Energy Enforcement Update

This week at FERC:

  • Coaltrain’s reply in support of its motion to dismiss FERC’s complaint in district court;
  • Administrative law professors file amicus brief on de novo review in Barclays case;
  • City Power replies to FERC regarding discovery in district court proceeding;
  • FERC to hold second technical workshop on data collection NOPR.

Coaltrain and individuals file replies in support of motions to dismiss FERC complaint.  For Coaltrain, on November 7, we filed the company’s reply in support of its motion to dismiss FERC’s complaint in the U.S. District Court for the Southern District of Ohio.  Replies for the individuals were also filed.

Judge denies amicus brief from law professors on de novo review filed in FERC v Barclays.  On November 7, a group of twelve administrative law professors filed a brief of amici curiae in the Barclays district court litigation, which criticizes FERC’s position on what constitutes de novo review under Section 31(d) of the Federal Power Act.  According to the brief, “Amici have grave concerns about the legal and policy implications of FERC’s apparent view of what constitutes a district court’s ‘de novo review’ of an agency’s civil penalty assessment.”  The professors argue that FERC’s position runs counter to the traditional understanding of court enforcement actions for civil penalties and cannot be squared with the Federal Power Act’s civil penalty assessment mechanism, which gives a defendant the choice of challenging FERC’s penalty assessment in a full trial-type proceeding before either an administrative law judge or a federal district court.  In addition, the professors claim that FERC’s position raises serious due process and policy concerns, especially in the context of the Barclays case where FERC seeks to have the court summarily affirm what FERC has described as “the largest civil penalty imposed since the passage of the Energy Policy of Act of 2005.”

On November 17, Judge Nunley issued an order denying the amicus motion.  According to order, “The parties have already provided the Court with sophisticated and thorough briefing on the pertinent issues.  The Court does not believe that further briefing by the proposed amici would be helpful to resolution of the motion.”  Separately, Judge Nunley ordered a hearing on FERC’s pending motion to affirm civil penalties to be held on January 26.

City Power files reply to FERC on discovery in district court.  On November 7, City Power filed a reply in support of its Rule 56(d) motion for discovery in the U.S. District Court for the District of Columbia.  City Power requests that the court deny or hold in abeyance FERC’s motion for summary judgment until City Power has an opportunity to conduct discovery pursuant to Rule 26 of the Federal Rules of Civil Procedure.  City Power explains that it has not yet had a meaningful opportunity to take discovery in the case, so it has never had a full and fair opportunity to obtain the evidence necessary for opposing FERC’s request for summary judgment on both the market manipulation claim and false statements claims.  City Power rejects FERC’s suggestion that City Power has all of the information needed to defend the case because FERC took some discovery from PJM and gave it to City Power.  According to City Power, the fundamental problem with that argument is that City Power only got what FERC chose to request, and those requests were very narrowly tailored.

FERC to hold second technical workshop on new data collection NOPR.  FERC will hold a second technical workshop on December 7 regarding its proposed rulemaking on data collection for analytics and surveillance and market-based rate purposes in Docket No. RM16-17.  This second technical workshop will focus on the submittal process, and FERC Staff will present case studies based on existing entities expected to submit data under the rule.  The case studies will include a discussion of: (1) the steps the user would follow to submit data to the relational database; (2) the process of data review and validation once the data is received by FERC; and (3) the notifications a user would receive as the data makes its way through the FERC data validation and receipt process.  FERC Staff will also provide a high-level update on proposed technical refinements to the data dictionary based on the prior workshop and additional outreach.  Those who would like to participate in the discussion by telephone should send a request for a telephone line to by December 2.

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