Can the FERC Be Made Accountable to Communities and the Environment?

Congress has directed the nation’s regulator for natural gas and electricity infrastructure to be more responsive to community and environmental concerns. Will FERC’s new Office of Public Participation deliver on the promise of public inclusion?

The Federal Energy Regulatory Commission increasingly finds itself at the center of controversy as momentum in the United States builds for a cleaner and more sustainable energy system.

As the regulator of the nation’s natural gas and electricity networks, the FERC’s job includes the review of applications for new gas pipelines and electric transmission, and FERC commissioners spend a great deal of time assessing the arguments of energy industry legal teams in favor of a given project.

Yet, some argue that the FERC has lost sight of what may be its most important role, which is to guard the public interest, including that of communities and landowners who are most directly affected by the development of energy infrastructure. In fact, community and environmental concerns often find it frustratingly complex, and expensive, to navigate the highly technocratic agency, with the result that public voices may not be adequately heard before the agency.

In response, in December Congress mandated that the FERC present a plan to establish an Office of Public Participation, with the goal to assist the public in taking part in complex FERC proceedings and ensuring that community and landowner concerns are taken into full account. Details of the plan are due to lawmakers by the end of June.

In the podcast Shelley Welton, associate professor at the University of South Carolina Law School, discusses the mandate of the Office of Public Participation, and the challenge of designing the office in a way that ensures that public views are not just voiced, but actively taken into FERC’s decision making process. She also explores why the public can find the FERC such a difficult agency to engage. You can read Welton’s comments to the FERC here.

Andy Stone: Welcome to the Energy Policy Now podcast from the Kleinman Center for Energy Policy at the University of Pennsylvania. I’m Andy Stone. The Federal Energy Regulatory Commission or FERC is one of those government agencies that few people have heard about, and many of those who have at best vaguely understand what the energy does. Yet the FERC increasingly finds itself at the center of conversation and controversy, as momentum in the United States builds for a cleaner and more sustainable energy system. The FERC is the regulator of the nation’s natural gas and electricity networks, both of which have much at stake in the transition to clean energy. A big part of the FERC’s job is to review applications for new gas pipelines and electric transmission.

FERC’s commissioners spend a great deal of time reviewing arguments from energy industry legal teams in favor of a given project. Yet some argue that the FERC has lost sight of one of its most important roles, which is to guard the public interest, including that of consumers in communities who are affected by energy projects but have often found it difficult to voice their concerns before the FERC. In response to these concerns, in December Congress gave the FERC a mandate to establish an Office of Public Participation. The Office’s role will be to assist the public in taking part in complex FERC proceedings, and it’s hoped ensure that the FERC adequately takes community concerns into account.

In today’s podcast, we’ll discuss the mandate of the Office of Public Participation and the need to design the office in a way that ensures public views are not only voiced but also heard by the agency. My guest is Shelley Welton, an Associate Professor of Law at the University of South Carolina Law School. Shelley’s work focuses on the impact of climate change on energy and environmental law. Shelley, welcome to the podcast.

Shelley Welton: Thanks so much for having me, Andy.

Stone: Let’s jump right in on this one. A few months ago Neil Chatterjee, who is one of the FERC’s five commissioners, stated that the days of FERC being an obscure energy agency are over. Can you give us a brief overview of the FERC’s role and why the agency has entered the public eye in the past few years?

Welton: Sure. As you mentioned in your introduction, the big job of FERC is regulating energy, infrastructure, and energy markets. And in particular, FERC is supposed to make sure that electricity and transmission rates are just and reasonable, and that it’s in the public interest to build new infrastructure like natural gas pipelines. The way that FERC tends to ensure that “just and reasonable” rates exist is that they oversee a series of regional electricity markets and regional grid operators, to make sure that the rules that they are establishing create just and reasonable rates.

So in terms of why the agency is coming more into the public eye — I think there are a few factors at work. One is that the way we’ve set up energy law in the United States, states are given control over their generation mix, the mix of resources they choose to use to make power. And lots of states now, concerned about climate change, have set very ambitious renewable energy goals. At the same time, we’ve got falling renewable energy costs, and we’ve got a host of new technologies coming on the scene like energy storage and small-scale renewable resources like rooftop solar and demand management technologies. This is all putting a lot of pressure on FERC as the regulator of electricity markets and the electricity grid to figure out how to integrate these new resources and to build the infrastructure that we need to keep the grid reliable and affordable under these changing conditions. I also think it’s putting pressure on the agency to reconsider the role of natural gas in the energy mix of the future. In particular, the new FERC Chair, Richard Glick is starting to urge more robust consideration of climate change, as the agency goes about natural gas infrastructure permitting.

