7.1.1 Timing

Under Rule 601, an Offer of Settlement may be submitted at any time before FERC’s final decision in the proceeding.[1]  The best practice is to submit a settlement before or, at latest, during the public comment period on the REA Notice or, in an ALP, the Notice of Acceptance.  FERC must base its licensing decision on an environmental document that considers Action Alternatives, and a settlement may be approved only if it is within the scope of one or more such alternatives.  While FERC has approved settlements submitted after the publication of the draft or even final environmental documents, it strongly discourages such lateness, which creates a significant risk delay in the final decision if such a document must be supplemented to address a new Action Alternative, or if non-signatories submit adverse comments.

Working backwards from the REA Notice, the licensee and other participants typically decide early in a proceeding whether they will try to negotiate a settlement.  The Process Plan in the ILP, like the Communications Protocol in an ALP, must address the intent and schedule for such negotiation.

Inertia is a significant impediment to settlement.  Establishing a process structure as soon as possible is critical to overcome inertia.  See Section 4.4.5(A) above for specific recommendations on such structure.  These recommendations boil down into a few principles.  (1) Adopt the process in written form to prevent misunderstanding. (2) Work on a clock.  (3) Become accustomed to making little decisions together, in preparation for the bigger decisions involved in settlement.  (4) Resolve disputes as they arise, not later.  (5) Negotiate only those issues necessary for settlement.

[1]               See 18 C.F.R. § 385.602.