By Rich Heidorn Jr.

FERC can’t overturn the New England Power Pool’s longstanding ban on public and press access to stakeholder meetings, NEPOOL told the commission Thursday.

In a motion to dismiss RTO Insider’s protest seeking to open meetings to the public and press, NEPOOL said FERC lacks jurisdiction to force changes and that RTO Insider lacks standing to challenge the rules.

“NEPOOL does not engage in the transmission or sale of electric energy in interstate commerce, nor does it operate any facilities that are used for such purposes,” it said. “As such, NEPOOL is not a ‘public utility,’ and its supposed ‘press ban’ is not a ‘rate, charge or classification’ related to the transmission or sale of energy. These provisions of the [Federal Power Act] do not provide any basis for RTO Insider’s complaint.”

On Aug. 13, NEPOOL asked FERC to approve amendments to its Agreement to codify an unwritten policy of banning news reporters and the public from attending the group’s stakeholder meetings (ER18-2208). The group drafted the revisions after RTO Insider reporter Michael Kuser applied for membership in NEPOOL’s Participants Committee as an End User customer in March.

RTO Insider responded to NEPOOL’s filing with a Section 206 complaint Aug. 31 asking the commission to overturn the organization’s ban or terminate the group’s role and direct ISO-NE to adopt an open stakeholder process like those used by other RTOs (EL18-196). New England is the only one of the seven U.S. regions served by RTOs or ISOs where the press and public are prohibited from attending stakeholder meetings.

NEPOOL’s 57-page filing, which it submitted in both dockets, cites the D.C. Circuit Court of Appeals’ 2004 order rejecting FERC’s attempt to force CAISO to replace its governing board. The D.C. Circuit vacated FERC’s action and remanded the case, ruling that “FERC … does not have the authority to reform and regulate the governing body of a public utility under the theory that corporate governance constitutes a ‘practice’ for ratemaking authority purposes.”

NEPOOL also said RTO Insider’s request that FERC open the organization’s meetings or strip it of its FERC-authorized role as ISO-NE’s stakeholder body is a “collateral attack” on prior commission orders giving NEPOOL its role in the RTO. While NEPOOL claimed FERC had no jurisdiction to force it to change its rules, it did not challenge the commission’s authority to order ISO-NE, which it noted “is the FERC-jurisdictional public utility,” to adopt a new stakeholder body.

Former FERC Chairman Pat Wood III and former Commissioner Nora Mead Brownell have said they were unaware when they approved NEPOOL as ISO-NE’s stakeholder body in 2004 that NEPOOL barred the public and press from its meetings. According to former Chairman Jon Wellinghoff, FERC commissioners also were unaware of the ban in 2008 when they approved Order 719, which requires that RTO/ISO processes be inclusive, responsive and represent minority interests. (See Wood, Brownell: Unaware of Press Ban When OK’d NEPOOL.)

Seven Intervenors File Comments

NEPOOL was among seven intervenors filing comments in the docket opened by RTO Insider. All but one of the others — including consumer, environmental and press freedom advocates — joined in calling for the opening of the meetings.

Also calling on the commission to open the meetings were a dozen members of the House of Representatives. Their Sept. 18 letter said NEPOOL’s proposal to codify its unwritten ban on public and press coverage “at best … is misguided; at worst it is an unconscionable restraint on the critical need for transparency in the New England energy and electric markets. … Codifying such a ban is antithetical to principles of good governance and the mission of FERC.

“The current NEPOOL practice of publicly releasing meeting agendas, draft resolutions and background materials prior to meetings, as well as official records and meeting minutes following meetings, is not an adequate substitute for attending and understanding the meeting itself,” they continued. “Planning for the electric grid is an inherently governmental function and justifiably must be transparent to the greatest extent possible.”

The letter was signed by Rep. Frank Pallone (D-N.J.), the ranking member of the House Energy and Commerce Committee; Rep. Fred Upton (R-Mich.), the chairman of the committee’s Subcommittee on Energy; Rep. Bobby Rush (D-Ill.), the ranking member on the subcommittee; seven of nine members from Massachusetts’ delegation; and one representative each from Rhode Island and Vermont.

In their filings, NEPOOL member William P. Short III and the Reporters Committee for Freedom of the Press essentially repeated arguments they made opposing the ban in NEPOOL’s docket. (See NEPOOL Alone in Support for Press, Public Ban.)

‘Not Informal Brainstorming Sessions’

But the New Hampshire Consumer Advocate, Public Citizen and a joint submission by environmental groups Earthjustice, the Conservation Law Foundation and the Sustainable FERC Project expanded on their earlier filings.

