Representing Yourself in the PATH Case? Here’s Some Help
If you are representing yourself in the PATH PSC case, you told the PSC in your petition to intervene that you had legal interests you wanted to protect. The PSC has delayed the case again for the fourth time on Jan. 7, 2011. Many of my previous remarks about the case’s procedural schedule are now out of date. I try to keep this page up to date, but may other references to the schedule on this blog may just be wrong. I apologize for the horrendous job the PSC has done managing the PATH case, and my inability to find all the dates that need changed.
Note: This post used to contain the case schedule originally set by the WV PSC at the beginning of the PATH case. The PSC revised that schedule when the case was delayed in
early December 2009, July2010, September 2010 and again on January 7, 2011. Here is the most recent revised schedule.
According to the January 7, 2011 revision, the PSC set the following deadlines:
- Applicants file supplemental testimony on issue of electrical need and any other issues requiring supplementation. Noon, Thursday, March 31, 2011
- Deadline for propounding discovery on supplemental testimony due March 31, 2011. Noon, Friday, July 22, 2011
- Staffs and Intervenors’ prepared direct testimony and rebuttal to the direct testimony of Applicants. Noon, Thursday, August 11, 2011
- Deadline for propounding discovery in response to testimony due August 11, 2011. Noon, Wednesday, August 24, 2011
- Applicants’ rebuttal testimony to the direct testimony for Staff and Intervenors, and Staff and Intervenor rebuttal testimony to the direct testimony of one another. Noon, Friday, September 9, 2011
- Deadline for propounding discovery in response to the rebuttal testimony due September 9, 2011. Noon, Wednesday, September 21, 2011
- Written opening statements. Noon, Wednesday, October 5, 2011
- Evidentiary hearing begins. Noon, Tuesday, October 11, 2011
- Evidentiary hearing ends. Noon, Wednesday, October 26, 2011
- Initial briefs and proposed orders. Noon, Tuesday, November 22, 2011
- Reply briefs. Noon, Thursday, December 8, 2011
- Deadline for Commission decision. Thursday, February 9, 2012
Many pro se intervenors have been confused about their rights and responsibilities in the PATH PSC case. In particular, they were frustrated that they weren’t allowed to present testimony at the PSC’s public hearings. This frustration is misplaced.
If you don’t feel confident proceeding on your own, educate yourself about the PSC process by contacting PSC staff attorneys or your own lawyer.
Pro se intervenors are full parties to the PATH case. We have far more rights to discover evidence and make our cases than do people in the general public who could testify at public hearings.
If you are representing yourself, by this time you should have done the following:
- Decided on the outline of the case that you are presenting based on the issues you identified as your legal interests in your petition to intervene and the issues raised by the power companies in their application for Certificate of Need
- Familiarized yourself with the power companies’ PATH application, particularly the witness testimony that you are contesting
- Submitted interrogatories and requests for documents to the power companies to clarify and explain statements their witnesses made in the application General discovery in the case is now closed. Once the case starts up again after AEP/Allegheny present their supplemental information in March 2011, intervenors will be able to submit new discovery, on need issues only, until July 22, 2011.
- Have identified and contacted witnesses you will be using to provide testimony to support your case. Their written testimony is due on August 11, 2011.
- Have decided if you are going to testify as a witness to provide the factual basis for your case. Your written testimony is also due on August 11, 2011.
If you haven’t started on any of these things yet, you need to get going.
Use Other Intervenors’ Interrogatories
If you didn’t get your own discovery questions in by October 19, 2009, that doesn’t matter. All the power companies’ responses to other intervenors’ interrogatories will be on the PSC Web site, and in your email inbox. All of these other intervenors have asked the good questions anyway. You will have to sift through the power company responses to find what you are looking for, but it is there. All responses to interrogatories should include a restatement of the original questions, so you will not have to go back and find the original discovery request to find the questions.
After the power companies submit new revisions to their original application, you will also have a new opportunity to serve them with your discovery questions concerning the need for PATH.
Some Helpful Definitions
Here are some familiar definitions of some of the words used by the PSC in its list of deadlines:
- Discovery – Generally discovery consists of questions designed to clarify or expand on an opposing parties’ testimony and/or requests for documents upon which an opposing parties’ testimony is based. Discovery requests are filed in written form by one party on another party. Unless the discovery requests are considered unreasonable by the presiding officials, in this case the PSC, all parties must answer discovery truthfully and fully by specific deadlines.
- Direct testimony - testimony first provided by a party to provide facts used to support that party’s case
- Rebuttal testimony – testimony submitted by opposing parties to provide facts that contradict facts presented by other parties in the case. If another party files rebuttal testimony to rebut your testimony, the PSC process allows you to submit testimony to respond to that rebuttal.
Submit Your Evidence
Don’t worry if you missed the Oct. 19 deadline to file your first interrogatories about the power companies’ application. You will still be able to file discovery about their subsequent testimony. The deadlines are listed above.
If you do not submit evidence of your own to support your case against PATH, the PSC will consider any case you present as unsupported by facts and will simply disregard anything you say. Once you are in the process as an intervenor, you must follow the rules to be effective.
If the basic point of your case is that the PATH certificate of need should be denied, you will have to provide a case that clearly rebuts the power companies’ case for the power line. Your case must be supported by facts that you or other intervenors have established in the case, and your case must be based on specific legal interests of yours that PATH impacts.
If you don’t want to hire expert witnesses, you can testify on your own behalf to present the facts of your situation. You can only testify about what you know in your direct experience. Unless you have specific professional qualifications and experience, any testimony you present about medical impacts or engineering will be disregarded by the PSC.
If you are going to testify on your own behalf, look at the power companies’ expert witness testimony for a format to use. You will have to go through the awkward process of asking yourself questions, but that is the preferred format. It isn’t hard once you get used to it. Be sure to state your name and address and a summary of your relationship to the case at the beginning of your written testimony.
Your Opening Statement
Note that the deadline for your opening statement for the Evidentiary Hearing is October 5, 2011. Your opening statement should be the basic statement of the case you intend to prove and a quick summary of the evidence you have presented to support it. The statement should include a statement of what you want the PSC to do with the PATH application. The written opening statement is limited to four double-spaced pages.