Warning... this is going to be a long one. Like a terrifying octopus, this issue has tentacles going in all directions. Hopefully I can follow them all, so that you, little consumer, can follow along and perhaps act in your own interests down the road.
Let's start with the good news -- FERC has approved ratepayer funding for the Consumer Advocates of the PJM States (CAPS) to participate in PJM matters. This is good news for consumers in the PJM region who don't have time or inclination to participate in PJM's countless stakeholder proceedings. CAPS is made up of "state advocate offices designated by the laws of their respective jurisdictions to represent the interests of utility consumers within the service territory of PJM...". These state consumer advocates are overworked and underfunded for all they do on behalf of residential electric customers.
One caveat in the Order, however, says that CAPS funding may only be used for "staffing and travel costs for state consumer advocates to participate in in-person meetings and other proceedings at PJM as well as to pay professional staff and operation of the CAPS organization." This also includes "participation in other Commission activities, such as responding to Notices of Proposed Rulemakings and participating in Technical Conferences." CAPS funding may not be used for "(1) activities related to proceedings of state agencies; (2) proceedings at federal agencies other than the Commission; (3) litigation of matters at the Commission arising from the filing of Tariff or Operating Agreement changes by PJM including the filing of interventions or protests or participation in hearings or settlements; or (4) the hiring of counsel or expert witnesses to support the filings of other parties."
However, Commissioner Tony Clark dissented, stating:
Let's start with the good news -- FERC has approved ratepayer funding for the Consumer Advocates of the PJM States (CAPS) to participate in PJM matters. This is good news for consumers in the PJM region who don't have time or inclination to participate in PJM's countless stakeholder proceedings. CAPS is made up of "state advocate offices designated by the laws of their respective jurisdictions to represent the interests of utility consumers within the service territory of PJM...". These state consumer advocates are overworked and underfunded for all they do on behalf of residential electric customers.
One caveat in the Order, however, says that CAPS funding may only be used for "staffing and travel costs for state consumer advocates to participate in in-person meetings and other proceedings at PJM as well as to pay professional staff and operation of the CAPS organization." This also includes "participation in other Commission activities, such as responding to Notices of Proposed Rulemakings and participating in Technical Conferences." CAPS funding may not be used for "(1) activities related to proceedings of state agencies; (2) proceedings at federal agencies other than the Commission; (3) litigation of matters at the Commission arising from the filing of Tariff or Operating Agreement changes by PJM including the filing of interventions or protests or participation in hearings or settlements; or (4) the hiring of counsel or expert witnesses to support the filings of other parties."
However, Commissioner Tony Clark dissented, stating:
This Commission has not before endorsed the policy that the activities of non-decisional
intervenor groups be funded through a dedicated utility tariff under the auspices of the FPA. Yet here we are doing exactly that. Today’s order is couched in the language of
good intentions, but I find it troubling precedent as both a matter of policy and prudence.
Commissioner Clark said that this Order "cracks open Pandora's box," and before the ink was even dry on the Order and the Dissent, that's exactly what happened. Clark wondered:
My public policy concern is that there is little that meaningfully differentiates these
organizations from a myriad of other state agencies and not-for-profit governmental
organizations or other interest groups that will now say, “what about my piece of the
pie?” CAPS entities argue they are uniquely situated. But aren’t state energy offices, in
their own way, also uniquely situated? What about state departments of environmental
quality? Do they, too, deserve a Regional Transmission Organization (RTO) funded
organization to finance their participation in stakeholder meetings? Furthermore, given
that CAPS includes at least one non-governmental non-profit, we now have cracked-open the lid of Pandora’s Box just a little wider yet. What is to stop any of the countless groups that intersect with the regulatory world from arguing that they are also uniquely situated to speak for any number of communities of interest?
Which brings us to... Monday, when the very PIGs (Public Interest Groups) Commissioner Clark was concerned about filed a rulemaking petition looking for their own piece of the pie.
