FERC on Friday heard from affected communities, landowners, consumer advocates and others on how to set up its new Office of Public Participation (OPP) — including the group’s structure, function and funding.
“There’s a history of mistrust that exists, and if you don’t understand where that mistrust lies [and] what you may have done to have perpetrated that, there’s no way you can possibly thoroughly meet folks in terms of outreach and engagement,” Olivia Nedd, director of access and equity at Vote Solar, said.
First step: move beyond the legal focus and jargon, said Marty Rozelle, president of the Rozelle Group and former president of the International Association of Public Participation.
“To whom will this office report? I recommend they not report to the general counsel’s office; there is a place for the lawyers, but not at the beginning,” Rozelle said. She also suggested when setting up a public meeting not to put chairs in a row before a podium, which is adversarial, but instead make a circle.
Susanne DesRoches, deputy director for infrastructure and energy at New York City’s Office of Resiliency and Office of Sustainability, said New York is the only municipality that regularly participates in NYISO’s stakeholder process. Consumer representatives are mostly very large commercial, industrial and institutional customers — groups that can afford the resources necessary to participate, she said.
For FERC proceedings, “I have to hire multiple consultants just to understand what’s going on,” DesRoches said.
“One issue I wanted to bring up is just the amount of time that participants have to respond [at FERC],” she added. “At the New York State PSC, when something is made public, when there’s a proceeding that starts, we have 60 days to respond as a stakeholder compared to 21 days at [FERC], and that puts a real strain if we want to partner with other organizations or do outreach on the issue. We only have three weeks.”
Steep Learning Curve
The hurdles faced by the public in most FERC proceedings are daunting and the learning curve is very steep, said Kin Gee, president of New Jersey grassroots group Consumers Helping Affect Regulation of Gas and Electric (CHARGE).
“The practice where the applicant or petitioner is responsible for the outreach and controls the timing and information made available to the public is fundamentally flawed [and] epitomizes letting a fox guard the henhouse,” Gee said.
FERC Chairman Richard Glick agreed that commission proceedings can be difficult for members of the public to follow.
“I think we’re going to need to focus on a couple areas, certainly communication, and we’ll need to improve on outreach to various affected communities that haven’t necessarily had that outreach, and on simplifying processes,” Glick said. “Sometimes I get confused, so [for] folks that don’t spend every day working on these issues, [I] can’t imagine what they think … and how we handle them.”
David Springe, executive director of the National Association of State Utility Consumer Advocates (NASUCA), said that FERC needs to figure out how to fund greater participation by consumer groups and advocates.
“Could the OPP help facilitate and improve participation at FERC in terms of our proceedings but also in terms of RTO processes and stakeholder meetings?” Glick asked.
“Rightly or wrongly FERC gives a level of deference to outcomes that come through the process, which means we need something more than just outreach,” Springe said. “There needs to be actual legal representation, needs to be funding so people can participate meaningfully in those processes. So I think the [OPP] probably isn’t the be-all, end-all of solving historically stated concerns with RTOs and governance, but I think it can play a role.”
Commissioner Mark Christie asked whether NASUCA members need to look at resources at the federal level to really focus on FERC, but Springe said it is too small an organization for such an effort.
Commissioner Allison Clements, whom Glick named to head the OPP initiative, said the office would help in “making sure the decisions and actions of the commission are better informed, more efficient, more inclusive, which in turn will make the commission’s work more credible and more durable.”
Clements especially thanked Tyson Slocum, director of the energy and climate program at Public Citizen, for his work over many years in pushing Congress and the commission to create the OPP.
“The OPP could assign staff to each of the different RTOs/ISOs not just to disseminate information about important developments and proceedings going on at the RTOs, but also to recruit other public interest entities to participate and engage in stakeholder meetings,” Slocum said in response to a question from Glick.
Slocum also advocated for up-front funding for those intervenors that simply don’t have the structure or funds to ride out the intervenor compensation process, to enable them to participate through the end of a given proceeding.
Equity and Landowners
Among households in the Northeast with annual income at or below $20,000, those headed by African Americans were more than twice as likely as their white counterparts to experience loss of heating service, John Howat of the National Consumer Law Center said.
“I would add that, looking at the data, indigenous communities experience energy inequity at higher rates than any other communities,” Howat said.
Deb Evans and Ron Schaaf, Oregon landowners affected by the Pacific Connector Gas Pipeline project, said that landowners tend to trust neighbors, but not so much the government, and that the response they get from FERC, positive or negative, affects them tremendously.
“We found that out in reaching out to your staff at FERC that you got various different people, and it’s a testament to the professionals at FERC that we were finally able to talk to [someone] that helped us understand which policies to look at, which ones to try to understand. [That] made a huge difference,” Schaaf said.
Lois Sweet Dorman, Snoqualmie Tribal Elder in Washington state, said, “What we know as our sacred place of creation [Snoqualmie Falls] is known as FERC Relicensure Project 2493. We were lumped together with kayakers as simply stakeholders in the relicensing of a hydro project, but we’ve been here since time immemorial. … I don’t understand the inability of this process to ever integrate consideration of the sacred.”
