Commissioner Mark C. Christie Statement
March 18, 2021
Docket No. IN19-4-000
Order: C-6
This is one of the first major enforcement orders, at least in terms of the potential penalty, since I arrived at the Commission so I write separately to add the following.
I concur with issuing today’s Order to Show Cause (OSC) because the allegations describe potentially egregious misconduct, including allegations of intentional actions and deceit that irrevocably destroyed a property and, in so doing, interfered with the Commission’s certificate process. These deeply serious allegations need to be further examined with appropriate due process.
This OSC is the first step in that process as more fully described in the order.[1] When this matter is fully briefed, if the Commission determines a hearing is needed, the Commission will issue a hearing order and indicate whether the Commission will conduct a paper hearing or a hearing before an Administrative Law Judge (ALJ). I note generally that to the extent permitted by the statutes and regulations, a full hearing before a neutral arbiter appears to me to be the appropriate path in most, if not all, matters involving disagreements over material facts. In enforcement proceedings at the Commission arising under the Natural Gas Act, I understand that process to consist of a hearing including testimony under oath before a neutral ALJ, with no presumptions given to the allegations and with penalties assessed only as to proven violations.
FERC, like other federal administrative agencies, combines the roles of prosecutor, judge and jury. If you’re uncomfortable with that combination, so were the Framers of the Constitution of the United States, one of the key principles of which was the separation of the prosecutorial power (Executive) from the judging power (Judicial). In addition to the separation of prosecutorial and judicial powers, the Constitution further guaranteed the right to choose that the fact-finding power inherent in the judicial role be exercised by a jury of peer citizens in certain cases. Congress chose to combine all these powers, by statute, in specified administrative agencies so an agency could enforce its own rules and regulations instead of prosecuting them in Article III courts.
I know from experience as a commissioner of a state regulatory agency that the enforcement of regulations by an administrative agency can and should be done with appropriate regard for due process. I write this concurrence and note the process existing within the scope of the Commission’s rules and regulations, to emphasize that I view this to be the first step in a process and my vote today is not a prejudgment as to the ultimate resolution of this matter with respect to either a finding of a violation or any penalty.
For these reasons, I respectfully concur.
[1] Order at P 5.