Will The Public Actually Get To Participate At FERC?

If you don't know "WTF" FERC does, should you participate in its proceedings?

Not knowing "WTF" FERC does hasn't stopped self-appointed "consumer advocates" like Public Citizen from weighing in at FERC on numerous proceedings in recent memory... and losing.

Now Public Citizen is all excited that Congress has directed FERC to submit a report with a plan for an Office of Public Participation.  Let's hope Public Citizen is first in line to learn exactly "WTF" FERC does so that it could do better in the future and quit wasting FERC's time with complaints that go no where.  But it seems more like Public Citizen is more excited about being first in line to score some public funding for its bleary and uninspired FERC filings.  They sure do spend a lot of time talking about funding in this article.  And they've sure spent a lot of time talking about the funding in the past.

But what has Congress done?  If you search for "Office of Public Participation" in the actual legislation, you get nada.  It's only in the "Explanatory Statement" that the office arises.  It says:

FERC is directed to submit to the Committees on Appropriations of both Houses of Congress not later than 180 days after enactment of this Act a report detailing how it will establish and operate the Office of Public Participation required under section 319 of the Federal Power Act, beginning in fiscal year 2022. As part of the report, FERC shall provide an organizational structure and budget for the office sufficient to carry out its statutory obligations. The report shall assume that funding for the Office of Public Participation will be derived through annual charges and filing fees as authorized by the Federal Power Act and the Omnibus Budget Reconciliation Act of 1986.

Oh, a report.  It doesn't actually establish the office.  That was done back in 1978, but it never happened because there was no funding.  Now Congress says FERC should assume the funding will be provided by charging fees to the entities it regulates, which is where FERC gets all its funding.  FERC's annual budget is recovered from the entities it regulates through fees.  FERC actually costs taxpayers nothing.  So, if additional funding is needed for this office, the fees must increase, or other spending must be decreased.  How much bellyaching is there going to be about funding?

And what exactly is an "explanatory statement" and why does it matter?

The intent of an “Explanatory Statement,” sometimes called “Report Language” is to emphasize, or clarify “Legislative Language.” All Divisions shall comply with the directives, reporting requirements, instructions and allocations within the specified time frames unless specifically addressed to the contrary in their particular Division “Explanatory Statement.” The Executive Branch of the Government could choose to ignore Directives. Rarely do Government Agencies fail to comply as they may face substantial repercussions.

So there is no new legislation.  The legislation remains as it was in 1978.

(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.

It's not really a cash register for public participation.  Here's the thing... in order to be compensated, you have to win, and you have to substantially contribute to that win.  However, you'd have to spend the money up front without knowing whether or not you'd win.  Then you'd have to make a case why your participation was a hardship AFTER you'd spent the money to participate.  I can understand why a landowner affected by an energy project would be able to make that case, but some public interest group would not.  Therefore, it's NOT a fountain of funding for groups like Public Citizen.  But I kind of get the feeling that these groups are going to whine and cavort until they get their piece of the pie.

Public funding for intervenors sounds like a really good thing.  However, it rarely is, in practice.  Friends in Wisconsin tell me that the available public funding for intervention at the state Public Service Commission is regularly scooped up by various "public interest groups" who participate in the case TO SUPPORT THE UTILITY!  Landowners affected by the proposed energy project rarely receive funding for their efforts.  This isn't an opportunity to give affected people a voice in the process, it's a cash cow for sophisticated groups who have experience scoring grants and other free cash available for those who know how to write applications for free cash.

My expectations for FERC's Office of Public Participation?  If it ever gets off the ground, it will serve funding-savvy public interest groups, and not the disenfranchised folks on the front lines of the energy war.  They will still not know "WTF" FERC does, and will have no recourse but to continue their efforts to simply shout at FERC and disrupt its meetings.  What a complete waste of time and money.