Stone: The FERC has been accused of being a rubber stamp agency, and in fact it has approved 99% of proposals for gas pipelines and related gas infrastructure that have come before it. Critics have made the case that this shows that industry has too much influence before the FERC, while community interests are not being heard. To what extent is the deck stacked in industry’s favor before the FERC?

Welton: I don’t think that anyone would dispute that industry participates a lot more robustly at FERC than public interest organizations or other citizen representatives or citizens themselves. So I guess maybe the deeper question is: Are there people who should be participating who aren’t, or people who want to participate effectively who don’t get to? I think one data point that was really revealing on the answer to this question came out loud and clear during a series of listening sessions that FERC held this spring, as they started to think about how to create this Office of Public Participation.

In those sessions, you heard people, especially landowners, who had attempted to participate in natural gas pipeline permitting decisions really vent their frustration about how difficult it is to participate in these processes and how they feel out-resourced when they do participate. They feel like they’re unable to access and pay for the kind of expertise they would need to really go head-to-head with these companies. So I do think there’s a real public perception, backed up by data on actual participation rates, that industry has the upper hand in FERC proceedings.

Stone: What is the damage that these communities say has or could come to them from proposed infrastructure projects and resulting from their lack of getting their voices heard?

Welton: Yes, I think this varies on the natural gas side versus the electricity side. Maybe I could say a word about each. On the natural gas side, we’re talking mostly about affected landowners who are attempting to participate. These are deeply personal decisions because these are about whether or not a pipeline company may site a pipeline on their land and potentially either require a sale of the land or exercise eminent domain authority to claim the land. So when you’re talking about landowners, you’re talking about very, very personal decisions that have deep impacts on land that has often been in their family for generations.

There are others who are affected by these kinds of pipeline decisions who often are not getting much access to the proceedings, either. You might think about renters or people in communities near pipelines who don’t actually own land directly impacted by the pipeline. They are often left out of the discussion entirely but also might feel impacts.

And then there’s the electricity side of things, where I think it’s a little bit more obscure who exactly is being impacted, because people don’t often realize that rules that are made about these obscure electricity markets and transmission planning processes actually have big impacts, both on the cost of their monthly bill and also the types of resources that are being used to supply their electricity. So I think there is a range of groups out there that might be really interested in participating in FERC proceedings around electricity and transmission and might have some really valuable contributions to make, but who have trouble right now drawing the kinds of connections between these very obscure technical conversations and their on-the-ground priorities.

I’m thinking here about things like local environmental justice groups, who may really be prioritizing clean air and toxics and energy vulnerability, who may in turn have some really valuable contributions to give to FERC in terms of how decisions made at the federal level trickle down to impacts in these local communities.

Maybe I should just say a word about Native American tribes who’ve expressed a lot of frustration, as well, about the inadequacy of FERC consultation processes with tribes who are often also confronting a lot of infrastructure that crosses tribal lands or impacts tribal resources. The tribes have raised a lot of concerns that, even in an Office of Public Participation, isn’t going to fix the consultation challenges they have because tribal consultation is something different than public participation. It’s supposed to be a sovereign to sovereign interaction that they say is not happening appropriately.

Stone: I’d like to dive a little bit more deeply into some of the barriers here. You mentioned one of the issues that tribal communities face. More broadly as well, the FERC is extremely technocratic. It’s complex. I’ve been following it for a little over half a decade at this point. I still don’t understand half of the things that are going on, to be quite frank.

Welton: Agreed.

Stone: And somebody walks into the FERC, and it’s just going to be overwhelming. So tell us a little bit more about why the FERC is so difficult to navigate, particularly for somebody who has no experience with it?

Welton: Yes, when we think about a natural gas pipeline potentially-impacted landowner. They’ve probably maybe never had any exposure to FERC until a pipeline company tells them that they are planning to site a pipeline across their land. One of the things that landowners often complain about in this process is that FERC has charged the company that’s proposing to build the pipeline with having primary responsibility for outreach to land owners. So you can imagine there are some obvious incentives there on the part of the company not to be overly zealous in this role. And so land owners often say that they’re not given great information about how to effectively participate at FERC, the steps and the timing that they need to take to make sure that their voices are heard within the processes that give these natural gas companies their permits.