The environmental groups noted that FERC previously ordered modifications to the NEPOOL Agreement in a 1997 order directing the organization to eliminate a requirement that members “‘be engaged in or propose to engage in the wholesale or retail electric business in New England,’ noting that it had prohibited geographic limitations on membership in power pools in a prior order.”

New Hampshire Consumer Advocate D. Maurice Kreis said that NEPOOL’s “jump ball” rights to submit filings opposing ISO-NE makes it more powerful than other RTO stakeholder bodies. “In legal terms … NEPOOL is as powerful as ISO New England is with respect to the market rules that govern how electricity and related products are traded,” he said.

The jump-ball provisions “belie the impression NEPOOL seeks to convey here of serving merely as a kind of debating forum whose decisions rise and fall purely based on their persuasive value,” he added. “Meetings of the principal committees of NEPOOL are not informal brainstorming sessions.

“There are also potential First Amendment implications of a commission-approved restriction on the speech and publication activities of NEPOOL meeting attendees. While NEPOOL is not itself an instrumentality of government, ‘private speech prohibitions can still implicate the First Amendment when given the imprimatur of state protection through civil or criminal law,’” he said, citing the Supreme Court’s landmark 1964 ruling New York Times Co. v. Sullivan.

Conflicts of Interest

Tyson Slocum, energy program director for Public Citizen, challenged NEPOOL’s contention that an “overwhelming majority” of NEPOOL participants voted to ban journalists. Of the 113 NEPOOL participants who were eligible to vote during the June 26 NEPOOL meeting to consider banning reporters, “more voted to abstain (58) than the number casting votes for (32) and against (23) COMBINED.”

Slocum said some current and former NEPOOL officers that supported the ban “earn outside income selling ‘intelligence’ about NEPOOL proceedings, creating financial conflicts of interest.”

“Twenty of the 32 votes in favor [of the ban] were represented by lobbyists who either serve as NEPOOL officers or were recruited by NEPOOL to serve as an expert witness on behalf of NEPOOL’s advocacy to ban journalists. This is an alarming concentration of voting power by lobbyists who have a financial self-interest to maintain a ban on the public and journalists. … NEPOOL’s restrictions on public and media access allow those with restricted access to possess valuable information about NEPOOL activities that are nonpublic, which they can then sell for lucrative amounts to interested parties.”

Slocum noted that almost 80% of NEPOOL’s 2018 budget is generated through membership fees and expenses and that NEPOOL members in the Transmission and Publicly Owned sectors can collect these expenses from ratepayers. “While NEPOOL likes to characterize itself as a ‘private, voluntary association,’ its reliance on ratepayer money — when combined with FERC-delegated authorities — mean NEPOOL is not entitled to be treated as a normal ‘private’ association for purposes of admitting the general public and journalists into its policy-related meetings.”

Consultant Challenges ‘Mischaracterization’

Aside from NEPOOL, the only filing that did not support opening the meetings was one by consultant Erik Abend, who said he was seeking to correct the “mischaracterization” of his business in RTO Insider’s complaint.

Abend, the primary NEPOOL committee member for the Small Renewable Generation Group in the Alternative Resources Sector, acknowledged that he provides “high-level explanations, analysis and advice” on issues discussed at stakeholder meetings, both to his clients and to non-NEPOOL members through a weekly summary published to a secure website for the Northeast Energy and Commerce Association (NECA).

Abend said his role does not meet NEPOOL’s proposed definition of “press” and that his summaries “do not directly quote or paraphrase any statements made by market participants during any of the NEPOOL committee meetings. … As with the summaries that I provide directly to my NEPOOL member clients, the information contained in these summaries for NECA are drawn directly from materials that are publicly available from the ISO-NE and NEPOOL websites.”

Meetings are ‘Not Secret’

In its filing, NEPOOL said it was entitled to “discriminate” in allowing consultants to attend meetings while barring the press because the former “do not endanger the tradition of open dialogue in NEPOOL meetings by publicly reporting on the statements of other members.”

NEPOOL said RTO Insider lacks standing to challenge its rules because it does not participate in New England “either as a market participant or an end-use customer.” It also said the company could not contest the organization’s refusal to admit its reporter, Michael Kuser, a Vermont resident.

It insisted its meetings are “far from secret. The date, time and location of NEPOOL meetings are posted publicly and are available online … [and] the agendas and materials for each meeting are almost all circulated well in advance.”

It noted that its participants include consumer-owned utility systems, public interest groups, state consumer advocates and representatives of end-use consumers, and that state regulators and elected officials can attend in person or through delegates.

The group said it balances “two types of ‘transparency’ – (i) transparency to the non-stakeholder general public; and (ii) transparency among its meeting attendees.”