This is a riot. FERC issued this order today. As you know from my November posts, AEP/FE didn’t like West Virginians Keryn Newman and Ali Haverty challenging their recovery of PATH costs from us. Power company lawyers thought that the best way to get Keryn and Ali out of their hair was to get FERC to change their rules to keep electric consumers out of these FERC cases for good.
The situation reminded me of when I was a small child playing a game with some friends. The team that was losing would always want to change the rules so they could win. That, in a nutshell was what AEP/FE were trying to do to Keryn and Ali.
Today’s FERC order allowed AEP/FE’s requested superficial language change, but the Commissioners made it crystal clear in their Order that simply changing the words in their protocols would have no impact on their longstanding policy of allowing retail electric consumers to intervene in these kinds of FERC cases.
Here’s how the FERC Commissioners put it:
As discussed below, we accept the proposed tariff revision. The tariff language as proposed is consistent with tariff language that the Commission has previously required in formula rate protocols such as the PATH Companies’ Protocols. As we have in other cases, we find reasonable that the same parties with rights to file challenges to PATH’s rates under section 206 should have the rights to challenge through the Protocols.
The PATH Companies contend that its existing language in the Protocols is too broad and “may be more broadly interpreted by some persons to apply to themselves as retail ratepayers or as individuals opposed to the PATH Project” and that “the Commission’s exercise of its jurisdiction over the PATH Project does not directly affect these interests.” Other parties protest both this filing and the PATH Companies’ interpretation of what the effect of the filing might be on particular interests.
While we accept the proposed tariff revision to the Protocol’s definition of Interested Party, we find that the proposed tariff revision does not affect and we make no determination of any person’s (or entity) rights under our regulations and precedents to participate in a review of formula rate filings. As we note above, our regulations recognize that consumers that are not direct wholesale customers may have a sufficient direct interest in proceedings that affects their retail rates, but a determination of the standing of those seeking to challenge such formula rate filings will need to be made on a case-by-case basis. [emphasis mine]
While FERC granted AEP/FE’s request to have the phrase “other interested parties” dropped from FERC’s rules (referred to by FERC as the “tariff” in the quote above), this order makes it clear that this in no way affects the rights of electric consumers to challenge power company cost recovery in these kinds of cases.
As they tried to do to intervenors in the WV PSC PATH case, AEP/FE’s lawyers tried to claim that retail rate payers’ interests were already represented by state Consumer Advocates and that individual rate payers should be shut out of the regulatory process on that basis. As Keryn and Ali pointed out in this case, not a single consumer advocate in PJM’s region even reviewed the costs that AEP/FE were trying to recover in 2009 and 2010. This point was noted as well by the FERC Commissioners in their Order.
The Commissioners threw out as inapplicable every case that AEP/FE’s lawyers cited in support of their position. The Commissioners did have the good grace not to mention the PSEG case that AEP/FE’s lawyers had cited that actually supported Keryn and Ali’s position. This complete screw up was duly noted in all of the state regulators and others who filed briefs in support of Keryn and Ali.
AEP/FE’s legal team came out of this skirmish thoroughly humiliated, if they have any sense of shame left at this point.