Michelle Martinez, the acting executive director of Michigan Environmental Justice Coalition, said that upper peninsula residents are paying upwards of $1,200/month on energy, using dangerous alternative means to heat their homes, or sleeping with pets to stay warm.
“What is happening in the energy system is immoral at a Biblical scale, and we’ve waited 40 years for the [OPP], the simplest procedural piece. Now what is more complex is how to have meaningful public participation,” Martinez said. “There is a difference between the ability to participate and the ability to influence.”
Community Engagement Critical
The theme of meaningful participation continued in afternoon panels, as participants urged commissioners to ensure that the “public” in the new office’s name is not just for show.
“First and foremost, the engagement of communities must have teeth,” Jacqueline Patterson, director of the NAACP’s Environmental and Climate Justice Program, said during the “Energy and Environmental Justice” panel. “Our government must live up to the tenets of democracy: of the people, by the people, for the people. If input does not lead to decision-making, please do not waste the time of already-beleaguered communities in performative actions.”
Part of the OPP’s mission must be to reach out to “the communities that are the farthest off the map,” Patterson continued. To illustrate how the office could do this, she told commissioners about a survey she conducted recently that offered participants multiple routes to communicate with researchers, including a Google form, email, voice mail and even one-on-one interviews.
The guiding principle for the survey, she explained, was to enable community members to reach out to the researchers on their own terms, using methods that worked for them. Opening up in this way meant more work for the survey team but allowed a considerably wider range of voices to be heard. Crucially, these voices included those who might not have internet access to fill out online forms, or who may not feel comfortable with written responses or with speaking to strangers.
Matthew Tejada, director of the office of environmental justice at the Environmental Protection Agency, agreed that public engagement requires “more investment [and] foresight” than agencies might previously have expected to commit, but that officials have to realize that their needs are not the most important part of the process.
“We’ve come a long way from the days when we might hold a hearing, and that hearing would be at noon at some really nice hotel downtown on a Wednesday,” Tejada said. “When we need to hear from the communities that are being impacted by our decisions … we know we need to make those hearings available to communities in places and at times and in ways that work for them, not that work for us.”
Glick admitted that he “hadn’t really given a lot of thought to environmental justice” prior to joining FERC in 2017, but that his reading on the subject since then had driven home what an “illogical approach” the commission had taken to the subject. He asked participants for advice on embedding a focus on justice and equity not just into the OPP but into the commission overall, noting that he planned to create a “senior staff position” for environmental justice at FERC soon.
In response, Shalanda Baker, deputy director for energy justice and secretary’s adviser on equity at the Department of Energy, said the appointment of a senior staff officer focused on environmental justice is “a great start,” as long as that person has a role in decision-making along with a title. FERC also needs to ensure that “everyone [has] ownership” of the concept of equity, rather than letting it all fall on the shoulders of one person who becomes a scapegoat when reality falls short of expectations.
Baker also emphasized that officials need to respect that community traditions and experiences constitute their own forms of expertise that deserve to be considered alongside the technical experts they may be more accustomed to encountering.
“I think in order to reach agreement on the complexities of the transition, we have to know and understand the communities and really treat them as true partners in the transition,” Baker said. “So there’s deep expertise, but it requires people to get to know who the community leaders are and who the members are. Sometimes [that means] going to places that we don’t even think are … where that expertise lives — the aunt, the uncle, the grandmother who’s holding the community knowledge, but it really requires patience to get to know who those people are.”
Coordinating Public Assistance
In another panel, the panelists focused on ways the OPP can offer a better understanding of the commission’s processes through education and public engagement, while also seeking ways to better coordinate public requests of assistance for individuals looking to intervene or participate in FERC proceedings.
Susan Tierney, senior adviser at the Analysis Group and former assistant secretary for policy at DOE, said beginning with a “well-designed and well-resourced” OPP will allow it to aid in the commission’s ability to fulfill its mandates for public interest. Tierney said having more voices in FERC proceedings from communities directly impacted by the commission’s decisions and “[removing] barriers to public participation” will greatly improve the integrity of decisions being made.
“The Office of Public Participation should have the resources, staffing, expertise and scope of work to support meaningful participation,” Tierney said.
Shelley Welton, associate professor at the University of South Carolina School of Law, focused on relating her research on public participation in federal agencies to challenges currently faced by FERC. Welton’s research deals with several issues surrounding the ways climate change is transforming energy and environmental law and governance, including the integration of clean energy technology with privatized grid governance.
Welton said her research has shown that early public participation is important in proposed projects or rules formally being considered before the commission. She cited the complications of electric proceedings at FERC, saying “timing challenges equate to venue challenges,” as Section 205 filings are formulated months in advance within the RTO/ISO stakeholder process, leaving the commission “limited by deferential review standards.
The OPP should focus on improving participation and transparency in “notoriously opaque RTO/ISO processes,” Welton said, putting its field staff in different regions to help “translating out” and “translating in” the earlier stakeholder processes before an issue comes to FERC.
“At its best, I think this office could help FERC receive a wealth of new and valuable perspectives on how to interpret and apply the commission’s broad and malleable charges of statutory authority,” Welton said.
