FERC Chairman Joseph Kelliher last week said that energy attorneys would be well advised to quickly pick up and read a rule FERC moved to adopt this week. The rule requires that issues raised in pleadings and requests for rehearing be set forth in a separate section entitled "Statement of Issues" listing each issue presented in a separate paragraph and referencing representative precedent on which a filer is relying.
The energy bar should "read this order," said Kelliher at FERC's Sept. 15 open meeting. "Otherwise, issues will be deemed waived, so it's probably something you should read."
Because the rule is an instant final rule effective immediately upon its publication, "I would encourage the energy bar to read it because pleadings will need to conform to this requirement very soon," he added.
Kelliher said that this is a "small but significant rulemaking. In this rule, the Commission clarifies that parties need to clearly identify all issues they are raising before the Commission in their pleadings." In the past, "sometimes we've had to deal with arguments in the courts that an argument referenced in a footnote was raised by a party. This order is intended to prevent oblique references to issues in passing that then a party could then seek rehearing on."
The purpose of the rule "is to ensure that the Commission can identify and address all issues raised by the parties. It's also intended to ensure that they can't obscure issues in their pleadings," Kelliher noted. The rule is "particularly important" for rehearing requests "and the rule will improve our ability to respond to issues raised by parties because they will be more clearly presented."
Issues not identified in the "Statement of Issues" section "will be deemed waived," Kelliher emphasized.
"I believe that this rule is a terrific housekeeping rule that will eliminate court appeals and eliminate extra Commission proceedings that result from those court appeals," noted FERC Commissioner Suedeen Kelly. When Kelly and Kelliher "first came to FERC, we talked about how surprised we were that a number of remands of decisions that came back to FERC from the courts of appeal, came back to us because we had not addressed an issue."
It is not the intent of the Commission "to not address an issue. Rather, it is because we didn't understand that there was an issue or perhaps inadvertence."
"I didn't realize there would actually be debates about whether a passing reference in a footnote constitutes raising an issue before the Commission," Kelliher added. "And this will save us the trouble of that debate in the future."
FERC staff noted that the new rule will not add any substantive requirements over what is already required by Commission Rules 203 and 713. However, it modifies the format of the required information.
Commission rule 203 already requires that pleadings include the position taken by a participant and the basis in fact and law for such a position. Rule 713 requires that requests for rehearing conform to the requirements for pleadings found in rule 203.
Despite these requirements, FERC has found many instances where issues are not clearly presented. The purpose of the rule is to revise the pleading and request for rehearing formats to help ensure clear issue identification.
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