So I think there’s a real sense on that side that landowners aren’t adequately empowered to know how to be effective advocates around pipeline siting. And then I think some of this may be redundant of what I said in response to your last question, but on the electricity side, I think one of the real challenges is just that these are deeply technical discussions that require a lot of understanding of how the system works, how markets are constructed and dispatched in electricity. It’s unrealistic, I think, to have expectations that everyday citizens or even groups that are fighting hard for environmental justice on the ground would really be able to grasp and understand a lot of what’s going on, without an outlay of time that is just beyond the capacity of most groups that have other understandable pressing priorities.

And so I do think that one of the huge challenges for these groups has just been figuring out how to connect these very technical discussions to the actual concerns that their constituents bring to them on the ground. There are two ways that you could try to get at that. One is you could try to make the discussions less technical or more accessible somehow, or you could give these groups the kinds of ability to hire experts and advocates that companies already have. But obviously that requires resources that these groups currently don’t have, either.

Stone: So in December, Congress acknowledged all these problems around the lack of public participation before the FERC and mandated that the Office of Public Participation be established, and FERC has until June 25th to submit its plan for the Office to Congress. Can you give us a little bit more idea in broad strokes, what specifically the OPP is going to do, what it’s going to offer?

Welton: Yes, that’s a great question. In some ways that’s really the key question. I think it’s still an open question, what the office is going to do, even in broad strokes. I can say a little bit about what I think Congress envisioned for this office. In its original legislation back in 1978, it provided a few broad outlines as to what it wanted OPP to do. One thing it said is that the office is supposed to have a director who’s appointed by the FERC Chair, but the Director is somewhat independent. The Director has a four-year term and can only be fired for — I’m quoting here — “inefficiency, neglect of duty, or malfeasance in office.”

And then Congress told the director that the Office is supposed to do a few things. It’s supposed to coordinate assistance to the public and to persons intervening or participating before the Commission. So I read that as Congress telling the OPP to do something beyond just helping people who already want to intervene, since it’s supposed to also reach out more broadly to the public.

And then the other thing that that original statute did is it gave the Commission the authority, but it didn’t require that it could set up a program for intervener compensation to help pay parties for the cost of participating in FERC proceedings. Now that possibility has some limitations. Congress said you can only pay interveners in significant proceedings, where the person has basically substantially contributed to the decision that the Commission makes, and you have to have some demonstration of financial hardship.

So in broad brush strokes, I guess there are really two things that the OPP is likely to do. One is coordinate outreach and assistance to interveners and the public, and the second is administer some kind of intervener funding program.

Stone: Is there any precedent for that, where a government agency actually pays for certain groups to come and present their case before it?

Welton: There is. I wouldn’t say it’s common. I don’t know the exact number. I wish I did. But there are certainly some state public utility commissions around the country where they run intervener compensation programs that I think could be taken as precedent on which to build and learn from. California has probably the most famous intervener compensation program and the largest in the country. Michigan also runs one. So there is precedent.

The other precedent we might think about is back in the 1970s, part of the zeitgeist of the era in which this mandate for the office of participation was created was, I think, just a broader sense that there needed to be an opening of government to more citizen involvement, particularly as there were broader goals for government. If we think about the sweeping range of environmental statutes that were passed in the early 1970s, lots of them include a citizens’ suit provision that basically says, “Hey, people, we would like for you to be our partners in enforcing this new suite of environmental laws against violators, and many of those citizen suit provisions have provisions within them that allow for awarding of attorneys’ fees in the case of successful citizen suits.”

So I think that’s also a reasonable precedent to draw from in terms of what you might be trying to accomplish with this kind of compensation program.

Stone: I want to jump back to something you mentioned a few minutes ago, and that’s that the Office of Public Participation was originally actually mandated in 1978, although Congress just this last December said, “Hey, guys, you’ve got to actually go ahead and do this.” FERC never did anything about it, never established such an office over the intervening years. What are the changes that have happened, I guess, recently that have brought about FERC actually having to take action on this?

Welton: Yes, this is a really interesting question. It’s interesting because I think one of the biggest challenges for the Office of Public Participation, particularly given that independence of the director from the rest of the agency, is the question of how it’s going to fit within the broader agency structure and what role it’s going to play vis a vis the rest of the Commission.

