by Jean-Luc Kreitner[1]
The views, opinions, and content in this blog post are those of the author and do not necessarily reflect the official policies or positions of the EBA or its related entities. The information provided here is for general informational purposes only and should not be considered as professional or legal advice or recommendations. See the Terms of Use for more information.
Cases set for hearing before the Commission vary in size, scope, and complexity. Consequently, the Commission offers three distinct procedural tracks that are designed to accommodate the differing needs or circumstances of various cases. Understanding the nuances of these tracks—aptly named Track I, Track II, and Track III—is crucial for the participants involved in proceedings before the Commission. This article explores the factors that should be considered when deciding which procedural track is appropriate for a particular case, and it includes an illustrative case study from Oak Trail Solar, LLC (EL24-63-000).
Track I Proceedings
Key Details
- Appropriate for: Simple Cases
- Standard Timing:
- Hearing Date – 19.5 Weeks
- Reply Briefs to ALJ Date – 25.5 Weeks
- Initial Decision Date – 29.5 Weeks
Procedural schedules in Track I proceedings are expedited in comparison to other tracks. They are typically reserved for cases involving few contested facts or issues or those otherwise requiring minimal litigation, since they may not afford sufficient time for extensive discovery or the preparation of complex legal arguments. Track I’s rapid timeline is also advantageous in matters requiring quick decisions to address pressing concerns. As is true of any track, participants must weigh the benefits or the urgency of resolution against the complexity of the issues and the availability of resources, including technical expertise and documentary evidence. In other words, if the matter is straightforward and uncontroversial, Track I may be fitting due to its expedited nature. However, if the issues are intricate or contentious, participants may need to consider whether Track I provides adequate time for thorough examination and presentation of evidence.
Track II Proceedings
Key Details
- Appropriate for: Complex Cases
- Standard Timing:
- Hearing Date – 32 Weeks
- Reply Briefs to ALJ Date – 40 Weeks
- Initial Decision Date – 47 Weeks
Track II proceedings offer participants a more relaxed timeline compared to Track I, providing additional time for litigation or negotiation. They are designed for matters that are more complex or contentious than those suitable for Track I but that do not require the full procedural rigor of Track III. When considering a Track II procedural schedule, participants should assess whether the discovery mechanisms permitted by the Track II timeframe are sufficient for their case. While Track II allows for more extensive and varied discovery, including depositions, it may not provide the same breadth of discovery available in Track III. Ultimately, the appropriate track is always the one that provides a swift resolution consistent with discovery and case preparation needs.
Track III Proceedings
Key Details
- Appropriate for: Exceptionally Complex Cases
- Standard Timing:
- Hearing Date – 42 Weeks
- Reply Briefs to ALJ Date – 53 Weeks
- Initial Decision Date – 63 Weeks
Track III proceedings are the most comprehensive and are designed for highly complex or contested matters.[3] Track III allows for more expansive discovery than Track II, which translates to a greater degree of procedural rigor and potentially higher litigation costs. If a participant anticipates a protracted and heavily contested litigation process, Track III is likely the most appropriate option. However, consideration should also be given to one’s overall litigation needs and whether the issues at hand actually warrant a longer, more costly timeframe.
