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- Title
THE FERC ENFORCEMENT PROCESS: TIME FOR STRUCTURAL DUE PROCESS AND SUBSTANTIVE REFORMS.
- Authors
Scherman, William S.; Johnson, Brandon C.; Fleischer, Jason J.
- Abstract
In 2008 the Commission issued its Revised Policy Statement on Enforcement to address concerns that practitioners and the regulated community had about the Commission's enforcement process. The Commission promised to "ensur[e] the fairness of [the] investigatory process from the commencement of an investigation until the time it is completed, [and] . . . to ensure that the subjects of an investigation receive due process both in perception and reality."1 The Commission has taken several steps to deliver on those promises. Unfortunately, in practice, many of those promises have not been kept. And, while most members of the regulated community and practitioners within the energy bar are reluctant to say so publicly, there is a wide-spread view that the FERC enforcement process has become lop-sided and unfair. In 2010 we suggested some modest reforms to address key due process concerns exposed by the Commission's enforcement proceedings in Amaranth Advisors, Energy Transfer Partners, and Oasis Pipeline. It was our hope then that by adopting those reforms the Commission would be able to further its stated goals of ensuring fairness and due process. But, even though the Commission formally adopted some of our suggestions and has also adopted other changes to its processes, the Commission's implementation of the enforcement process has resulted in more serious fundamental due process and substantive concerns. This article highlights those concerns and proposes common sense reforms that, if implemented, should help alleviate potential harm to the markets regulated by the FERC and ensure that the FERC's promises of fairness and due process are realized in both perception and reality.
- Subjects
UNITED States; UNITED States. Federal Energy Regulatory Commission; DUE process of law; UNITED States. Securities &; Exchange Commission; ENERGY Transfer Operating LP; AMARANTH Advisors LLC; GOVERNMENT regulation
- Publication
Energy Law Journal, 2014, Vol 35, Issue 1, p101
- ISSN
0270-9163
- Publication type
Article