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FERC law judge clarifies settlement conference requirements for state regulators

Explaining that she never meant to change any "longstanding practice of comity and accommodation regarding the unique posture of state commissions," FERC Chief Administrative Law Judge Carmen Cintron clarified her recent notice outlining expectations for participants in agency in-person settlement conferences.

Cintron's Aug. 30 notice, which specified that all such participants must have "full ... authority to negotiate and accept or approve settlement terms," prompted a group of regulators from nine states to ask the chief judge for clarification of the new mandate. In their Nov. 29 letter, they warned that the move would "have a chilling effect" on their involvement in settlement negotiations since "no one state commissioner can bind any participating state commission by unilaterally negotiating, accepting or approving the terms and conditions of a proposed settlement at FERC."

Representing state commissions in Kansas, Michigan, Pennsylvania, South Dakota, New Jersey, North Dakota, Ohio, Texas and New Mexico, the regulators requested that Cintron generically grant state and local regulatory bodies an exception from the requirement so long as they commit to provide guidance so their representatives can participate in negotiations "in good faith."

Such entities "will almost always be unable to comply with" the new requirement because their authorizing statutes generally set out a formal process for accepting or approving a proposed settlement that "often involves public notice, an open meeting, and quorum requirements," the regulators explained.

While Cintron did not specifically offer an exemption to state commissions, she acknowledged that they "have always meaningfully participated in settlement conferences" by sending fully informed representatives who, in turn, make recommendations to the regulatory bodies authorized to accept negotiated settlements.

The judge accordingly revised the language of the notice to recognize that certain participants may need to receive formal approval of any deal they strike from their "officials or leadership."

"For example, it is common for state commission representatives to be able to say whether they can recommend proposed settlement terms to their commission," she wrote.