Phyllis J. Kessler practices in the area of energy law, with a focus on the provision of electricity and gas through alternative sources, representing both providers and customers for energy services, and energy efficiency. As part of this practice, she advises clients on distributed generation, including solar, wind, cogeneration and biofuel- generation projects, energy storage, interconnection, line extension, energy efficiency projects, power and gas marketing, clean coal projects, submetering, mission critical 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 markets.
Ms. Kessler represents power authorities, energy project developers, energy marketers, financial institutions and large customers (industrial, commercial, data center, apartment house, non-profit, university and hospital) of regulated and unregulated energy services. She also appears on behalf of such clients in federal and state court energy litigation matters and regulatory proceedings in various states, including New York, New Jersey, 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. In addition, Ms. Kessler represents clients seeking interconnection of energy facilities through the Independent System Operator process.
A member of the American and New Jersey bar associations and the Association of the Bar of the City of New York, Ms. Kessler is a graduate of New York University School of Law, where she won the American Jurisprudence Award, and a graduate of the University of Wisconsin with a B.A. in mathematics.
Areas of Practice
- Energy Law
- Utility Law
- Preparation of form solar PPA for RFP issued by Delaware River Port Authority and negotiation of same with winning bidder.
- Preparation of documents for lease of roofs for siting solar plants under new Massachusetts solar program.
- Negotiated agreement for supply of electricity from on site fuel cells.
- Preparation of a form PPA for K-12 schools, at the request of the New York Power Authority. The project will allow a school district to enter into a PPA for rooftop or ground mount or canopy solar for multiple schools in its district.
- Preparation of form energy performance contract at the request of the New York Power Authority for use by state agencies and other approved entities.
- Prepared and negotiated PPA on behalf of the Virgin Islands Water and Power Authority for procurement of electricity from a biofuel generating plant.
- Negotiated PPAs on behalf of the Virgin Islands Water and Power Authority to procure electricity from two large-scale solar projects with two developers.
- Negotiated a PPA on behalf of the Virgin Islands Water and Power Authority for procurement of power from a cogeneration plant.
- Princeton Hospital cogeneration project, which was an EPC project representing the lender.
- Represented owner of industrial building in New Jersey acting as his own developer of solar rooftop project. Responsible for drafting all agreements related to the project, including consultant’s agreement, engineering agreement, contract for purchase of panels, installation contract and financing. Also addressed all utility tariff and state regulatory requirements and worked with utility to enable the building owner to submeter the solar power to tenants.
- Represented provider of solar developer negotiating numerous PPAs related to rooftop solar projects.
- Outside counsel to retail energy marketers, 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; counseling related to energy business strategy.
- Preparation and negotiation of power purchase and interconnection agreements on behalf of a power authority for one of the first offshore wind generation projects off the coast of the United States.
- Represented one of the largest global, nonpartisan environmental advocacy groups in PSE&G's Energy Strong case, which involved proposals made by the utility to strengthen its system post-Sandy and other major storms.
- Represented wind generating project developer in developing a utility scale wind project and associated PPA in Pennsylvania, including corporate, commercial, real estate and regulatory issues.
- Negotiated power supply and power line extension for large data center project.
- Negotiated line extension on behalf of large industrial customers with electric utilities.
- Filing for and working through interconnection process at New York Independent System Operator.
- Negotiating long term gas supply agreements on behalf of various clients.
- Lead counsel for respondent in Metromedia Energy, Inc. v. Enserch Energy Services, Inc., et al., 409 F.3d 574 (3d. Cir. 2005), cert. denied, 126 S.Ct. 1021 (2006).
- Served as client's representative to Independent System Operator committees, including Interconnection, ICAP, Creditworthiness, Management, Business Issues, and Demand Response.
- Demand-side management projects.
- Electric generation interconnection issues.
- Negotiations for pharmaceuticals company, REITs 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 resolution of regulatory issues for hospital and university campuses.
- 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.
- Negotiated with New York City Department of Environmental Conservation over water 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 NY State Dormitory Authority regarding financing long-term gas supply contracting.
- Advice to large hospitals regarding energy sourcing for chilled water facilities.
- 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).
- Representation of developers of alternative electric generation in matters involving utility commission regulatory requirements.
- Represented industrial customers in electric and gas deregulation proceedings before New York and New Jersey utility commissions seeking unbundled rates favorable to client interests.
- Numerous regulatory and complaint proceedings involving regulatory issues with Con Edison, Public Service Electric & Gas Company and other utilities.
