4 Keys for a Successful FERC Office of Public Participation

The Federal Energy Regulatory Commission must keep four themes in mind as it establishes its Office of Public Participation. That’s the message of a new NRDC-commissioned report by MJ Bradley & Associates issued today.

Background

More than 40 years ago, Congress told FERC to do a better job of ensuring that the public had a say in its decisions. The nation’s top energy regulator never did, and, as a result, landowners were left in the dark before pipeline companies bulldozed their land, customers weren’t aware of obscure plans to bail out fossil fuel plants, and disadvantaged communities faced nearly insurmountable odds of stopping misguided projects.

FERC—perhaps the most obscure and technically dense agency in Washington (recent “FERCalicious” videos notwithstanding)—operated for and by industry insiders who knew how to successfully navigate the agency’s complex procedures.

But last December, Congress finally had enough of FERC’s inaction. It passed legislation prodding FERC to take steps to establish the office. With the new FERC chairman Rich Glick in charge, FERC began with soliciting public comment in February and officially launched the office in June. It is currently seeking applications for an initial director and expects the office to begin full operation in fiscal year 2024.

The MJ Bradley report, Establishing the Federal Energy Regulatory Commission Office of Public Participation: A Review of Stakeholder Input, examines the more than 12 hours of testimony and the over 100 written comments FERC received outlining suggestions for a successful office. Based on that review, the report outlines four key themes for FERC to consider during development.

The Recommendations

• The office must be independent and have the authority to actually influence FERC decisionmaking

Commenters, many of whom have personally experienced the FERC review process, overwhelmingly called on the agency to develop an office that moves “beyond a ‘box-checking’ or ‘rubber stamp’ exercise” and instead provides counsel to affected stakeholders while also being able to meaningfully inform FERC decisionmaking. To accomplish this, most recommended that the office serve as a “neutral, coordinating entity,” potentially under the review of a separate advisory board, that serves as a conduit between public participants and the commission.

• The office must increase the overall accessibility of FERC

Commenters nearly unanimously agreed that FERC’s existing procedures erect unnecessary barriers to public participation. Commenters called on the office to design a user-friendly website, develop templates for common filings, such as motions to intervene and requests for rehearing, manage initial contact with affected landowners, and hire field staff to build stronger relationships with affected communities.

• The office serves an essential role in leveling the playing field between the public and a project applicant

Commenters stressed the need for the office to be an accessible resource for educational, technical, and financial assistance that can assist public participants with developing and offering comments. Commenters suggested that the office offer public workshops and webinars and ample opportunity to meet one-on-one with staff. Further, the office should connect the public with data sources, lawyers, and other technical experts. Finally, many commenters highlighted the importance of providing intervenor compensation in recognition of the significant financial resources required for a high-quality FERC filing—costs that are frequently borne by low-income and environmental justice communities.

• The office is not a one-size-fits-all solution to improving stakeholder involvement

As the MJ Bradley report notes, while the office “can and should provide resources to all parties,” the needs of each stakeholder group are distinct and the office cannot serve as a substitute for other legally required consultations. For example, landowner commenters stressed more than any other group the need for early outreach and engagement regarding their legal rights. Environmental justice advocates highlighted the office’s role in improving outreach to marginalized communities, which in turn could improve FERC’s analysis of a project’s environmental justice impacts. Separately, while Indigenous tribes supported the office’s development, they also emphasized that they are not the general public, require separate government-to-government consultation, and therefore, the office cannot adequately address FERC’s outreach to tribal governments.

The Bottom Line

FERC creating the Office of Public Participation is both a long overdue and welcome development. The devil now will be in the details. As FERC continues to build out the office, it should keep these four themes in mind.