Government Regulation Cases
Ameren – Ratemaking; Commerce Clause; Property Rights
In the Matter of Union Electric Co., Case No. ER-2007-0002 (Missouri Public Service Commission)
We were part of a team representing AmerenUE, the largest electric utility in Missouri, in its first major rate case in 20 years. Our responsibilities include two of the highest “dollar value” issues in the case: the appropriate return on equity for the utility and the treatment of revenue from the utility’s out-of-state, unregulated affiliate, which sells power in the wholesale market. The latter issue implicated a broad range of regulatory and constitutional issues, including the relationship of federal and state regulatory jurisdiction, the protection of contract rights, and the taking of unregulated property.
Government of Ireland – International Law; Law of the Sea; Environmental Law
We have been part of a team representing the Government of Ireland in a matter arising from the operations of the nuclear facility on the United Kingdom’s western coast at Sellafield. That facility has used the Irish Sea as a dumping ground for radioactive waste, and has suffered accidental leaks and other problems indicating a sub-standard safety culture.
NRA Political Victory Fund – Election Law; Separation of Powers
Federal Election Commission v. NRA Political Victory Fund, No. 91-5360 (U.S. Court of Appeals for the District of Columbia Circuit) (opinion reported at 6 F.3d 821 (DC Cir. 1993))
Mr. Cynkar, while at another firm, was part of a team that represented the NRS Political Victory Fund in an enforcement action brought by the Federal Election Commission (FEC). The U.S. Court of Appeals for the District of Columbia Circuit held that the FEC lacked the authority to bring the action because its composition violated the Constitution’s separation of powers. Congress had exceeded its powers by placing the Secretary of the Senate and the Clerk of the House on the FEC as non-voting, ex officio, members. Not only did this result defeat the enforcement action, but it required the FEC to re-promulgate its regulations, which had been issued during the period of its illicit composition.
Yucca Mountain – Environmental Law; Nuclear Regulation
Nuclear Energy Institute, Inc. v. Environmental Protection Agency, No. 01-1258(U.S. Court of Appeals for the District of Columbia Circuit) (one of several opinions published at373 F.3d 1251 (DC Cir. 2004))
We were part of a team representing the State of Nevada in opposition to the proposed Yucca Mountain nuclear waste repository. This representation has already involved several cases in the U.S. Court of Appeals for the District of Columbia Circuit and proceedings before the Nuclear Regulatory Commission (NRC).
Winstar Cases – Regulation of Financial Institutions
United States v. Winstar Corp., No. 95-865(U.S. Supreme Court) (decision reported at 518 U.S. 839 (1996))
Mr. Cynkar, while at another firm, was part of the team that brought, and prosecuted through the Supreme Court, the landmark Winstar case. Federal regulators, in an effort to reduce their insurance liabilities for failing savings and loans during that industry’s financial crisis, had entered into agreements with the Winstar plaintiffs to take over and recapitalize failing thrifts. Subsequent legislation overhauling thrift regulation required federal regulators to breach key elements of these agreements to temporarily forebear enforcing certain regulatory standards. As a result, the thrifts failed and were seized by the regulators. Overcoming various arguments that the federal government could not be held to its agreements in closely regulated industries in light of a congressional change of policy, the Supreme Court held that the federal government can be bound by such agreements and that it had an obligation to indemnify the thrift owners for the damages incurred. Over 100 “Winstar” cases were eventually filed in the U.S. Court of Federal Claims seeking damages on behalf of thrift owners. Mr. Cynkar’s former firm was lead counsel in many of those cases.