It's no secret that Public Citizen has been harping on FERC for years to set up the Office of Public Participation which was authorized by Congress back in 1978. That's 38 years ago, folks. And Public Citizen just now thought about filing a Petition for Rulemaking? That's some stellar FERC work right there! Thirty eight years ago, a leisure-suited Congress authorized such an office, along with a funding stream to compensate "persons under this subsection" through the year 1981. What is new is that Public Citizen now wants its piece of the "person" pie! And Public Citizen has brought along an entire herd of hungry PIGs to gobble up what it believes should now be a $6.5M yearly pie. The petition was signed by 31 self-appointed PIG "advocates" for consumers and the environment, and not a state advocate office designated by the laws of their respective jurisdictions to represent the interests of utility consumers in the bunch.
The hungry PIGs are a hodge-podge of "consumer interest" groups you've never heard of, environmental organizations, "coalitions," "projects," "centers," "councils," "institutes," "partnerships," and an "investment corporation." I've never seen many of these groups doing much of anything at FERC, and I haven't seen them litigating actual rate cases that save consumers real money. The few I have seen poking their stick into the FERC lion cage are more interested in policy issues, such as championing environmental interests before the Commission. These organizations are already very well funded through grants and gifts to advocate for the environment. Do they deserve public money for carrying out their political goals? These aren't public interest groups, they're specialty interest groups.
Let's look at just a couple on the list. Public Citizen describes its climate and energy program as: "Public Citizen's energy and climate program advocates for affordable, clean and sustainable energy. We safeguard families by promoting the strong regulation of energy markets, educate the public on the dangers of continued reliance on dirty energy sources, help solve climate change by promoting localized clean energy alternatives and hold large energy corporations accountable by exposing wrongdoing." The group's Form 990s available here and here describe their Energy Program as: "Provides information to the public on the threat of catastrophic climate change, the dangers of nuclear and fossil fuels, and the opportunities available to advance energy efficiency and develop renewable energy solutions." And they show a whole lot of income from mysteriously unnamed donors, and grants to clean energy programs. And they also show that Public Citizen has its fingers in a whole lot of political issue pies, not just energy. Their "Accomplishments" page is devoid of any victories at FERC. I'm not convinced that Public Citizen is substantially contributing to important issues at the Commission, or that any participation by Public Citizen presents a "financial hardship" for their "person."
At the other end of the PIG roll, A World Institute for a Sustainable Humanity describes itself as: "A World Institute for a Sustainable Humanity (A W.I.S.H.) is an international nonprofit organization whose mission is to provide models and support for life sustaining activities that integrate solutions to poverty and the environment while fostering self-reliance. It was founded in March of 1995 and is registered as an NGO in fourteen countries and states." A search of FERC's eLibrary for this organization brings up nada. I'm not convinced they have ever done anything at FERC that contributed to any substantial issues.
This seems more like a "build the funding and they will come" pipe dream.
It's no secret that Public Citizen has been harping on FERC for years to set up the Office of Public Participation which was authorized by Congress back in 1978. That's 38 years ago, folks. And Public Citizen just now thought about filing a Petition for Rulemaking? That's some stellar FERC work right there! Thirty eight years ago, a leisure-suited Congress authorized such an office, along with a funding stream to compensate "persons under this subsection" through the year 1981. What is new is that Public Citizen now wants its piece of the "person" pie! And Public Citizen has brought along an entire herd of hungry PIGs to gobble up what it believes should now be a $6.5M yearly pie. The petition was signed by 31 self-appointed PIG "advocates" for consumers and the environment, and not a state advocate office designated by the laws of their respective jurisdictions to represent the interests of utility consumers in the bunch.
The hungry PIGs are a hodge-podge of "consumer interest" groups you've never heard of, environmental organizations, "coalitions," "projects," "centers," "councils," "institutes," "partnerships," and an "investment corporation." I've never seen many of these groups doing much of anything at FERC, and I haven't seen them litigating actual rate cases that save consumers real money. The few I have seen poking their stick into the FERC lion cage are more interested in policy issues, such as championing environmental interests before the Commission. These organizations are already very well funded through grants and gifts to advocate for the environment. Do they deserve public money for carrying out their political goals? These aren't public interest groups, they're specialty interest groups.
