...and Justice for All

Time to myself has been a little scarce around here lately.  After nearly two weeks of hosting kids, grandkids, spouses, and assorted pets, I waved tiredly as the last car pulled out of the driveway yesterday morning.  I put a mountain of food-smeared table linens in to wash, picked up my purse, and was headed out the door to market because the only food left in the house was a crumb that was even too small for a mouse.

And then my email chimed.  "Probably just junk," I thought.  I turned to leave.  But the pull was too great... I simply had to see what it was.  When I woke up the screen, I saw a notice from the Court that an Opinion had been issued in my case. I might have panicked a bit and dropped my purse.  "This is it.  The end of our 12-year journey," I thought.  I almost didn't want to open the email.  After a few deep breaths, I screwed up my courage and opened it.  I could scarcely believe my eyes!  I immediately sent a text to my partner-in-justice Ali Haverty, who was visiting family in Seattle.  I'm not going to tell you what that text said.  Not ever.  She read the text as soon as she woke up, and let out a whoop that woke the whole family and, frankly, scared the crap out of them.

It's been a little crazy around here ever since.  I've talked to and exchanged messages with dozens of folks who played a part in this journey, as well as assorted friends and relatives.  Ali and I did a long interview with a reporter this morning.  And I finally had time to read the Court's Opinion through in a relaxed and thorough manner.  Now I can blog about it.

The email said, "Docket Text:  PER CURIAM JUDGMENT [1928333] filed that the petition for review be granted; FERC's Opinions 554-A and 554-B be vacated; and the case be remanded for further proceedings, for the reasons in the accompanying opinion. Before Judges: Srinivasan, Pillard and Randolph. [20-1324].

This means, of course, that we won.  An accountant and a school teacher beat a federal agency in court.  As Bloomberg Law said in the public portion of an article that's mostly behind a paywall, "Plaintiffs without counsel rarely are successful as these ratepayers were in their suit against the Federal Energy Regulatory Commission."  Makes us wonder how many other pro se litigants have been successful against FERC?  Who are these people?  If they exist, we need to meet up for drinks!

Of course, we're pleased!  We're happy!  We're thrilled!

But, we also worked hard for this victory.  Legal work isn't for the faint of heart.  And pushing yourself to make your work as perfect as the high-priced attorneys who practice in the D.C. energy world (and maybe in some instances, dare I say... better?) is probably silly.  But... how else can you get the system to take you seriously?  Ever since Ali and I started looking at PATH's formula rate process in the summer of 2010, we've had a very steep learning curve.  Fortunately, teaching myself complicated stuff I desperately want to know is a coping mechanism I developed early in life.  The internet is a great teacher!  We've also been very fortunate to be around some pretty great attorneys while this case has progressed.  And we've been soaking it all in.  And we soaked up a lot from FERC's enormously talented professional staff right up until things went south in January 2020.

So what did the Court's Opinion say?  It pretty much boiled down to a plain language argument.  In Opinion 554-A, FERC added the word "direct" to the language of its Account 426.4, which altered the text and meaning of the regulation.  The regulation says "for the purpose of influencing the decisions of public officials," but FERC interpreted it to say "for the purpose of directly influencing the decisions of public officials."  Then FERC claimed that PATH's expenditures to influence the decisions of public officials were "indirect" and therefore didn't belong in the account.  The Court said,

To so depart from "the regulation's obvious meaning" would "permit the [Commission], under the guise of interpreting a regulation, to create de facto a new regulation." Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000); accord Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 211 (2011) (internal quotation omitted)

One of my favorite cites, and one I memorized while writing a mountain of briefs.  Who determines what a regulation means?  Is it the language of the regulation, or is it subject to the varied interpretations of a string of appointed bureaucrats who enforce the regulation over the years?

But I think maybe my most favorite sentence in the Opinion is this one.

Petitioners initially succeeded—twice—on those claims.

We worked incredibly hard to get to the Commission's original Opinion No. 554.  It was the product of 7 years of effort on our part -- from our first initial look at PATH's formula rate to our Brief on Exceptions.  And then FERC reversed itself and threw all that away.  We had no choice but to try to set things right again.

And justice prevailed.  We are incredibly thankful.  Also incredibly tired.  But don't worry... A woman is like a tea bag - you can't tell how strong she is until you put her in hot water. -- Eleanor Roosevelt.