Case Study: Oak Trail Solar, LLC (EL24-63-000)
In Oak Trail Solar, LLC, a reactive power case, the Chief Judge found that the Track II procedural time standards requested by Trial Staff were more appropriate for the proceeding than the Track I standards requested by the intervenors, or the Track III standards Oak Trail Solar, LLC (Oak Trail) suggested without explicitly committing to.[4]
Oak Trail originally submitted its proposed rate schedule on April 28, 2023 and later amended its filing on August 28, 2023 and on December 21, 2023.[5] The intervenors in the proceeding later filed a motion for a Track I procedural schedule,[6] arguing that an expedited proceeding was appropriate, despite the complexity of the case.[7] In support of their position, intervenors argued: (1) that Oak Trail had already submitted its case in chief; (2) that Oak Trail had already answered many questions in deficiency responses; (3) that the true evidentiary burden lies on intervenors and Trial Staff, not Oak Trail; and (4) that Oak Trail and Trial Staff already had substantial experience with similar, recent cases.[8] In response, Oak Trail argued that a Track I schedule would break from Commission precedent since such schedules are reserved for simple cases that generally involve, for example, a single issue or cost item.[9] Instead Oak Trail it suggested that Track III would be more realistic for this case, due to its complexity in comparison to others with some similarities.[10] Trial Staff came out in the middle, arguing that: (1) the instant case requires case-specific inquiries and analyses; (2) primary consideration should be given to the development of a complete and accurate record; (3) the limited refund window available to customers counseled against unwarranted delay; and (4) a Track II schedule would be consistent with previously adopted schedules in other reactive power hearings.[11]
The Chief Judge ultimately sided with Trial Staff because: (1) reactive power proceedings involve sufficiently complex issues that require individualized record development on unique factual inquiries; and (2) other reactive power proceedings have also received procedural schedules that were at least as long as Track II.[12] In coming to his conclusion, the Chief Judge noted that the intervenors “admit[ted] that they ‘would not describe’ this proceeding as ‘simple.’” While the intervenors’ desire for an expedited proceeding was sensible under the circumstances, Track I procedural time standards are for “simple” cases. In other words, a Track I schedule was not definitionally appropriate.
Conclusion
In considering which procedural track is appropriate, participants should carefully evaluate various factors, including the complexity of the issues, the urgency of resolution, discovery needs, resource availability, the nature of the dispute, and overall litigation strategy. By carefully evaluating these considerations, parties can make informed decisions regarding the most suitable procedural track for their case, ensuring efficient and effective resolution before the Commission. If a matter is straightforward and uncontroversial, Track I may be suitable due to its expedited nature. If the issues involved are moderately complex and may require limited discovery or evidentiary hearings, Track II may offer an adequate procedural framework. However, if the dispute involves highly technical or contentious matters necessitating extensive discovery and evidentiary proceedings, parties may need to consider Track III.[13]
[13] It bears noting that participants can seek to modify the Tracks. It is fairly common for participants to request two-to-six-week extensions of the default schedules, with most being requests of two-to-four weeks. Extending the procedural schedule at the outset of the proceeding is very common and usually unopposed, unless the extension would conflict with the Administrative Law Judge’s or participants’ other time commitments. These extensions are not akin to moving from one track to another since there is a twelve-and-a-half-week difference between tracks I and II and a ten-week difference between Track II and III. In other words, even a six-week extension should not afford enough time to properly litigate a complex case.
[12] Id. PP 23-25.
[4] Order of Chief Judge Designating Settlement and Presiding Judges, Establishing Track II Procedural Time Standards, and Partially Granting Motion, Oak Trail Solar, LLC, Docket No. EL24-63-000, at PP 6, 12, 15, 23-25 (issued Mar. 4, 2024) (March 4 Order).
[5] Oak Trail Solar, LLC, 186 FERC ¶ 61,126, at P 1 (2024).
[6] March 4 Order at P 6.
[7] Id. P 9.
[8] Id.
[9] Id. P 15.
[10] Id.
[11] Id. P 12.
[3] Many Track III cases are brought under the Natural Gas Act and the Interstate Commerce Act (ICA) because: (1) settlement efforts and litigation often proceed simultaneously in these cases, unlike cases brought under the Federal Power Act (FPA); (2) these cases frequently involve rate design issues unlike FPA rate cases; and (3) the potential for reparations and achieving market-based rates in cases brought under the ICA are often highly fact-intensive.
[2] These timing standards apply unless the relevant Commission order directs otherwise. Requests for modification are to be directed to the Chief Judge. All times run from the order designating the Presiding Judge.
[1] This article was prepared by the author in his personal capacity. The opinions expressed in this article his own and do not reflect the view of the Federal Energy Regulatory Commission, its Commissioners, or the United States government.