So I think one of the reasons you haven’t seen FERC jump at the chance to staff up the OPP for 43 years now is that a powerful, robust OPP could be a threat to the strength of the commissioners themselves. If the Office drives an agenda that’s pretty different than what the commissioners want to see happen, and the Office has the backing of a strong public mandate, I think that creates a real tension for FERC. That may be why even this FERC didn’t independently take up the mantle of creating an OPP. It still had to be directed to do so by Congress. But the new Chairman of FERC, Chairman Glick has at least nominally embraced the idea of an OPP, and I wonder if that’s in part because he sees his agenda for change as having a pretty strong public mandate such that more participation might actually give him more grounds to advance what I would say is the more kind of climate-aware FERC that he would like to see emerge.

Stone: I want to jump into a spat that occurred at the FERC over the winter that demonstrates what you were just talking about right here. So Richard Glick is currently the Chairman of the Commission, but sometime in the winter, James Danly, who was briefly the Chair at the end of the Trump administration argued on this climate issue. Should climate change be a consideration when the FERC looks at proposals for natural gas pipelines, for example? Danly argued that the FERC didn’t have the tools at hand to adequately evaluate the greenhouse gas and climate impact of gas pipelines. And he urged gas and LNG companies to intervene to support their view. I think essentially what he was saying is to support this view that the FERC should not be looking at the climate impacts. Richard Glick responded very strongly. I’m going to read the quote here. I’m not making this language up.

Glick says, “I would say the same, not just for the pipeline companies, but for all the other people that have been screwed by the Commission.” So there is an argument going on at the FERC to the extent that these other issues should be going on. And that’s just kind of an illustration of really the fight that has been going on, right?

Welton: Yes, I think that’s absolutely right, and that captures really well, I think, the sense that Chair Glick has that if we brought in a broader range of voices, we might start to reconceptualize what it means for a pipeline to be in the public interest, and that maybe those voices would help us make the case for that. I should say take “us” out of that. If we brought in a broader range of voices, maybe it would help FERC reconceptualize what it means for a pipeline to be in the public interest.

I might just say I think there’s something broader driving Chair Glick in thinking about how to bring these concerns to the table. I think we’re just at a moment for really rethinking and understanding differently the value of broader participation and energy decisions. Throughout the Trump administration you had this group of young activists, people like the Sunrise Movement, working really hard to highlight the ways that climate change is connected to issues like inequality and racism and demanding that there was more of an agenda that tried to tackle these issues together, as collectively produced and in need of some collective solutions.

The Biden administration has really embraced this view of climate change policy-making that looks really different than the conversation that happened in D.C. for a long time that was pretty economics focused around: Should we have a carbon tax? Or should we have cap and trade? So Biden has promised to direct 40% of climate investments to frontline communities. He has really emphasized job creation and economic transformation as part of the climate agenda. Commissioner Glick seems to have really embraced this agenda, as well and promised to elevate environmental justice concerns within the Commission. He has actually just hired this new Senior Counsel for Environmental Justice and Equity. I think he takes this interrelationship of justice and energy really seriously, but it’s a new role for the Commission.

I think maybe part of what is animating Chair Glick is that if the Commission is going to figure out how to integrate justice and equity in the ways that have become a real priority of this administration into energy decision-making, they’re going to need to hear it from a new set of voices. And so I think you hear that driving a lot of the reasons why both Chair Glick and Commissioner Clements, who’s running the process to create the OPP have really tried to embrace the Office with open arms, despite the tensions it may create.

Stone: Taking this a step further, the public’s voice needs to be heard, and that’s one big role of the OPP, but the FERC still is going to need to take those voices into consideration. That’s with a concern that this would just be kind of window dressing; the OPP would be window dressing. What is being done, or how can the Office be organized in a way that ensures that really these voices come in, but the FERC also takes them into consideration in its deliberations over whether a certain pipeline or electric transmission project actually gains approval?

Welton: Yes, I think this is a really critical tension point for the agency because if it sets up the OPP in a way where you get more people participating, but they don’t feel like participation yields any substantive outcomes, you may end up with a public that’s even more disenchanted with the agency than they are right now. Judging from at least the people who showed up to yell at FERC this spring, that’s a lot of people who are quite disenchanted.

