Lessons From FERC Staff Reversal In Footprint Power

This post recently appeared in Law360, available for subscribers here. Anyone practicing in the Federal Energy Regulatory Commission enforcement arena should sit up and take notice of the recent developments in the Footprint case at FERC. The most public step in an enforcement procedure before FERC is the issuance of an order to show cause, or OSC, by the commission. An OSC is FERC’s formal announcement that its Office of Enforcement, or OE, staff has found the respondent to have committed statutory or regulatory violations. The OSC includes a report from OE reciting the facts that support such a conclusion, as well as any recommended civil penalty and disgorgement amount. The OSC invites the respondent to “show cause” why it should not be penalized. This OSC is usually followed by an answer filed by the respondent, which is typically followed by a reply brief from OE. From the inception of the OSC process in 2007, FERC has never found cause for not imposing a…

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