The Federal Energy Regulatory Commission's practices involving ex parte (off-the-record) communications are "fully consistent" with existing law, and in fact are "more stringent" than the requirements of the Administrative Procedure Act (APA), said a noted legal expert Monday.
The Commission requested a review of its ex parte practices in response to allegations in recent cases that pre-filing meetings between applicants and FERC commissioners may violate the APA rules. The "most prominent" allegations have come from Public Citizen, a public watchdog group that raised the issue in several merger cases before the agency, said FERC spokesman Bryan Lee. A pre-filing meeting is "almost like a courtesy visit, where an applicant gives the Commission the heads up about what they are about to file," he noted.
"There is nothing in the APA, the Constitution or FERC's own regulations that preclude such [pre-filing] meetings" between applicants and commissioners, wrote Richard J. Pierce Jr., a professor of law at George Washington University and author of more than a hundred articles on administrative law and government regulation.
The APA prohibits ex parte communications in two types of proceedings: formal adjudications and formal rulemakings, he said. These are proceedings that Congress, by statute, has required to be conducted in formal, trial-type formats. The rules governing off-the-record communications are designed to prevent a party in a case from receiving preferential treatment.
The APA law, however, does not extend the ex parte ban to informal adjudications or informal rulemakings, which are the types of proceedings conducted by FERC, Pierce noted. Therefore, the ex parte provisions of the APA do not apply to FERC. "It would be no more appropriate to ban agency decision makers from engaging in ex parte communications in informal rulemakings than to ban members of Congress from engaging in off-the-record conversations with constituents who are interested in a legislative proposal before Congress."
He also said that the odds of ex parte communications at FERC running afoul of the Constitution would be rare. "I am aware of only one case in which a court relied on due process to support a holding that an agency engaged in illegal ex parte communications in an informal rulemaking," Pierce noted. In 1959, the U.S. Court of Appeals for the District of Columbia Circuit held that the Federal Communications Commission violated the law when commissioners met with a winning broadcast license applicant and accepted Christmas turkeys from the applicant during the proceeding.
While the APA's provision restricting ex parte communications does not apply to FERC and a constitutional limit would arise only in rare cases, "FERC has adopted regulations regarding ex parte communications that go beyond what is required by the APA or the Constitution," Pierce said.
FERC prohibits ex parte communications in "all contested on-the-record proceedings." This is "any proceeding before the Commission to which there is a right to intervene and in which an intervenor disputes any material issue; any proceeding initiated pursuant to rule 206 by the filing of a complaint with the Commission; or any proceeding initiated by the Commission on its own motion or in response to a filing." A number of proceedings at the agency are excluded from this ban, including pre-filing meetings.
"As these regulations indicate, FERC's ban on ex parte communications does not apply to pre-filing meetings. FERC, therefore, allows informal communications to occur prior to the time a filing is made and disputed by an intervenor on a material issue. There is...nothing unlawful about this practice. Congress did not require that FERC proceedings resemble judicial trials," where ex parte communications are banned, Pierce said.
Intelligence Press Inc. All rights reserved. The preceding news report
may not be republished or redistributed, in whole or in part, in any
form, without prior written consent of Intelligence Press, Inc.