Let's look at just a couple on the list. Public Citizen describes its climate and energy program as: "Public Citizen's energy and climate program advocates for affordable, clean and sustainable energy. We safeguard families by promoting the strong regulation of energy markets, educate the public on the dangers of continued reliance on dirty energy sources, help solve climate change by promoting localized clean energy alternatives and hold large energy corporations accountable by exposing wrongdoing." The group's Form 990s available here and here describe their Energy Program as: "Provides information to the public on the threat of catastrophic climate change, the dangers of nuclear and fossil fuels, and the opportunities available to advance energy efficiency and develop renewable energy solutions." And they show a whole lot of income from mysteriously unnamed donors, and grants to clean energy programs. And they also show that Public Citizen has its fingers in a whole lot of political issue pies, not just energy. Their "Accomplishments" page is devoid of any victories at FERC. I'm not convinced that Public Citizen is substantially contributing to important issues at the Commission, or that any participation by Public Citizen presents a "financial hardship" for their "person."
At the other end of the PIG roll, A World Institute for a Sustainable Humanity describes itself as: "A World Institute for a Sustainable Humanity (A W.I.S.H.) is an international nonprofit organization whose mission is to provide models and support for life sustaining activities that integrate solutions to poverty and the environment while fostering self-reliance. It was founded in March of 1995 and is registered as an NGO in fourteen countries and states." A search of FERC's eLibrary for this organization brings up nada. I'm not convinced they have ever done anything at FERC that contributed to any substantial issues.
This seems more like a "build the funding and they will come" pipe dream.
So, what does the 1978 law say, anyhow?
(a)
(1) There shall be an office in the Commission to be known as the Office of Public Participation (hereinafter in this section referred to as the “Office”).
(2)
(A) The Office shall be administered by a Director. The Director shall be appointed by the Chairman with the approval of the Commission. The Director may be removed during his term of office by the Chairman, with the approval of the Commission, only for inefficiency, neglect of duty, or malfeasance in office.
(B) The term of office of the Director shall be 4 years. The Director shall be responsible for the discharge of the functions and duties of the Office. He shall be appointed and compensated at a rate not in excess of the maximum rate prescribed for GS–18 of the General Schedule under section 5332 of title 5.
(3) The Director may appoint, and assign the duties of, employees of such Office, and with the concurrence of the Commission he may fix the compensation of such employees and procure temporary and intermittent services to the same extent as is authorized under section 3109 of title 5.
(b)
(1) The Director shall coordinate assistance to the public with respect to authorities exercised by the Commission. The Director shall also coordinate assistance available to persons intervening or participating or proposing to intervene or participate in proceedings before the Commission.
(2) The Commission may, under rules promulgated by it, provide compensation for reasonable attorney’s fees, expert witness fees, and other costs of intervening or participating in any proceeding before the Commission to any person whose intervention or participation substantially contributed to the approval, in whole or in part, of a position advocated by such person. Such compensation may be paid only if the Commission has determined that--
(A) the proceeding is significant, and
(B) such person’s intervention or participation in such proceeding without receipt of compensation constitutes a significant financial hardship to him.
(3) Nothing in this subsection affects or restricts any rights of any intervenor or participant under any other applicable law or rule of law.
(4) There are authorized to be appropriated to the Secretary of Energy to be used by the Office for purposes of compensation of persons under the provisions of this subsection not to exceed $500,000 for the fiscal year 1978, not to exceed $2,000,000 for the fiscal year 1979, not to exceed $2,200,000 for the fiscal year 1980, and not to exceed $2,400,000 for the fiscal year 1981.
So, any funding to "persons" is contingent upon the participation substantially contributing the approval of that person's position. This is not an advance funding free-for-all for PIGs to suddenly access funds to create their own offices to participate in FERC ratemaking. Funding only comes AFTER a "person" wins a case. The proceeding also must be "significant," whatever FERC wants to presume that to be. Such "person's" participation must also present a "financial hardship." That's a conundrum. If a person can only collect funding after their position is approved by the Commission, then said "person" would have already spent the money to participate, without knowing in advance if they will prevail, or whether the proceeding is "significant." If the money has been spent without promise of funding, then how could the "person" then make a case of financial hardship? If it's a true financial hardship, they'd never be able to participate in the first place. For real people, every dollar they spend on lawyers and experts is one dollar less they can spend on hot dogs and tickets to the ball game.
