By Rich Heidorn Jr.

FERC on Tuesday rejected the New England Power Pool’s attempt to bar members of the press from membership but left intact — for now, at least — rules barring reporting on proceedings (ER18-2208-001).

The commission’s unanimous ruling appears to open the way for RTO Insider reporter Michael Kuser to join NEPOOL. But without additional action by the commission, he would be bound by NEPOOL’s rules barring members “from reporting on deliberations or attributing statements to other NEPOOL members.”

The commission said it would be ruling separately on RTO Insider’s Section 206 complaint, asking FERC to terminate the group’s stakeholder role or 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 filed the request to bar members of the press from joining NEPOOL after Kuser, an electric ratepayer in Vermont, applied to join as an End-User Customer in March.

NEPOOL said the rule change was necessary because allowing the press to join would inhibit the group’s ability to foster candid discussions and negotiations that narrow and resolve complex issues. NEPOOL also contended FERC had no jurisdiction to reject the rule change.

Unduly Discriminatory

FERC said, however, it did have jurisdiction, and the proposed change was unduly discriminatory.

“The NEPOOL press amendments deny NEPOOL membership to members of the press who serve any role directly connected with news collection and reporting. Because some such members of the press otherwise would be eligible for NEPOOL membership as end-use participants, this prohibition unjustly denies them the ability to vote on NEPOOL matters despite their stake in the outcome,” the commission said.

“NEPOOL’s primary argument in support of excluding the press from NEPOOL membership relates to concerns with the reporting of stakeholder discussions. We find, however, that the record does not support the contention that allowing members of the press to become participating NEPOOL members will inhibit NEPOOL’s operations or undermine stakeholder deliberations. The Participants Committee Bylaws and Standard Conditions currently in place — which this order does not affect — already prohibit all NEPOOL members from reporting on deliberations or attributing statements to other NEPOOL members. NEPOOL has not demonstrated that barring members of the press from exercising the privileges unique to NEPOOL membership — i.e., attending, speaking, and voting at NEPOOL meetings — will meaningfully advance its aim for candid deliberation in light of these existent provisions. The NEPOOL press amendments do, however, as discussed above, prevent the participation of individuals otherwise eligible for membership solely based on their profession.”

[Editor’s Note: Kuser and RTO Insider told NEPOOL officials his application was intended to provide him a means to cover stakeholder meetings, and he did not intend to take policy positions or vote.]

Jurisdiction

FERC said NEPOOL’s membership rules were within the commission’s jurisdiction because they directly affect commission-jurisdictional rates, noting that the group’s votes “both signal to the commission stakeholder approval of ISO-NE proposals and have the potential to generate alternative ‘jump ball’ proposals for commission consideration.”

The order said it was acting consistent with commission precedent. “The commission has found that the stakeholder process within an RTO/ISO ‘is a practice that affects the setting of rates, terms, and conditions of jurisdictional services of the type that the Supreme Court has held falls within the commission’s jurisdiction,’” it said, quoting from a 2016 order involving PJM.

Remaining Questions

The commission’s ruling gave no indication how, or when, it will rule on RTO Insider’s complaint, which was filed two weeks after NEPOOL’s proposed rule change.

RTO Insider contended nonpublic meetings violate the public interest and the missions stated in ISO-NE’s and NEPOOL’s governing documents.

It also contested NEPOOL’s assertion that it is a private organization, saying FERC precedent “hardwires the NEPOOL stakeholder process into the regulatory process by requiring its use.”

RTO Insider said if the power pool can justify its press ban as a “private” entity desiring secrecy, “its special powers and privileges should be transferred to an open stakeholder process within ISO-NE, and the ISO-NE resources devoted to NEPOOL (currently $2.6 million annually) should be devoted to an open stakeholder process within ISO-NE.”

Reaction

“An occasion for dancing in the streets!” tweeted New Hampshire Consumer Advocate D. Maurice Kreis, who had opposed the ban.

Another opponent of the ban, Tyson Slocum, director of Public Citizen’s Energy Program, was less jubilant, calling it “a partial victory for the public and the freedom of the press.”

“It is outrageous that, despite today’s FERC order, NEPOOL is still free to ban the general public from attending meetings, and journalists cannot attend meetings unless they pay a membership fee. FERC-jurisdictional proceedings, where billions of dollars in electric rate policy are developed, must be freely open to the public and the media,” he said.

Miles Farmer, an attorney for the Natural Resources Defense Council, said the ruling is important “because NEPOOL’s deliberations affect New England customers’ energy prices as well as the mix of technology types that supply the region.”

“ISO New England is the only regional grid operator that has closed its door on press access to its stakeholder meetings — meetings where key decisions are made about the Northeast’s electricity supply,” said Mike Jacobs, senior energy analyst at the Union of Concerned Scientists (UCS), which had opposed the NEPOOL proposal. “The need for public debate and awareness of pending energy decisions is of paramount importance as a society faces a changing climate. It’s good to see FERC cast a vote against this proposal and in favor of a little more transparency and accountability in New England’s power planning process.”

NEPOOL Chair Nancy P. Chafetz, the New England director of market intelligence for Customized Energy Solutions, did not immediately respond to a request for comment.

NEPOOL Secretary David Doot responded to the order with a memo to NEPOOL members, saying “the Membership Subcommittee will meet to consider the pending application from the RTO Insider press reporter and recommend to the Participants Committee whether any additional conditions should apply to such a membership.”