OAL

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Participation and Intervention before the FERC
October 2007
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Outline

• How Does FERC Regulate
• Company specific
• Industry wide
• Participation in the Process
• Intervention
• Protests
• Comments
• Recent Developments

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How Does FERC Regulate?

• Company Specific Decisions
• Applications (rate increase, change in a term or
  condition of a contract, etc.) or complaints
  filed by utilities, customers, project sponsors,
  interested parties or state commissions
• Industry-wide Decisions
• Notice of Inquiry (NOI)
• Notice of Proposed Rulemaking (NOPR)
• Final Rule or Policy Statement

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Company Specific Decisions

• Application or complaint filed with the
  Commission
• Filing is publicly noticed
• Comments and Interventions are received and
  considered
• Staff analysis and recommendation to the
  Commission (tight deadlines)

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Company Specific Decisions (cont)

• Commission options
• Decide merits of case without further procedures
• Hold trial-type hearing before an Administrative
  Law Judge
• Hold a paper hearing
• Hold a technical conference
• Try a form of ADR
• Mediation, Settlement Judge, DRS, Mini Trial,
  Other
• Minor matters can be delegated to a staff Office
  Director or to the Chief Accountant for decision
• Commission issues its order

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Getting it set for Hearing

• Commission may decide to set the application or
  the complaint for a formal on the record
  hearing.
• Usually because it involves contested issues of
  material fact or factually intensive disputed
  issues not easily decided by a paper hearing
  particularly where the protests are intense!

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But, remember.

• Commission must set matter for hearing
• You have a right to be heard but not necessarily
  a right to an on the record (trial-type)
  hearing
• You can ask for an on the record hearing
• You should state why such a hearing is necessary
  - ie. need for cross examination, factually
  intensive issue, subpoenas required, ADR failed,
  etc.

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General Filing Requirements

• 385.2004 (18 CFR 385.2004) requires an original
  and 14 copies for
• Motions
• Protests
• Comments
• Interventions
• Statements of Position

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E-Filing

• 385.2001(a) (iii) (18 CFR 385.2004) permits
  (encourages) e-filing of
• Motions
• Protests
• Comments
• Interventions
• Statements of Position
• See FERC Order No. 619 and Rule 2003(c

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Protest or Intervention?

• Protest
• Rule 208, really 211
• Comments received to determine action by
  Commission
• Not a party
• Protest not part of the record if set for hearing

• Intervention
• Rule 214
• If timely and not objected to, becomes a party
• Intervenor is a party and the intervention
  becomes part of the record

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Motion to Intervene

• An entity which files a timely, unopposed motion
  to intervene, automatically becomes a party to
  the proceeding (Rule 214 c)
• An entity which files an untimely motion to
  intervene must show good cause why the time
  limitation should be waived (Rule 214(b) 3)

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Late Motions to Intervene Rule 214 (d)

• Was there good cause for failing to file within
  the time prescribed?
• How disruptive to the proceeding will the grant
  of the late intervention be?
• Is the movants interest addressed by other
  parties?
• What is the prejudice to or additional burden
  upon the existing parties?
• Does the motion conform to the requirements of
  Rule 214(b)?

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Contents of a Motion to Intervene - Rule 214 (b)

• Must state the position of the movant and the
  basis in law and fact for that position
• Must state the movants interest in the
  proceeding
• Must show movant has or represents an interest
  which may be directly affected by the outcome of
  the proceeding
• Must show movants participation is in the public
  interest

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Notice of Intervention Rule 214 (a)

• Secretary of Energy
• Any State Commission
• The Advisory Council on Historic Preservation
• Department of Commerce
• Department of Agriculture
• Department of Interior
• Any state fish and wildlife, water quality
  certification, or water rights agency, or
• Indian tribe with authority to issue a water
  quality certification

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Recent Developments

• In American Electric Power Services Corp., Docket
  No. QM07-4-000 the Commission spoke to
  participation by membership organizations
• Possible precedential effect of a Commission
  determination normally is not, by itself, a basis
  for intervention
• Membership organizations must show they have a
  member affected by the determination
• Membership organizations must raise factual and
  legal arguments specific to the individual
  proceeding

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Thank you for your attention !

• William J. Froehlich, Esq.
• Special Counsel, Office of Enforcement
• Federal Energy Regulatory Commission
• 888 First Street, NE
• Washington, DC 20426
• [phone] Phone
• [phone] FAX
• william.froehlich_at_ferc.gov

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Appendixes

• Copy of 18 CFR 385.214
• Guide to e-filing
• Copy of American Electric Power Order Granting
  Application to Terminate Purchase Obligation
  120 FERC 61,052 (2007)
• See paragraphs 9 through 12