Public Citizen then goes on to quote the Congressional Record from 1978, which makes clear that Congress intended this public participation to come from "electric consumers," or "individuals." I don't see anything in there about PIGs. After all, any "person" could declare that their efforts were "for consumers," and attempt to score some public funding for participating at the Commission, even utilities, or utility industry coalitions or associations, such as EEI. Who knows what will pop out of Pandora's box?
Case in point... after blathering on about how the idea for the Office of Public Participation was based on public participation by electric ratepayers, in ratemaking, Public Citizen says this:
Public Citizen then goes on to quote the Congressional Record from 1978, which makes clear that Congress intended this public participation to come from "electric consumers," or "individuals." I don't see anything in there about PIGs. After all, any "person" could declare that their efforts were "for consumers," and attempt to score some public funding for participating at the Commission, even utilities, or utility industry coalitions or associations, such as EEI. Who knows what will pop out of Pandora's box?
Case in point... after blathering on about how the idea for the Office of Public Participation was based on public participation by electric ratepayers, in ratemaking, Public Citizen says this:
The Office of Public Participation is also needed to provide support to communities involved with FERC-jurisdictional hydro and natural gas infrastructure proposals.
Funny that. The Delaware Riverkeeper Network also used FERC's failure to create the Office of Public Participation and fund intervenor costs as an example of FERC's "bias" in its recent lawsuit filed against the Commission in U.S. District Court. While I have the utmost sympathy for individuals personally affected by fracking and pipelines, I have no respect for the environmental groups who use these folks as battering rams to accomplish their environmental goals. That lawsuit was painful to read and I can't imagine a court wasting much time on it. Just because funding for FERC's gas program comes from gas companies does not create bias. The annual costs for the program are allocated to gas companies based on their usage. The Commission would be funded whether or not they approved new pipeline applications, because gas will continue to flow. Adding new pipelines to the stable simply spreads out the costs among a larger herd. It does not increase FERC's "take," nor pay dividends to FERC employees to approve pipelines. The continual attacks on FERC (both judicial and in person at the facility) aren't helping the cause. About the only good argument in the whole lawsuit relates to requests for rehearing, and FERC has already handled that. And that's oftentime the problem with environmental and other group participation that comes from "outside" FERC's little specialty practice arena. It can be clueless about process, laws, and even FERC's jurisdiction to act in the first place. I'm not sure adding more misinformed voices to the shuffle is prudent or helpful. If you want to participate at FERC, make it meaningful. Don't just carry on at monthly meetings, interrupting every other hearing underway in the building, because you're angry and unsatisfied with your own ignorance of the process. Educate yourself!
And be careful what you wish for. In discussions with grassroots groups in states with a mechanism for intervenor funding for participation in public utility cases, the same complaint comes up over and over. They allege that well-heeled and well-connected PIGs are always first in line at the funding trough, and there is precious little left over for the folks who are actually on the front lines of energy projects and rate increases. Oftentimes the PIGs use their funding to weigh in on the side of the utilities, especially to enable construction of renewable energy infrastructure. PIGs don't care about you, little ratepayer or landowner. They really don't.
Funding PIGs to carry on in a nonsensical manner at FERC is a bad idea. Let's see if FERC actually notices a proposed rulemaking on this issue, or simply bats it aside as more PIG mischief.
And be careful what you wish for. In discussions with grassroots groups in states with a mechanism for intervenor funding for participation in public utility cases, the same complaint comes up over and over. They allege that well-heeled and well-connected PIGs are always first in line at the funding trough, and there is precious little left over for the folks who are actually on the front lines of energy projects and rate increases. Oftentimes the PIGs use their funding to weigh in on the side of the utilities, especially to enable construction of renewable energy infrastructure. PIGs don't care about you, little ratepayer or landowner. They really don't.
Funding PIGs to carry on in a nonsensical manner at FERC is a bad idea. Let's see if FERC actually notices a proposed rulemaking on this issue, or simply bats it aside as more PIG mischief.
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