So I think the agency is going to have to be quite careful in setting up expectations about what it asks of the public and what it can promise back in return that are tied to a commitment to real substantive, if not change, consideration of these perspectives. A few ideas about what FERC could do to enable broader, effective participation — one thing is I think that they’re going to have to do some sort of outreach to get underrepresented communities and community groups involved. A lot of other agencies already have pretty strong ties in these areas, like EPA in particular, the Environmental Protection Agency. Also it already has deep environmental justice ties, so it may not take that much work to establish those, but I do think that’s going to include taking on a more concerted outreach effort to environmental justice communities and also maybe more of a direct role in outreach to communities affected by pipelines. That seems to be a strong ask on the part of those who have experienced interactions with FERC on pipelines in the past.

The second thing I think the agency is going to have to do is create and provide some very accessible materials on how to effectively intervene at FERC. And then a lot of other people have come up with good ideas about how you could take some pretty easy steps to make intervention and the FERC website and the docketing system less confusing and more accessible to people.

One other idea that I think could be really important — and this especially, I think, is important on issues of electricity and transmission — where it’s not so obvious exactly what the impacts are to potential communities. I think FERC might do some sort of what I might call like a “flagging” exercise, where it flags for the public proceedings where they think that people are going to have a particular interest in participating and maybe even provide something like a key list of questions that the Commission would like the public to weigh in on. That would really let groups focus their time and their energy on issues where they’re most likely to have a substantive impact. And hopefully if they’re focusing there, and FERC is listening on particular issues, that might ultimately really help build some trust in the Office.

I might also just flag here one point of debate among commenters about designing the OPP. There are some who really want the OPP to also provide substantive advice to people who want to participate in FERC proceedings, so advising them not just about how to intervene but about the substantive content of their comments and what would be the most effective arguments to make. The basic rationale here is that this would obviously strengthen the ability of non-experts to provide some useful feedback to FERC. Others are quite strongly opposed to this idea, and that’s because if there’s someone at OPP that provides this kind of advice, they’re going to end up subject to ex parte rules that basically forbid them from talking to other people at the Commission about ongoing matters. And that would really hamper the ability of those in the OPP to collaborate with other people at the Commission and help shape Commission policy more broadly. So I think this is a real tension point in the design of OPP.

Stone: It sounds like the OPP needs to reach out to people to make sure that they are aware of proceedings that may affect them, give these people or communities a way to engage effectively with the FERC, but the challenge, it sounds like here, is that this also has to be a neutral effort on the FERC’s part. Is that correct?

Welton: I think that’s a matter for debate. I think you could design OPP in a way in which some people within the Office did not play a neutral role, but then they would essentially have to be firewalled from the remainder of the Office. I have a lot of questions about whether or not that’s the best way forward. I think that if you want an OPP that feels very free to talk to FERC about how participation is going and offer thoughts about what’s working and what isn’t and really be very integrated with positions like the new Environmental Justice Coordinator and the Commissioners themselves, you may not want to firewall your OPP staff off from the rest of the agency. And if you don’t want to have them separated from the rest of the agency, then yes, they need to take a more neutral position.

So they could do outreach. They could do counsel about how you intervene in proceedings. I think they could even do this sort of flagging function that I’m talking about, where they say, “Here are ten proceedings that we think are likely to be of particular interest, and three places in each one where FERC particularly thinks it would be valuable to have public input,” and remain neutral. But they could not then go to community groups and say, “Hey, here’s how you should answer these questions if you want to have the most impact at the Commission.”

Stone: That outreach and flagging that you just mentioned is so important. A few minutes ago you mentioned an interesting detail, that when a new pipeline project is proposed, for example, FERC has delegated the responsibility to notify the community and landowners of that proposed project to the gas pipeline companies themselves. In other words, FERC has off-loaded that responsibility to notify the community to the pipeline companies. So we’re talking about making sure that going forward, FERC shares responsibility for that, as well, right?

Welton: Exactly, and as you can imagine, the pipeline company is going to comply with the letter of the law in terms of what they need to do for outreach. But they’re probably not going to go above and beyond and really make sure that community members feel empowered and eased in their way to objecting to this pipeline. So I think OPP could have a really important role to play in infrastructure siting in terms of making sure that both landowners and the broader community really understand their rights and opportunities in terms of getting their voices heard in front of FERC.

Stone: And your comments to the FERC on the OPP actually reflect this. You’ve talked about the importance of translating in and translating out, so the communities understand what the FERC is doing, and so that the FERC Commissioners understand what the communities are really saying, as I understand it.

