When Your Consolation Prize Sucks

Powhatan Energy Fund has a new document on its website*, a transcript from a September 13, 2021 court hearing.  The judge seems rather perplexed over the case, and positively peeved that she was promised over and over again by FERC that the case was about to settle; and then it didn't.

"And so what I want you to know is that you took advantage of my good grace. All of you. I'm going to say FERC especially. They were the ones coming in and telling me, "Listen, we're going to do it. We're going to do it. We're going to settle the case. We're going to settle the case.
And I take at your word what the United States of America says to a federal judge. I used to represent the United States of America. And what you say is extremely meaningful. It would never occur to me that a United States agency would put a case on hold for more than a year telling the judge that they were going to settle when they weren't.  Now, I can tell you, I don't know who's being unreasonable, but it better not be FERC because I feel lied to. I'm going to tell you that."

Did FERC lie to the judge?  Was it ever going to settle?  It's not like an offer of settlement was never made by Powhatan, it's just that FERC chose not to accept the offer.  And why not, FERC?  At what point did this case become more about human ego than it is about regulation in the public interest?  It seems like the Judge was equally perplexed over FERC's obstinate refusal to settle, even though it would receive absolutely nothing if the case went to trial and FERC won.

What I am hearing is there is an entity who is being sued and is claiming it's broke. Now, that to me suggests what are you going to get? You're going to get years of litigating money that they say they don't have.

We're going to have a trial, and if you win,  you're going to get years of litigation about money that they say they don't have. And I can tell you I  know in this circumstance, not through anything I have heard from a magistrate judge, but from my nine years  of experience settling over 600 cases that somebody or more than one somebody is being completely unreasonable.

It sounds like the only thing FERC is going to get is a consolation prize... a piece of paper to hang on somebody's wall.  There will be no financial recovery.  The ratepayers get nothing. FERC's consolation prize sucks.

Sometimes swaggering around like Wyatt Earp doesn't make you a hero.  Sometimes it just wastes an incredible amount of time and money.  No wonder the judge is so exasperated.

At what point does the government's aggressive pursuit of retribution deserve scrutiny from the court?  Isn't the Court supposed to protect citizens from unreasonable aggression perpetrated by their own government?  Considering that this case has been languishing at the Court for seven years (the rocket engines attached to it must be defective), and the defendants have had their professional and personal lives turned upside down for more than a decade, at what point should a Court start giving the government the hairy eyeball? Maybe the government has made a lot of mistakes, causing the tables to turn, and make Powhatan the ultimate victim?  At what point will Powhatan's punishment be complete?

Maybe FERC should have accepted Powhatan's settlement offer last year and been done with it?  FERC was warned last summer that there was little money left.  Most of it has been spent defending against FERC's unreasonably aggressive pursuit of ridiculous penalty amounts that it refused to explain for years.  Powhatan had to wait a decade and spend millions of dollars to find out what it had supposedly done wrong and how FERC calculated its impractical penalty amounts.  And now all the money has been spent.

It's not like FERC didn't enter into a substantially similar settlement with another accused party where it recovered a small amount of money and banned the trader from the markets for a period of time.  There were no penalties in that settlement.

What's different about the Powhatan defendants?  Is it because they didn't do this the minute FERC threw open the batwing doors and swaggered into the marketplace?

Is it about FERClitigation.com?  Is it about all the media stories?  Is it because the Gates brothers annoyed FERC by refusing to back down?

So, what does FERC get for ratepayers now?  It gets to be an unsecured creditor in a Chapter 7 bankruptcy action that would probably produce little to no money.  Thanks a lot, FERC.

Continuing this ego-driven d*ck-waving contest would try the patience of even the most patient soul.  Her Honor is probably feeling more like a kindergarten teacher than a federal court judge right now.  Maybe she needs to cancel recess and put the little government cowboys down for a nap and let them sleep it off?

If FERC settled right now, it could have this headline:  "FERC Bankrupts Powhatan".  Maybe FERC could even sweeten it a bit by adding a subhead "Bans Principals from Electric Markets."  FERC has to readjust its expectations here.  Honestly, I've never seen such a pointless pursuit.  Maybe FERC should propose a  headline and ownership of ferclitigation.com to settle the case?  It might be the only thing of value Powhatan has left. 

*And now the website is for sale!  Who wouldn't want to own a website that could call out the Federal Energy Regulatory Commission for all the stupid litigation mistakes it makes?  Maybe FERC wants to buy it and decorate it in a wild west theme?