Adventures in FERCland

For the last three years, Keryn and Ali have been fighting for more than $5 million of our money that AEP/FE have taken from us to cover their costs for PATH propaganda.  The power companies tried to call it “public education,” but there was it was straight marketing propaganda that presented only a pro-PATH message.  The two West Virginians filed a formal challenge at FERC to stop these costs from being added to our electric bills. (In fact, AEP/FE have already collected this money.  If Keryn and Ali win, the money will be refunded to us.)

Now that the PATH project is gone, AEP/FE have also applied to FERC to get $121 million from PJM rate payers in an attempt to recover all their unrecovered costs that they spent on their dead PATH.  More than thirty intervenors, including state PSCs, other electric companies and individuals from WV and MD are fighting AEP/FE in this case.  In November, FERC issued an order stating that there was enough dispute over the facts in this case to set the abandonment cost case for a full hearing, over the objections of AEP/FE, who just wanted their money without a hearing.

Before FERC issued its order, AEP/FE filed a pleading in the case asking for FERC to consolidate the abandonment case with the three year old formal complaint case that Keryn and Ali had first brought in 2010.  If you read the November FERC order, you will see a discussion of this issue, as well as an account of a number of objections from intervenors, including me.  The formal complaint case is almost finished.  The abandonment case hasn’t really even started.  It makes no sense to consolidate the two cases, because they are about two entirely different kinds of costs and FERC processes.  In its November order, FERC avoided a decision on consolidation and passed it off to the Chief Administrative Law Judge.

Since the November FERC ruling on consolidation, AEP/FE have made a motion for consolidation to the Chief ALJ.  Also, since the November order in the abandonment case, settlement talks have broken down, and the administrative judge that was managing settlement talks in Keryn’s and Ali’s formal complaint case has ordered the case back to FERC for a final decision.  This is the last stage in the formal complaint case, providing even less reason for this case to be combined with the abandonment case.

Keryn and Ali had also filed a motion with the Chief Administrative Law Judge to allow them to consult an attorney during their settlement negotiations.  AEP/FE objected, claiming that if Keryn and Ali consulted an attorney in the case, FERC rules said they had to give up representing themselves and have the attorney represent them instead.  Keryn and Ali had asked for permission to consult an attorney, because settlement negotiations are confidential and they needed FERC approval to share this information with an attorney.  The FERC Chief ALJ sided with the power companies and refused to allow Keryn and Ali to consult a lawyer during negotiations.

Keryn and Ali have already proven more than a match for AEP/FE’s lawyers, without any additional help.  In hundreds of courts across the US, judges have allowed citizens to “unbundle” lawyers’ services, allowing lawyers to consult with people without taking over full legal representation.  Federal and state courts have ruled that citizens who represent themselves in cases are entitled to legal help as a fundamental right of due process.  Apparently FERC does not subscribe to this established legal doctrine.  And Keryn and Ali are not rich power companies that can immediately appeal this ruling to federal court.

Of course, it is this kind of asymmetrical and unfair environment which always gives large corporations huge advantages over average citizens defending their rights, and the rights of their fellow citizens.  So while Keryn and Ali, over AEP/FE objections, got FERC to admit that rate payers have a right to challenge bogus rate increases from dead power line projects, FERC requires citizens to step into the ring with one hand tied behind their backs.  But this is nothing new in the PATH case.

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