WV’s Keryn and Ali No Longer Alone at FERC

Despite the fact that no state paid “consumer advocates” are challenging PATH’s continued picking of rate payers’ pockets, a number of organizations that stood up to PATH in the past have now filed a brief in support of Keryn Newman and Allison Haverty at FERC.

Here is a link to the brief filed by the Sierra Club, Earthjustice, the Piedmont Environmental Council and the NRDC’s FERC Project in support of Keryn and Ali.

AEP/FirstEnergy don’t want citizens finding out that they are continuing to charge us for their zombie PATH project.  The power companies also don’t want us to find out what kinds of illegitimate and illegal costs they are trying to cram into the PATH cost recovery case at FERC.

The environmental organizations’ brief provides detailed and well reasoned responses to AEP/FirstEnergy’s attempt to shut down Keryn’s and Ali’s Formal Challenge.  Here are some gems:

PATH’s assertion that only state PUCs or consumer advocate offices may represent the ratepayers’ interest is baseless. The sole case cited by PATH to support its position is inapposite, and, if anything, supports the common-sense notion that ratepayers have a legitimate interest in proceedings where rates are at issue.4 It is sufficient for standing that, as ratepayers within the PJM service territory, the citizens will undoubtedly pay more for their electricity as a result of any unjustified rate recovery granted to PATH. See Formal Challenge at 3, 52. PATH argues that the citizens’ financial interest in the amount of their own utility bills is an “indirect, remote” interest that the Commission should not recognize. Mot. to Dismiss at 4. In fact, it is hard to see how this interest could be any more direct, especially given that no consumer advocate has stepped in to plead the citizens’ case. If the Commission dismisses the citizens’ challenge on grounds that they have not demonstrated a direct interest based on their own exposure to higher electricity bills, that precedent could in the future exclude not only individual ratepayers but any industrial ratepayer, trade association, consumer advocate or other public interest organization that seeks to vindicate its own or the public’s interest before the Commission. This could occur even where no other representative advocate is participating. The Commission should not set such a broad and unwarranted precedent.


PATH’s final argument is that, despite having uncovered more than $15,000 worth of errors to date in the 2010 Actual Transmission Revenue Requirement that have been admitted by PATH, and disputing an additional $3.4 million of the 2009 Actual Requirement, the citizens should be denied an opportunity to participate in a challenge under the Protocols because it is costly for PATH, and therefore the ratepayers, to respond to their discovery requests.  This absurd argument must fail. First, it assumes that PATH’s legal fees for the losing defense of its inconsistent,  inexplicable, or undocumented costs should be passed on to the ratepayers as “prudent” expenditures. Further, it ignores the purpose of the protocols’ challenge procedure, which precisely to allow the opportunity to challenge PATH’s claimed costs. There is no threshold
error amount that the citizens must reveal in order to justify their participation in proceedings.

Finally, PATH argues that citizens’ challenge should be dismissed in light of their allegedly burdensome discovery requests. However, PATH is free to object to discovery requests, as it has done regularly in these proceedings. Issues relating to discovery can and should be resolved in the context of motion practice as opposed to a dismissaL In any case.
citizens are making proper use of the discovery process and are likely to uncover many more charges that must be refunded, especially if their Motions to Compel are granted.

Three of the organizations, the Sierra Club, Earthjustice and our great East Virginia friends at the PEC, who filed this brief were West Virginians’ steadfast allies in the fight against PATH.  It was great to see NRDC’s FERC Project join in supporting rate payers’ rights to do the work that our state “consumer advocates” should be doing.

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