
  - Energy Committee

Admissions

• New York
• New Jersey
• U.S. District Court for the Southern and Eastern Districts of New York
• U.S. District Court for the District of New Jersey
• U.S. Court of Appeals for the Third Circuit

Education

• New York University School of Law, J.D., 1972
• University of Wisconsin, B.A., 1969

Experience

• Duane Morris LLP
  - Consulting Counsel, 2008-present
• Foreht, Last, Landau & Katz
  - Of Counsel, 2002-2008
• Kudman, Trachten, Kessler, Newman & Rich
  - Partner, 1992-2001
• Law Offices of Phyllis J. Kessler
  - Partner, 1984-1992
• Seham, Klein & Zelman
  - Associate, 1980-1984
• New Jersey Department of the Public Advocate, Division of Rate Counsel
  - Deputy Public Advocate, 1976-1980
• Federal Energy Administration
  - Staff Counsel, 1975-1976
• Mount Sinai Hospital
  - Associate General Counsel, 1974-1975
• Pitney, Hardin & Kipp
  - Associate, 1972-1974

Board Memberships

• New York Association of Energy Engineers
  - Board of Directors (first woman elected to this position)

Civic and Charitable Activities

• Former member of Board of Directors of Harry (dance company)
• Former member of Board of Directors of JCH of Bensonhurst

Honors and Awards

• Listed in Best Lawyers in America, 2010-2012
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

Selected Publications

• "State, Municipal and School District Energy Contracting: Making the Promise of Energy Efficiency and Renewable Energy Supply Contracts a Reality; Does it Really?" to be published in New Jersey Lawyer Magazine, June 2011
• "The Windy State: New Jersey Approves Offshore Wind Legislation," Duane Morris Alert, September 2, 2010
• Co-author, "Legal Perspectives: Drug Companies Need Reliable Power," Mission Critical, October 1, 2009

Selected Speaking Engagements

• "Anatomy of a Solar Deal," New York City Bar Association program on "State and Federal Regulation and Promotion of Renewable Resources: What Attorneys Need to Be Aware of When Structuring the Deal," New York City, June 29, 2011
• “Cogeneration in Healthcare, Industrial and Other Facilities: Legal and Practical Considerations,” New Jersey State Bar Association, Corporate Council Institute, January 26, 2011
• "New Jersey's Offshore Wind Economic Development Act," Law Seminars International Telebriefing, October 26, 2010
• "Legal Traps in Energy Contracts, Performance Contracting and NYC Energy Conservation Law of New York City," Association of Energy Engineers Meeting, October 19, 2010
• "Financial Incentives for Energy Projects," Association of Energy Engineers Meeting, April 20, 2010
• "Utility Rate Design—Law and Regulation in New Jersey," New Jersey ICLE CLE Program, sponsored by the New Jersey State Bar Association Public Utility Law Section, April 9, 2010
• "Understanding Energy Contracts," 29th Annual Council of New York Cooperatives & Condominiums Annual Housing Conference, November 15, 2009
• "Green/Clean Investing - The Trend is Up! Meet The Green/Clean Investors," New Jersey Entrepreneurial Network Conference, October 14, 2009
• Chair, New Jersey State Bar Association Public Utility Law Section's Spring Conference, April 17, 2009
• "Achieving Electric Savings through Submetering Using Smart Meters," the Association of the Bar of the City of New York, April 24, 2007
• "Energy Performance Contracts: Legal Perspectives," Association of Energy Engineers Meeting, October 2003
• "Remaining Issues in Open Access in New York," Power Marketing Association Retail Wheeling Conference '98, June 4, 1998
• "Lowering Utility Bills in Municipalities," Union County, New Jersey, December 1, 1997