Phyllis J. Kessler

Of Counsel

  • Phyllis J. Kessler
  • Phone: +1 212 471 4713

    Phyllis J. Kessler - LinkedIn Import to Address Book

  • Duane Morris LLP
    1540 Broadway
    New York, NY 10036-4086
    USA

Phyllis J. Kessler practices in the area of energy law. With a focus on the provision of electricity and gas through cutting-edge renewable technology and applications and through sustainable practices, Ms. Kessler combines deep knowledge of energy project transactions with extensive experience in state and federal energy regulation and proceedings.

Ms. Kessler’s energy project experience includes solar, wind, microgrid, fuel cell, energy storage, cogeneration, biofuel-generation, interconnection and line extension. She negotiates carbon reduction credit agreements and advises clients on power and gas marketing, submetering, energy efficiency, rate design and other issues related to deregulated energy markets.

Ms. Kessler represents project developers, financial institutions and large consumers of regulated and unregulated energy services (such as industrial, commercial, data center, multifamily housing, non-profit, university and hospital customers), marketers of competitively sourced electricity and gas and power authorities. She appears on behalf of such clients in federal and state court energy litigation matters and regulatory proceedings in various states.

In addition, Ms. Kessler represents clients of energy facilities involved in the Independent System Operator (ISO) process. She formerly represented a retail marketer of electricity on New York ISO Committees, influencing the development of rules related to interconnection, ICAP, creditworthiness, operational issues and demand response. Ms. Kessler also assisted in establishing the first urban electric cooperative in the U.S.  In addition, she worked on developing a market for renewable energy in Vietnam.

Throughout her career, Ms. Kessler has negotiated gas and electric power contracts for commercial and industrial customers across the U.S., including New York, New Jersey, Connecticut, Pennsylvania, Maryland, Virginia, Massachusetts, California, Washington, DC and Ohio. She represented large consumers of utility services in numerous regulatory proceedings with Con Edison, Public Service Electric & Gas and other utilities.

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

  • Renewable Energy
  • Energy Regulatory

Representative Matters

    Renewable Energy

  • Represented a property developer in connection with its approximately 500,000 square-foot mixed-use project, in which Ecosave, Inc. was awarded a New York State grant to build the largest geothermal project in New York City; located in Brooklyn, it features a community geothermal heat pump system to electrify and decarbonize two buildings’ heating, cooling and hot water systems, providing efficient, low carbon heating and cooling to the complex’s many residential apartments, 30% of which are designated affordable housing.

  • Represented a wholesale fossil fuel supplier in its first renewable energy project, a community fuel cell project in the Long Island Power Authority’s service territory, including revising the fuel cell equipment and O&M contracts with the equipment vendor, and preparing a form EPC contract to be used with an RFP at a future date, and an application to the NY Public Service Commission for approval of the client as a community distributed generation provider.

  • Represented an agricultural production company in creating a contract for the construction of a greenhouse in West Virginia for procurement of the balance of required material.

  • Representing Compass Energy Platform, a clean energy development and financing platform, in connection with the development of a microgrid to produce and distribute electricity to offtakers in an Opportunity Zone.

  • Representing developer of community fuel cell project with multiple sites on Staten Island, New York, in drafting and negotiating contracts with fuel cell supplier and EPC contractor to permit sale to residential customers.

  • Representing Delaware River Port Authority, the regional transportation agency, in connection with a major solar energy project that, once completed, could provide more than 50% of the total electricity consumption through solar energy, including drafting and negotiating seven power purchase agreements (PPAs) with respect to the purchase of power from a 21-megawatt solar project at seven sites.

  • Representing Inclusive Prosperity Capital, Inc., a mission-driven specialty finance organization focusing on clean energy and community development, in multiple projects, including drafting form power purchase agreements (PPAs), EPC agreements and loan documents.

  • Evaluated Massachusetts Solar Smart program on behalf of solar developer seeking to site solar plants on leased roofs.

  • In connection with a $400 million pilot project to establish a competitive market for renewable power in Vietnam, currently leading the U.S. team in developing key form documents, including power purchase agreements (PPAs), interconnection agreements, contracts for differences, wholesale market participation agreements, Memoranda of Understanding (MOUs) for participation in the pilot program, sales agreements, and meter data service agreements.

