Letter to the Editor
David E. Pomper, a partner at Spiegel & McDiarmid, LLP, has practiced energy law for almost three decades. He chiefly represents ratepayer constituencies – transmission-dependent utilities, state commissions, and official consumer advocates. He presented oral argument to the D.C. Circuit, and secured remands, in two of the leading FERC electric transmission ROE cases of recent years: Emera Maine v. FERC (concerning ROEs in New England) and Ky. PSC v. FERC (concerning ROEs in the Midwest, now Midcontinent, ISO.)
An April 2019 opinion article by Carmen Gentile urges FERC to "Put the Kibosh on Pancaking Section 206 Complaints." According to the Online Etymology Dictionary, "kibosh" may derive from the Turkish word, bosh - meaning empty talk, nonsense. Because Mr. Gentile and I have a warmly collegial relationship spanning three decades, I won't apply those aspersions to his article. But I will say that it's legally erroneous.
The refund provisions of Federal Power Act Section 206 were enacted through the 1988 Regulatory Fairness Act. A few years later, FERC found it statutorily appropriate to investigate Allegheny Generating's equity return, "despite the fact that [it was] ... already investigating its equity return in another proceeding." Consumer Advocate Div'n v. Allegheny Generating Co., 67 FERC 61,288, at 61,200, on reh'g, 68 FERC 61,207 (1994) (Allegheny GenCo).
FERC reasoned that "The record in that proceeding is based, inter alia, on market data which ended early in 1992. This complaint relies on more recent information. In effect, the joint complainants bring a new claim, rather than reiterate their previous allegations. We thus find no effort to evade the strictures of the RFA's-month refund protection period."