By Michael Brooks
WASHINGTON — FERC said last week it is streamlining its rehearing orders and creating a dedicated legal team within the Office of General Counsel to handle them.
The group, housed in OGC’s Solicitor’s Office, will produce shorter orders focusing on new arguments raised by petitioners, rather than chronicling the history of the case and reiterating the commission’s positions on arguments addressed in the original rulings.
“We are hopeful that the creation of the rehearings group, coupled with the more streamlined approach to rehearing orders, will allow the commission to more efficiently process requests for rehearing, which in turn will further the public interest,” Deputy Solicitor Robert Kennedy, who will head the new unit, said in a presentation at the commission’s open meeting.
Previously, requests for rehearing were assigned to lawyers who drafted the original orders and who also handle other matters, some with legal deadlines, Kennedy said. The new group, consisting of attorneys not involved in the original orders, will partner with subject matter experts while providing a “fresh set of eyes” on its decisions, Kennedy said.
“We anticipate that the primary role of the rehearing group will be to make sure that the commission has … fulfilled its legal obligation to articulate the connection between the facts found and the choice made, and to respond meaningfully to legitimate objections raised by the parties before it,” Kennedy said.
Kennedy said the new group doesn’t have any metrics regarding the backlog of rehearing requests and is still getting a sense of the workload and how much staffing will be needed. Chairman Norman Bay told reporters the group had just been staffed up the week prior.
“Ultimately… our metric will be how we do in the Court of Appeals,” Kennedy said.
Due Process
Bay, a former federal prosecutor, pointed to the appeals process in the courts as a model for the new process. “When there’s a petition for rehearing, virtually every single court in the country decides on a summary basis unless there’s some new claim that has been raised,” he told reporters. “And that certainly comports with due process. The commission, though, historically has not done this.”
Even if the arguments raised in a rehearing request are the same as in the original filing, FERC has written a “fulsome” order responding to those claims. “I don’t know how efficient that is from an administrative perspective,” he said.
Bay wants FERC to focus on anything different that’s been raised in a rehearing request. A claim can’t be entirely new, as new evidence or information cannot be introduced in a rehearing request. “But if there’s some variation of an argument that’s already been raised, that truly has not been considered by the commission, then we ought to be focusing on that, as opposed to reiterating what might have been said earlier,” Bay said.
The chairman said that the change was not prompted by any specific case or cases.
Complaints in federal court about the amount of time FERC takes in issuing orders on rehearing requests have never been successful, according to FERC.
“The commission always strives to examine what it’s doing and, when appropriate, looks to build upon what it’s doing and to improve what it’s doing,” Bay said. “And I think that this effort reflects this approach. We already do a good job, in my view, with respect to rehearings.”
“I certainly expect that parties before the commission will appreciate the effort to get rehearing orders out more quickly,” Commissioner Cheryl LaFleur said. “I’m certainly going to be paying particular attention to these orders especially in the first few months to ensure we properly balance clarity and efficiency.”
A New Look
Kennedy presented the first two rehearing orders under the new process: one denying rehearing of FERC’s decision to suspend for five months GenOn Energy Management’s proposed reactive power tariffs (ER15-2571, et al.) and another denying rehearing of its decision to prohibit Alliance Pipeline from removing authorized overrun service from its rate schedule (RP15-1022).
As promised, the orders are much more concise than the usual rehearing order, omitting lengthy sections that explain the full procedural history of the case, including all the protests and comments filed by intervening parties. The Alliance order is a mere one page, simply reading: “Alliance’s request raises no matter warranting any modification of [FERC’s original November 2015 order]. Nor does it warrant any further comment on rehearing. Accordingly, the request for rehearing is denied.”
The GenOn order, while longer, is still a brief six pages. “The format, rather than the substance, of the draft order is notable,” Kennedy told the commission.
FERC accepted GenOn’s revenue requirements for reactive power service from several of its power plants but suspended them until March 31. The company requested rehearing based on this provision, as well as the commission’s decision to refer the matter to its Office of Enforcement.
The order summarizes this background in two paragraphs before coming to the commission’s determination, which focuses exclusively on these two issues. The commission explained its methodology for setting the five-month suspension period, as well as citing the broad discretion afforded to it by the courts to determine these periods. It also said that it referred the request to Enforcement because it found the company may have continued to receive payments for reactive service from plants no longer capable of providing it.
The order concludes bluntly, “As to the request for clarification, we see no need to further clarify our underlying order beyond what we have stated herein.”
“We’re going back and looking at the original drivers of the project,” he said. “We had put it in RTEP in 2008-09. Clearly, there have been a number of changes. We’re looking back to see if the reliability driver is still there.”
The Solar Foundation, a D.C. solar power advocacy nonprofit, has released its annual Solar Jobs Census for 2015. The report details the number of people working in the solar industry in each state. Overall, the workforce experienced rapid growth over the past year, increasing by 20.2% and at 12 times the overall U.S. economy, according to the report. And the organization expects it to continue to grow.
Northern Indiana Public Service Co.’s requested 82% increase in its monthly fixed-rate charge has drawn flak from consumer advocates and solar energy supporters in the state. Clean energy advocates say the increase is a punitive measure on the state’s solar power sources, while NIPSCO says it simply wants ratepayers to fund their fair share of grid upkeep.
The Utilities Board conducted hearings last week on the proposed $3.8 billion Dakota Access pipeline project, which would deliver crude oil from North Dakota to terminals in Illinois. Regulators in North Dakota, Illinois and South Dakota have already approved the 1,168-mile pipeline.
Two incentives for solar generation have reached their limit for participants, putting the brakes on the incipient solar boom in the state.
Four state senators and 64 state representatives want to intervene in the Northern Pass transmission project now before the state’s Site Evaluation Committee.
A bill aimed to breathe new life into a proposed offshore Fishermen’s Energy wind project passed the Senate by a vote of 23-11 on Thursday. Gov. Chris Christie vetoed a similar bill last year that called for approval of the 24-MW wind project.
The Public Regulation Commission voted 5-0 to open a new regulatory case to examine whether large electricity customers are receiving undue fuel savings as a result of Public Service Company of New Mexico’s investments in renewable energy.
The Department of Environmental Quality has fined Duke Energy $6.6 million for the 2014 Dan River spill, in which 39,000 tons of ash and 27 million gallons of water flowed unchecked from a failed pipe under a 27-acre coal ash pond.
The Public Service Commission said it approved almost $2.1 billion worth of siting permits for energy-related projects last year. That number is slightly down from more than $2.7 billion in 2014, but still significantly higher than the $1 billion approved in 2013.
Solar industry supporters in the state say Oklahoma Gas & Electric’s proposed demand charge for customers with rooftop solar panels would harm the nascent industry.
The Public Utility Commission accepted a settlement that directs Pennsylvania Gas & Electric to pay $6.8 million in customer refunds, a $25,000 civil penalty and a $100,000 contribution to a customer Hardship Fund as a result of alleged deceptive business practices after the Polar Vortex in 2014.