Welton: Yes, I think this dual translating function is something that has been underemphasized in the discussion to date. In terms of translating out, I think this piece of the conversation has gotten a lot of discussion. Anyone who has even briefly tried to inhabit FERC-land has had the experience of being totally overwhelmed by acronyms and technocratic jargon. And so the translating out piece of the puzzle is that if the public is going to participate effectively, OPP is going to have to do some work to translate FERC-speak into just plain English.

But then the under-explored flipside of this dynamic is that FERC really tends to operate through very technical arguments about rate impacts of particular rule adjustments or pretty technical ways of demonstrating need in the natural gas context. And if FERC is going to widen participation to a broader range of people, it may also really need to think carefully about how to translate back in the concerns that the public brings in plain English back into FERC-speak.

For example, a lot of groups on the natural gas side that have been opposing pipeline infrastructure have made a range of arguments to FERC about their very different understandings of how one demonstrates the need for a pipeline. FERC has a lot of flexibility in its statutory language to revisit what it means to have a pipeline be needed. And it could do so, but it might have to be willing to open up consideration from the technical approach it has taken and take some other approaches into consideration.

Or on the electricity side, a lot of people are pushing FERC to recognize that what it means for electricity rates to be just and reasonable may include really embracing state goals around clean energy and helping states to accomplish them. So there’s plenty of room, I think, within FERC’s broad mandates for including more citizen-driven understandings of what “just and reasonable rates” and “public interest” mean. But the Commission, I think, is going to have to be willing to also do some work on its understanding of expertise. When you’re really thinking about what you’re asking of community members when you’re asking them to participate at FERC, you’re asking them to bring the expertise they have that just looks very different from, say, an economist’s expertise. But it’s expertise about things like lived experience near a natural gas pipeline, or community struggles with a local coal plant. So if you’re valuing these people’s opinions as expertise, as well, I think the Commission is just going to have to do some soul-searching about how you take that expertise and integrate it into your decision-making because it looks really different.

Stone: You bring up a really interesting point here. For natural gas pipelines, for example, the way that the FERC judges whether a pipeline is necessary at this point is it sees that that pipeline has firm contracts in place with a gas supplier. That’s a company that would actually move its gas through the pipeline to market. If those contracts are in place — and these are called “precedent contracts” — if they’re in place, then the FERC says, “Yes, obviously there’s a need for this pipeline.” So then it goes ahead and gives its stamp of approval. Given that that’s the criteria that FERC currently uses, is there going to be a need for a fundamental policy shift where other considerations — community concerns, environmental concerns, whatever they may be — are also formally taken into consideration at the FERC in its decision-making?

Welton: Yes, you bring up a really interesting tension between substantive policies at FERC and the participatory process. And I do think, given the ways in which FERC’s legal mandates are worded fairly broadly, so public convenience and need, there certainly are other ways that FERC could go about determining need. In fact, Commissioner LaFleur, while she was still on the Commission, pointed out some other ways that the FERC might go about assessing need.

And so I think really one of the big potential benefits of the OPP is that it might inject some creativity into FERC’s thinking around how it approaches some of these very broad mandates that it has established precedent around that does not necessarily need to remain the precedent going forward.

Stone: Much of the public comment on the Office of Public Participation that came through over the winter and the spring really focused on the need for public voices to be heard on natural gas pipelines and LNG export terminals, as we’ve kind of talked about. There has been a lot of opposition to both of those. But also as you have mentioned, moving forward, much of the new energy infrastructure we’re going to see in this country is going to be electricity infrastructure, including interstate transmission lines to help enable the expansion of renewable energy. How relevant will the OPP and the public comment that it is supposed to enable be in the development of needed electric infrastructure and the energy transition going forward?

Welton: Yes, I think that really depends. I think the OPP could be quite relevant if it does a good job illuminating the stakes of these decisions at FERC and creating some clear avenues for input. I will just flag, though, one pretty major challenge on the electricity side is that a lot of the decision-making around electricity infrastructures, both in terms of what the rules are for who gets to participate in electricity markets and things like the planning for new transmission lines, a lot of this takes place not at the FERC level but at the regional level. So in most of the country, we have what are called “regional transmission organizations” that are often a group of utilities that have joined together to jointly manage the grid in a particular region. And these regional entities are in charge of voting on rules for their markets and making transmission plans which then get sent to FERC for approval.

