The time has come for an Office of Public Participation in the Federal Energy Regulatory Commission.

In 1978, the Congress directed the Federal Energy Regulatory Commission (FERC) to create an Office of Public Participation (OPP) to improve the public’s ability to influence energy policy. For more than four decades, FERC took no steps to create or staff such an office. Today, however, the OPP finally seems to be on the verge of being born. Last December, the Congress educated FERC is due to file a report by the end of June 2021 detailing its progress towards establishing a PPO.

Creating an office that successfully enhances public participation in the obscure and technocratic world of energy regulation will not be an easy task. But just because FERC’s procedures are technical doesn’t mean they don’t have a dramatic impact on people’s lives. As evidenced by the testimonies delivered during the spring of 2021 of the FERC listening sessions In his new office, landowners facing the prospect of natural gas pipelines located across their property and communities disproportionately carrying a century and more of fossil fuel infrastructure with brutal health and environmental consequences include fully understand the broad consequences of FERC’s decisions – even if they do not feel well equipped at present to engage with the agency.

Fortunately, previous research on agency involvement offers some benchmarks for FERC’s efforts to create effective public engagement in energy policy. A central consideration will be who the OPP should seek to engage; another will be How? ‘Or’ What.

The implied 1978 law load, in asking FERC to involve “the public”, aimed for the agency to mobilize new and broader interest groups than those that have traditionally participated in FERC. Especially considering the new FERC president Richard Glick accentuation On energy and environmental justice, the OPP should prioritize engaging historically marginalized communities and communities disproportionately overburdened by energy infrastructure. In this regard, there will be both an “external translation” function and an “inbound translation” function that the OPP could play.

“Translate” refers to activities the OPP may undertake to make FERC technocratic procedures understandable and relevant to the public. Beyond basic improvements in terms of ease of response and feedback, the OPP could also provide training, briefing materials for lay people and designated contact persons for important procedures. Based on recommendations Posted in 2018 by the United States Administrative Conference (ACUS), the OPP may also hire field staff, trained in grassroots engagement, who can work to build relationships with under-represented groups at FERC .

“Translating to” will be an equally important role for an effective OPP. The researchers have find that when “implied” stakeholders engage in federal rule-making, they often provide what is called “situated knowledge” – or knowledge that flows from lived reality. These stakeholders raise very relevant questions, but they do so in a different language and framing from industry stakeholders or repeat stakeholders. OPP staff could point out to Commissioners and their staff the ways in which these non-industry stakeholders speak out on key issues in proceedings.

In doing so, there may be good reasons for OPP staff to avoid taking on direct advocacy roles that subject them to ex parte restrictions. Perhaps, however, it might be useful to ‘translate’ without forcing staff to cross advocacy boundaries, including through non-procedural training sessions and ongoing discussions within FERC on the role of knowledge situated in the agency’s mission. Localized knowledge will be particularly important as FERC examines how to better integrate environmental equity and justice into its operations and frameworks.

FERC will also need to carefully consider the when participation. Search Consistently shows earlier participation is more valuable, at a stage before a proposal for a project or rule is formally submitted to the Commission.

In the case of electricity-related proceedings at FERC, time is often synonymous with place. Like I have Explain In detail elsewhere, the predominant model of grid governance in the United States delegates considerable authority to member-based regional transport organizations (RTOs) to develop energy market rules and tariffs through governance processes. internal, all before filing these rules and tariffs for approval by the FERC. Once RTOs file applications for approval of new rules and tariffs, the Commission is constrained by respectful standards of review and restrictive judicial precedents in its ability to shape those proposals. For this reason, the OPP should also focus on improving participation and transparency in notoriously opaque regional governance processes.

It will also be essential for FERC to link increased public participation with substantial commitment to reform. At best, the OPP could help the FERC receive a host of new and valuable insights into how to interpret and apply the Commission’s broad and malleable legislative authority charges, such as its demands for ensure “fair and reasonable” prices and Make decisions based on “public convenience and necessity”.

FERC must take seriously the expanded contribution that the OPP should facilitate. Researchers caution strongly against government officials encouraging public participation which they do not really appreciate, thus “peddling democratic snake oil” which is likely to disenchant participants over time and damage the reputation of an organization. agency.

This risk argues for two additional roles for the OPP in public engagement efforts. First, the Ontario Provincial Police should make clear to the public the instances – and even the specific issues within the proceedings – in which the Commission believes that the public’s contribution would be most beneficial. In doing so, FERC could build on similar efforts by other agencies, including the US Department of Transportation and the Environmental Protection Agency, as described in a 2018 report. report to ACUS on improving public engagement in rule making. Second, the Board, assisted by the OPP, should clearly communicate to public interveners how their input shaped Board decisions, beyond simply including pro forma responses to comments bundled into orders of several hundred. pages.

Although the OPP has been too long in coming, office time has never been more ripe. The energy system is at a time of deep contestation. As many fossil fuel companies struggle fiercely to maintain their market share in a world where costs are so high. renewable energy and rage climate change, many communities are developing their own powerful visions for a cleaner, more distributed and fairer energy system. FERC policy shapes the potential of such visions in critical but often difficult to discern ways. Bringing these links to the fore, in order to foster deeper democratic engagement in FERC, should be a central objective of the OPP.

Shelley welton is Associate Professor of Law at the University of South Carolina School of Law.

This essay has been adapted from the remarks of Professor Welton delivered during a FERC workshop held on April 16, 2021, to discuss the agency’s Office of Public Participation.