If you’ve heard of the Federal Energy Regulatory Commission, commonly referred to as FERC, but have no idea what it does, I don’t blame you. FERC is one of the most arcane government agencies we have in the United States. Generally tasked with regulating interstate energy infrastructure like pipelines, its proceedings are incredibly technical and confusing — just ask Tyson Slocum.
As director of the energy program for Public Citizen, a nonprofit consumer advocacy organization, Slocum says he is currently involved in more than 200 of FERC’s court-like cases, which are quietly shaping the energy landscape in the United States. There are cases about pipelines and transmission lines, electricity markets and the cost of renewable energy, hydroelectric dams, liquified natural gas plants, and more.
Due to the esoteric nature of these proceedings, which are filled with voices from the energy industry, Slocum says that in many of them he is the only party providing evidence and testimony on behalf of the public interest. But that could be about to change.
In December, Congress directed FERC to submit a plan to establish a new Office of Public Participation within the agency. The order was included in an explanatory statement attached to the coronavirus relief package. While the details have not yet been determined, the office is generally tasked with coordinating assistance, and potentially financial compensation, to people who are interested in participating in a FERC proceeding. After 20 years of dealing with the agency, Slocum is bullish on this new office’s potential.
“FERC is going to be one of the most important agencies in 2021 and beyond to address the climate crisis,” he told Grist. “And the Office of Public Participation, if it is well structured and well financed, can revolutionize public interest advocacy and democratize energy policymaking in the United States.”
Meaningfully participating in a FERC proceeding requires resources. Large environmental organizations with ample funding, like the Sierra Club and the Natural Resources Defense Council, often get involved in FERC cases. But smaller environmental justice groups and community organizations don’t always have the ability to hire lawyers or expert witnesses — they may not even know when a FERC decision could affect them.
In order to change that, Slocum says the new office should do two things. It should have a robust outreach arm that actively approaches parties who could be affected by a FERC decision, like environmental justice organizations, tribes, and landowners, and offers technical support. It should also provide people with compensation for legal fees and other expenses they may need to incur in order to participate in a proceeding on equal footing with well-resourced utilities and other industry groups.
Public Citizen has been pushing for the creation of an Office of Public Participation for years after discovering that Congress had actually ordered FERC to establish one back in 1978. He credits the more than 40-year delay in part to pushback from industry. Jeff Dennis, a former director of policy development at FERC, told Grist it was likely because the office was never funded. Dennis said the new order from Congress doesn’t guarantee the office will be created, but it’s a strong directive to the agency to come up with a plan and budget to fulfill its historical mandate.
There is some precedent for how effective the new department could be. Several states have programs that compensate under-resourced intervenors who represent the public interest in public utility commission proceedings. California has a robust program that has doled out around $10 million per year for the last five years. The Greenlining Institute, a California-based nonprofit that voices the concerns of communities of color in utility proceedings, has been a major recipient of those funds. Technology equity director Paul Goodman told Grist the intervenor funding is critical to Greenlining’s work of fighting for the availability, affordability, and accessibility of utility services.
“It creates capacity for individuals and organizations to advocate on behalf of ratepayers,” he said. An audit of California’s program found that it successfully brought stakeholders representing a diversity of interests into commission decisions, and in some cases those voices saved utility customers hundreds of millions of dollars.
But Goodman said California’s program lacked good outreach — not many people are aware of it. That could also become a problem at FERC. Slocum’s idea for the new Office of Public Participation to include an active outreach arm with field operators in different parts of the country is predicated on a hypothetical staff of 18 to 20 people, he said — a tall order considering that Congress did not appropriate any new funding to FERC to create the new department. FERC operates entirely off of the annual charges and filing fees it collects from utilities, so it will have to figure out how to carve the department out of its existing budget.
In addition to how the new office will serve the public, there’s also a question who, exactly, it will serve. Dennis hopes that the new department will focus on bringing historically underrepresented communities such as communities of color to the table, but he said there are other potential beneficiaries too. Dennis is the managing director at Advanced Energy Economy, a clean energy business association, and says he spends a lot of time explaining to nascent renewable energy companies how FERC decisions could affect them. Even larger entities, like cities with clean energy targets enshrined in law, often focus their attention on state-level utility regulation but lack the expertise to understand how FERC decisions could help or hurt their goals.
For Slocum, there’s certainly a lot that could go wrong. “I’m worried about the office having a staff of two people and no money,” he said. But he’s optimistic that with a new FERC chairperson chosen by President-elect Joe Biden, there will be an opportunity for a cultural shift at the agency. Ultimately, he wants to see an Office of Public Participation not just at FERC, but at every government agency.
