Commissioner James Danly Statement
May 11, 2023
Docket No. EL21-36-000
I disagree with today’s Release Notification Order[1] and write separately to emphasize that the Commission had another option. We could have issued a partially redacted order that protects privileged information in the public version of the order.
While the Commission has not made a practice of issuing partially redacted orders, there is reason to have considered doing so here. The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has explicitly suggested that a redacted order is a potential option when the Commission needs to rely on privileged information to satisfy its obligation to engage in reasoned decision making under the Administrative Procedure Act.[2] Admittedly, the court’s suggestion was dicta, but it is nevertheless reassuring. And the issuance of a partially redacted order would not deprive parties of the opportunity to review the full order—any party that seeks to obtain the full, unredacted order can sign a protective agreement and be granted full access.[3] In fact, Mankato Energy Center, LLC and Mankato Energy Center II, LLC (Mankato Companies) provided just such a protective agreement in Attachment A of their Initial Brief in this docket.[4]
Things are going to move quickly from here, assuming Mankato Companies want the continued protection of their privileged material. Under our regulations, the Commission must give no less than five calendar days’ notice of the denial of a claim of privilege, in whole or in part, before disclosure.[5] The Commission, however, committed in this case to “not disclose any Privileged Information prior to 10 business days from the date of this order . . . .”[6] Now, Mankato Companies have only one recourse: to go to a U.S. district court to seek an injunction prior to the release.[7] Practically speaking, abbreviated timelines are the least of their concerns. They must contend with the fact that any challenge they mount before the court will be based on generalities and suppositions because the Commission’s notice affords no indication of the specific information that the Commission intends to release. All that the Commission has said is that “it will disclose[] . . . only those portions of the Privileged Information that would be necessary for the public to understand such order and that the Commission deems necessary to carry out its jurisdictional responsibilities,” i.e., “only those portions of the Privileged Information that it needs to rely on to make its determination regarding affiliation.”[8]
I am sensitive to the concerns regarding notice, process, and reasoned decision making that presumably animated my colleagues’ decision to err on the side of over-release. But it is important for the Commission to reassure litigants that their information will be protected when filed as privileged. Of course, there could be times when the Commission is obligated to release information submitted on a confidential basis, but this does not appear to be such a case. Especially in light of the D.C. Circuit’s dicta in NTE, a better balance could have been stricken here, and to the extent to which parties would have wished to object to the issuance of a partially redacted order, they could have argued their case on rehearing. I am concerned that today’s order will cause the litigants in our proceedings to think twice before filing privileged information with the Commission. That will be bad for everyone, Commission and litigants alike.
For these reasons, I respectfully dissent.
[1] Mankato Energy Center, LLC, 183 FERC ¶ 61,095 (2023) (Release Notification Order).
[2] See In re NTE Conn., LLC, 26 F.4th 980, 988 (D.C. Cir. 2022) (NTE) (“FERC cryptically asserted that it could not explain its decision because ‘much of the pertinent information [was] filed on a non-public basis.’ . . . [I]t is unclear why, if confidentiality concerns prevented FERC from publishing a more complete analysis, it could not simply redact its order before public release, as federal courts routinely do, and as FERC has done in the past.”) (citing White Cliffs Pipeline, LLC, 168 FERC ¶ 63,033 (2019), aff’d, 173 FERC ¶ 61,155 (2020)) (internal citation omitted).
[3] See 18 C.F.R. § 388.112(b)(2) (“set[ting] forth the methods for filing and obtaining access to material that is filed as privileged in complaint proceedings and in any proceeding to which a right to intervention exists” and providing for the use of protective agreements).
[4] Mankato Energy Center, LLC February 22, 2021 Initial Brief at Attach. A (FERC eLibrary Accession No. 20210222-5189).
[5] 18 C.F.R. § 388.112(e).
[6] Release Notification Order, 183 FERC ¶ 61,095 at P 30.
[7] See Fed. R. Civ. P. 65(b)(1)(A).
[8] Release Notification Order, 183 FERC ¶ 61,095 at PP 29-30.