- Represented universities, hospitals and other commercial customers for electric and gas service in electric and gas deregulation proceedings in the design of rates, 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 improve the allocation of revenues and the design of tariffs to reduce the share of increased rates imposed on commercial office buildings.
- Representation of hospitals before the state utility regulatory agency in various electricity, telephone and water rates cases to improve the allocation of revenues and the design of tariffs in order to reduce the share of increased rates imposed on hospitals and nursing homes.
- Representation of large customers in disputes with Con Edison involving overcharges and individual tariff-interpretation issues.
- New York
- New Jersey
- U.S. District Court for the Southern District of New York
- U.S. District Court for the Eastern District of New York
- U.S. District Court for the District of New Jersey
- U.S. Court of Appeals for the Third Circuit
- New York University School of Law, J.D., 1972
- University of Wisconsin, B.A., 1969
- Duane Morris LLP
- Of Counsel, 2012-present
- Consulting Counsel, 2008-2012
- 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
- Member of Agrion
- American Bar Association
- Section of Public Utility, Communications and Transportation Law
- Section of Dispute Resolution
- Section of Litigation
-- Energy Litigation Committee
- New Jersey State Bar Association
- Public Utility Law Section
-- Section Chair, 2012-2013
-- Chair, 2009 Administrative Law Conference
-- Assistant Secretary, 2009-present
- Association of the Bar of the City of New York
- Energy Committee
Honors and Awards
- Selected as a 2013 and 2014 Top Rated Lawyer in Energy, Environmental, and Land Use Law by American Lawyer Media and Martindale-Hubbell
Listed in U.S. News/Best Lawyers "The Best Lawyers in America," 2010-2020
- Listed in Best Lawyers in New York, 2013 and 2016
- Martindale-Hubbell® Bar Register of Preeminent Women Lawyers
- Best Women Lawyers in the Northeast, 2012
- AV Preeminent® Peer Review Rated by Martindale-Hubbell®
- New York Solar Energy Industries Association (NYSEIA)
- Board of Directors
- 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
- Quoted, "NYC's Roofs Are Getting a Sustainable Makeover," Smart Cities Dive, January 22, 2020
- Co-author, "New York City's Sustainable Roof Laws Likely to Increase Construction Costs," Duane Morris Alert, December 19, 2019
- Co-author, "Sweeping New Electricity Legislation—Will New York Become a Net-Zero State?," Pratt's Energy Law Report, October 2019
Co-author, "Sweeping New Electricity Legislation - Will New York Become a Net-Zero State?" Duane Morris Alert, July 22, 2019
- Co-author, Energy, Environment and Resources Update
- Co-author, "What Does U.S. Supreme Court Decision Upholding FERC's Authority over Demand Response Mean for the Future of FERC's Jurisdiction?" Duane Morris Alert, February 19, 2016
- "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
Speaker, “Key Documents for a Financible Energy Project,” Columbia Law School conference on “The Basics of Renewable Energy Finance,” September 21, 2018
- Speaker, "Constructing the Future of Energy," Duane Morris Seminar, October 8, 2015
- Speaker, "Reshaping the NY Energy Market: Overview & Implications of REV Order," Agrion, June 3, 2015
- Speaker, "The New Regulatory Environment: The Future is Now," World Association of Distributed Energy Conference, October 16, 2014
- Speaker, "Harnessing the Power of CHP," Duane Morris Breakfast Briefing, October 6, 2014
- Speaker, "Superstorm Sandy's Shadow: Reliability and Resilience as DG Drivers," World Association of Distributed Energy Conference, November 20, 2013
- Speaker, "Clean Energy: Getting Your Projects Funded in the Current Environment," 2012 Annual Meeting of the Eastern Region of the Association of Higher Education Facilities, Philadelphia, October 2, 2012
- Panelist, "Current Renewable Energy Legal Issues," New Jersey State Bar Association, Public Utility Law Section's Annual CLE Conference, April 17, 2012
- "Anatomy of a Solar Deal," Association of the Bar of the City of New York, June 29, 2011
- Moderator, Customer Choice Panel, CLE Program of Public Utility Law Section of the NJ State Bar Association, April 26, 2011
- "Cogeneration in Healthcare, Industrial and Other Facilities: Legal and Practical Considerations," New Jersey State Bar Association, Corporate Council Institute, January 26, 2011
- "Developing Interconnect Campus DG Project: Identifying and Handling Legal Issues," Pace Energy Project District Energy Systems Conference, November 19, 2010
- Moderator, TeleBriefing on New Jersey Offshore Wind Economic Development Act, Law Seminars International Telebriefing, November 10, 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