So if you don’t participate in the regional processes where these plans actually get drawn up and made and negotiated, you’re at a real disadvantage because policies are largely shaped by the time they get to FERC, and the agency tends to be pretty deferential in approving regional plans and rule changes.

I think the big question here is: Is the Office of Public Participation going to take on the role of trying to facilitate broader participation at the regional level, as well as at the FERC level? And I think whether or not it decides to do that, it’s going to have pretty decisive consequences in terms of how effective public participation is on the electricity side. Now that said, groups that have called for the kind of OPP that could do this regional level work have suggested that the Office probably needs to have 50 staff that are dispersed in regional offices throughout the country. And I think that’s a tall ask of the agency, in terms of creating this new Office, with a pretty big budget attached.

I don’t know if FERC is going to be willing to tackle this piece of electricity governance that really revolves around getting participation, not just in front of the agency when decisions are largely baked in, but also in these regional processes where, if anything, the conversations are more technical than they are at FERC itself. So you would probably really need a regional OPP representative at every RTO to just attend meetings and translate out for the public what’s going on in these processes.

Stone: Let me ask you this question, kind of where the rubber hits the road: What are the practical impacts that you would expect to see of a well-functioning OPP on energy infrastructure approval at the FERC going forward? Is it going to be harder to get these projects approved? Are different types of projects going to get approved? What do you see?

Welton: Yes, that’s a great question. I think there already seems to be a pretty clear appetite from the current FERC leadership for scrutinizing natural gas proposals more carefully for their climate impact. So I think we’re likely to see that 99% approval rating for natural gas pipelines that you mentioned at the beginning of the podcast creep downward, maybe in part due to OPP, maybe in part due to substantive commitments at the Commission. So I think it might be hard to disentangle those effects.

On the electricity side, if OPP really does a good job facilitating participation, I think you’re going to hear a lot more groups intervene in favor of distributed energy resources and more localized solutions. From the time I’ve spent talking to a lot of community groups about their visions for the energy system, many of them see a really promising role for distributed energy resources in boosting local economies and avoiding energy infrastructure where it’s possible to, and really empowering people to play a role in the clean energy future.

So I think that OPP may ultimately help spur development of these resources if people can intervene to effectively ensure that market rules really facilitate their participation. On the transmission side, I think the impacts of more public participation are complex. More renewable energy obviously necessitates more long distance transmission, but this is not infrastructure that’s particularly popular, particularly among the communities where it’s going to be sited. Now, siting mostly plays out with transmission at the state level, but you could imagine that more intervention, more participation in transmission planning processes at the regional level could both impede development of new transmission projects in particular cases, but also if groups were coming out in favor of more renewables, potentially lead them to support them. So I think the dynamics on transmission are complex, as they are at every level of government these days.

Stone: Let me ask you a final question. Could the current effort to establish an effective OPP dissolve under changed political circumstances, meaning a new presidency in four years or a changed makeup of Congress, a more conservative government that may not be as in favor of these types of policies? Is this something that will endure, or is it something that is potentially fragile as the political winds may move back and forth?

Welton: I think it’s absolutely fragile. I think anyone who has worked on climate change since the Obama administration and through the Trump administration is well aware of the fragility of any sort of efforts in this respect. I think maybe the best insurance policy to help the Office endure is to get it up and running pretty quickly so that it can establish a track record under the current administration and current leadership of FERC. But certainly I think both the influence of the Office and the funding of the Office is likely to shift under changing administrations. That’s just kind of the nature of the beast we’ve constructed.

Stone: Shelley, thank you very much for talking.

Welton: Thanks so much for having me.

Stone: Today’s guest has been Shelley Welton from the University of South Carolina Law School. Visit the Kleinman Center for Energy Policy’s website for our latest podcast episodes, policy digests, and blogs. You can keep up with news and research from the Center by subscribing to our newsletter on our homepage or by following us on Twitter. Thanks for listening to Energy Policy Now, and have a great day.


Shelley Welton

Presidential Distinguished Professor
Shelley Welton is a Presidential Distinguished Professor of Law and Energy Policy with the Kleinman Center and Penn Carey Law. Her research focuses on how climate change is transforming energy and environmental law and governance.

Andy Stone

Energy Policy Now Host and Producer
Andy Stone is producer and host of Energy Policy Now, the Kleinman Center’s podcast series. He previously worked in business planning with PJM Interconnection and was a senior energy reporter at Forbes Magazine.