  • Represented Virgin Islands Water and Power Authority in connection with the purchase of electricity and water through PPAs and interconnection agreements with renewable projects being developed in the US Virgin Islands, including a biofuel cogeneration plant, four large-scale solar projects to be developed by two different developers and offshore wind generation projects with two different developers.
  • Represented the New York Power Authority in connection with preparation of a form PPA to be used by school districts in New York State for K-12 schools; school districts could then enter into PPAs for rooftop, ground mount or canopy solar covering multiple schools in their districts.
  • Represented lender in connection with Princeton Hospital cogeneration project, including negotiating power purchase and energy supply agreements.
  • In connection with representing New Jersey industrial building owner acting as developer of solar rooftop project, drafted all project agreements, including consultants, engineering and purchasing of panels, installation and financing; 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 the Environmental Defense Fund before the New Jersey Board of Public Utilities in PSE&G's Energy Strong case, which involved proposals made by the utility to strengthen its system post-Hurricane 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.

    • Energy Regulatory

  • Represented a general contractor in negotiating a carbon emissions reduction credit contract which will use waste from its lumber processing plant to create biochar, a carbon sink, and then sell the credits. 

  • Represented a real estate development firm as lead counsel in seeking to build solar generation on farmland in New Jersey and sell the power to a municipality under New Jersey’s municipal net metering aggregation statute.

  • Represented global telecommunications company in connection with large data center project involving negotiations of a high power line with one New York utility and connection of line to substation in another utility service territory.

  • Represented Novartis in connection with upgrade of high power distribution line, including negotiations with Jersey Central Power and Light, an operating subsidiary of FirstEnergy.

  • Served as 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).

  • Acted as outside counsel to retail energy marketer, including addressing regulatory requirements for solar demonstration project; developing on-site generation projects; preparing form contracts for energy commodity sales to retail customers; defending litigation related to energy contract disputes, including procurement of fuel in wholesale markets and purchase of retail marketing customer contracts; and counseling related to energy business strategy.

  • Represented commercial and industrial customers in electric and gas deregulation proceedings before New York and New Jersey utility commissions 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 in the design of rates, seeking unbundled rates favorable to client interests and opposing imposition of hourly electricity rates.

  • Represented 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.

  • Represented 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.

  • Represented commercial building owners, hotels and other large customers in disputes with Con Edison involving overcharges and individual tariff-interpretation issues.

Admissions

  • 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

Education

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

Experience

  • Duane Morris LLP
    - Of Counsel, 2012-present
    - Consulting Counsel, 2008-2012
  • Foreht, Last, Landau & Katz
    - Of Counsel, 2002-2008
  • New Jersey Department of the Public Advocate, Division of Rate Counsel
    - Deputy Public Advocate
  • Federal Energy Administration
    - Staff Counsel
  • Mount Sinai Hospital
    - Associate General Counsel

Professional Activities

  • Host Sponsor, Advanced Energy Group New York, 2016-present
  • American Bar Association
    - Member, Section of Public Utility, Communications and Transportation Law, 2010-present
  • 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

  • Listed in The Best Lawyers in America, 2010-2023

  • Listed in Best Lawyers in New York, 2013 and 2016
  • Martindale-Hubbell® Bar Register of Preeminent Women Lawyers
  • Selected as a 2013 and 2014 Top Rated Lawyer in Energy, Environmental, and Land Use Law by American Lawyer Media and Martindale-Hubbell
  • Best Women Lawyers in the Northeast, 2012
  • AV Preeminent® Peer Review Rated by Martindale-Hubbell®

Board Memberships

  • New York Solar Energy Industries Association (NYSEIA)
    - Member, Board of Directors, 2014-2016
  • New York Association of Energy Engineers
    - Board of Directors (first woman elected), 2009-present

Selected Publications

Selected Speaking Engagements

  • Speaker, "Negotiating a Financeable Power Purchase Agreement for Renewable Energy," CARILEC, Webinar, March 16-17, 2021

  • 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