By Rich Heidorn Jr.

FERC on Wednesday rejected RTO Insider’s bid to force the New England Power Pool to open its meetings to the public and press, saying it lacked authority to act (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.

RTO Insider’s complaint under Federal Power Act Section 206 asked the commission to terminate NEPOOL’s role as the stakeholder body for ISO-NE or order it to adopt an open stakeholder process like those used by others. The publication filed the complaint in August in response to NEPOOL’s request to bar members of the press from joining the organization.

NEPOOL asked FERC permission to amend its rules after RTO Insider reporter Michael Kuser, an electric ratepayer in Vermont, applied to join as an End User Customer.

On Jan. 29, the commission rejected NEPOOL’s request, saying prohibiting membership based on employment was unduly discriminatory. NEPOOL is seeking rehearing of the ruling, but last month its Participants Committee agreed to admit Kuser as an End User member under strict rules that prevent him from reporting publicly on what he hears in meetings. (See RTO Insider Reporter Admitted to NEPOOL.)

NEPOOL said it sought to change its membership rules 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.

The commission — which said in the Jan. 29 ruling that it had jurisdiction to reject the membership rule change — ruled Wednesday that it did not have authority to grant RTO Insider’s request to open NEPOOL’s meetings to public scrutiny.

Commissioner Cheryl LaFleur did not participate in the 3-0 ruling by Chairman Neil Chatterjee and Commissioners Bernard McNamee and Richard Glick, the latter of whom filed a concurrence calling on NEPOOL to change its rules. LaFleur declined to say why she abstained.

Because NEPOOL does not own or operate facilities involved in the interstate transmission of electricity, it is not a public utility under the FPA, the commission said. As a result, it said its jurisdiction is limited to NEPOOL’s operations “only insofar as they directly affect jurisdictional rates.”

In the Jan. 29 ruling, the commission said it found that rules governing NEPOOL membership “directly affect what filings the commission receives pursuant to FPA Section 205” because they dictate who may vote on proposed ISO-NE filings and NEPOOL-originated “jump ball” proposals.

“However, NEPOOL rules prohibiting press and public attendance at NEPOOL meetings do not directly affect such filings because they do not affect who may vote on NEPOOL proposals. Only NEPOOL members may vote on proposed ISO-NE filings and NEPOOL-originated ‘jump ball’ proposals. As nonmembers, the press and public could not vote on such proposals or speak in support or against such proposals even if they were to attend NEPOOL meetings,” the commission said. “Therefore, rules governing only attendance at NEPOOL meetings do not directly affect the filings brought before the commission in the way that membership rules that allow members to vote do.”

The commission also rejected arguments that press coverage of NEPOOL meetings could ease the burden of monitoring NEPOOL activities for smaller or prospective members.

“We are not convinced that easing the burden of monitoring these meetings can directly affect the outcome of NEPOOL proceedings. Even if reporting eases the burden of participating in NEPOOL, it does not enable participation; therefore, any effect it may have on jurisdictional rates is indirect,” the commission said.

Glick: Change the Rules

In his concurrence, Glick said that while he agreed with his colleagues on the jurisdictional issue, NEPOOL’s membership policies are “misguided” and should be changed.

“NEPOOL meetings address a broad range of important issues, including, among other things, the reliability of the electric grid, state policies for addressing climate change, and the integration of new technologies into the resource mix. The public and, by extension, the press have a legitimate interest in how NEPOOL, the entity charged with administering ISO New England’s stakeholder process, is considering these matters of public interest.

“Although I appreciate NEPOOL’s concern about preserving a forum for candid discussion, I am troubled by NEPOOL’s apparent belief that closed-door meetings with no opportunity for public involvement or education through the press furthers the mission of the stakeholder process or the broader interests at play in these proceedings,” Glick continued. “To paraphrase Justice Louis Brandeis, sunlight is the best disinfectant, and it is hard for me to understand how barring public and press scrutiny will further NEPOOL’s mission or, ultimately, its legitimacy as the forum for considering how ISO New England’s actions affect its stakeholders. Rather than trying to hide their discussions from the public, NEPOOL and its members would be better served by permitting public and press attendance, so that all entities — including those that cannot spend the time or money needed to attend all NEPOOL meetings — can remain informed of the discussions regarding the important issues under NEPOOL’s purview. That result would lead to a more robust discussion of the issues and, ultimately, to better public policy.”

New Hampshire Consumer Advocate D. Maurice Kreis, a former journalist, said in a blog post he had turned his photo of Brandeis upside down in protest of FERC’s ruling, which he said “hobbles my ability to participate in NEPOOL effectively.

“There are 15 days of NEPOOL meetings on the calendar for April. … If you’re a big transmission owner like Eversource or a big generation conglomerate like Exelon (owner of Mystic Station), you have the resources to staff all of these NEPOOL meetings as necessary.  My tiny organization — we have five employees and a bit of consulting help — does not.”

“NEPOOL is a gentlemen’s club straight out of the 1880s, a time when financiers like J.P. Morgan determined the course of the U.S. economy behind closed doors,” he added. “… NEPOOL is doing the public’s business and its meetings should therefore be public.”

While the two cases were pending, six members of New England’s Senate delegation and a dozen members of the House of Representatives called on the commission to open the meetings. (See New England Senators Urge FERC to End Press Ban.)

Gag Rule

NEPOOL’s Participants Committee conditioned Kuser’s admission on compliance with its bylaws, which were rewritten in June 2018 in response to his application.

NEPOOL said the revisions were intended to codify a longstanding practice barring disclosure of meeting proceedings to nonmembers. But they also appear to carve out an exception for members who are not members of the press.

Section 5.6(a)(ii) states that:

“Attendees may use the information received in discussion, and may share the information received within their respective organizations or with those they represent, provided those who receive such communications are not press and also are aware of and agree to respect the nonpublic nature of the information. In no event may attendees reveal publicly the identity or the affiliation (other than sector affiliation) of those participating in meeting discussions…”

Members who violate the provision, the bylaws state, will have their attendance privileges revoked.