Transmission Politics

Coming across common themes over and over tells me something... maybe I should write about it?

I've seen a whole bunch lately about the politics of transmission line proposals, more precisely how politics affects the state public utility commission process.

This morning, I read something that pushed the issue into blog post status.

Iowa Governor Terry Branstad has warned his state legislature not to interfere in the business of the Iowa Utilities Board.

Branstad, who appoints the members of the utilities board, warned against "political interference" into the administrative review process by which a pipeline carrying Bakken crude oil and a transmission line transporting wind-generated electricity could be approved.

"It would be mistake to get politics into this," Branstad said. "We should abide by the processes that have been put in place."

Maybe Branstad doesn't understand those "processes?"  Our government is separated into three branches:  The Executive Branch carries out existing laws and recommends (but does not alone create) new ones.  It administers our government.  The Legislative Branch makes laws, at the will of the people it represents.  The Judicial Branch interprets existing laws.  Branstad is a member of the executive branch.  The Iowa legislature is a member of the legislative branch.  The IUB is a member of the judicial branch, although unlike a regular court, a utility board can make up copious rules about how they're going to carry out the laws made by the legislative branch.  Trying to figure out which one is more powerful is an exercise in futility... and politics.

Branstad, as Governor, appoints the members of the IUB.  This is a political process.  A member of the executive branch will appoint those he believes will carry out his mission.  Once appointed, IUB members are supposed to serve independently as they interpret utility laws, however, a crafty governor can control this process by allowing appointments to expire while the incumbents continue to serve at the daily whim of the governor, who can remove the incumbent and replace him at any time.  I have no idea if this is the situation in Iowa, but I have seen just this situation perpetuate in several states.  When it happens, the judicial branch comes under the thumb of the executive branch and can be easily influenced to make certain decisions on a political basis in order to remain in place.

The legislature makes the laws that direct the actions of an independent, quasi-judicial utility board.  The judicial branch cannot create laws, but receives its marching orders from the legislative branch.  If the legislature is displeased by the actions of the Board, it can make new laws to shape the decisions of the Board.  In this way, the legislature can influence the judicial branch.  However, there's more protection on this side of the coin, because the legislative branch is operating at the will of the people, and must obtain consensus from many to create new laws.

I don't know why Branstad believes it's not already "political."  The state utility board process is about as political as it gets.  While he warns the legislature not to get involved in a situation he controls, what the legislature eventually does will be political.  It's all political!

So, if you want to influence your state utility board process, you must engage in politics.  You can talk to your legislators to gain their support to make new laws that guide the decisions the utility board makes.  You should probably talk to your governor about refraining from getting involved in the utility board processes.  Branstad has it completely backwards!

Politics is described as:

the activities associated with the governance of a country or other area, esp. the debate or conflict among individuals or parties having or hoping to achieve power:

Companies proposing new transmission projects hope to influence the judicial process as much as individuals or groups opposing the transmission project.  In order to do so, they push the legislative or executive branch to shape the judicial decision.  Despite plenty of denial, the judicial processes of a utility board are heavily influenced by politics.  It's the reason transmission developers spend so much lobbying your representatives to support their projects AGAINST YOUR WISHES!

Public opinion drives political decisions.  A legislator is carrying out the will of the people.  If enough people become involved in a utility board process, they can shape the process through their legislators, who may be more interested in their duty to the people than the free lunches and campaign contributions transmission corporations provide.  The bigger the public push back, the better your chances.

Transmission developers also court other groups and individuals to take a position supporting their proposal.  Sometimes a quid pro quo situation develops.  This happens because a utility board is unlikely to approve even the best project if it is under political fire not to do so, therefore the transmission developer needs allies to create, at least, an appearance of support.

So, can a large, loud uprising of the people affect the decision of a utility board?  You bet'cha!  But don't get confused by the difference between public opinion and public comment.

Public opinion is an aggregate of public comment.  The public comments citizens make to a utility board, in isolation, rarely drive the decision of the Board because they are typically not based on legal arguments about the laws the Board must follow in its findings.

Utility law guru Scott Hempling recently pondered the effectiveness of public comments in his monthly essay.  This month, he featured several questions that he will use as projects for his utility law students.  Here's one:

Engaging the public:  Candor requires an admission:  The lay citizenry's views do not count as "substantial evidence," required by courts to sustain agency orders.  Does that fact make public hearings (i.e., the non-technical hearings) shams?  If not, then what is the value of public participation?  What are ways to create that value, at reasonable cost?   Traditionally, agencies announced public hearings in the newspaper's "legal notices."  How useful is that approach today?  What are an agency's responsibilities to educate the public and seek its views?

The "substantial evidence" Hempling mentions must come through the legal process, either through an attorney or individuals acting pro se.  While a utility board's decision is politically-driven, it must back up its decision on a legal basis.  The utility provides its proposed legal basis for approval through the evidentiary hearing process.  Opposition must therefore provide its own legal basis for denial in this same venue.  The utility board, thus armed, can choose from whichever body of evidence it needs to to back up its decision (and hopefully make it stick.)  It's pretty hard to make a decision that's not legally sound stick through appeals.  It would be doubly-hard for a utility board to make a decision that denies evidence of future reliability issues coming from a supposedly independent third party, such as a regional transmission organization.  Therefore, a utility or RTO may choose to find new information upon which to withdraw its proposal, instead of forcing a utility board into a denial.  But, again, this is a political process that takes place that allows utilities to withdraw and save face (and money, but that's another story).

So while your own individual comment may not carry much legal weight, when combined with the comments of thousands of others, it is a very powerful, political tool!

If Branstad truly wants to keep "politics" out of utility board decisions in Iowa, he should start a little closer to home.  The legislature, as the body tasked with making laws, can make any laws it chooses, whether Branstad likes them or not.  Sure, he could veto a new law, but doing so to a new law widely supported by the people would come at his own political peril.

"Never doubt that a small group of thoughtful, committed citizens can change the world;
indeed, it's the only thing that ever has."
- Margaret Mead