New Report: Democratizing Our Regulatory System Is More Important Than Ever. Can FERC Lead the Way?

Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it’s a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America’s older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public.

Despite this broad-based and deep concern, the public remains largely excluded from participating in the development of energy policy — much less shaping it. Instead, corporate insiders still retain outsized influence over the energy policymaking process, leaving policymakers with a skewed perspective on issues they address through regulation, which ultimately undermines the quality and legitimacy of those regulations. Worse still, the voices that are systematically excluded often speak for structurally marginalized communities, which reinforces broader societal and racial injustice.

Fortunately, the Federal Energy Regulatory Commission (FERC) — which oversees much of the country’s energy infrastructure and helps set rules, rates, and standards for energy markets — is undertaking new efforts to level the playing field. A new Center for Progressive Reform (CPR) report examines one of these efforts: the establishment of the Office of Public Participation (OPP). After decades of delay, FERC finally began setting up the office this past year.

As the report explains, the OPP represents an important experiment in “energy democracy,” or the concept of making energy policy more responsive to and inclusive of the public, particularly members of structurally marginalized communities. If successful, the office holds the promise of empowering the public to meaningfully engage in FERC’s administrative proceedings and offset the undue dominance that corporate special interests have enjoyed there for too long.

The OPP’s development comes at a time when more and more Americans are recognizing that to make progress on our most pressing social changes — from racist police brutality to the climate crisis — we must address the systemic power disparities that are at their root. One crucial avenue for achieving this goal is to make our governing institutions more people-driven by, among other things, promoting new opportunities and new fora for sustained and meaningful public participation in existing policymaking processes.

Potential of the Office of Public Participation — and Regulatory Democracy

The new report — The Federal Energy Regulatory Commission’s New Office of Public Participation: A Promising Experiment in ‘Energy Democracy’ — provides a detailed exploration of the OPP and its potential for advancing energy democracy at FERC and for promoting “regulatory democracy” more broadly across other federal agencies.

It begins by exploring how the policy issues within FERC’s jurisdiction — natural gas pipeline construction, electric transmission grid development, electricity market ratesetting, and grid reliability — are not esoteric matters for a narrow range of experts and industry insiders, but in fact implicate questions of great importance for all Americans. It then catalogs the common classes of stakeholders that have an interest in the outcome of FERC’s various administrative proceedings, with a particular focus on “nonrepeat” participants — that is, most members of the public, and especially low-wealth people and people of color.

One of OPP’s critical functions is to help these nonrepeat players engage more effectively at FERC and otherwise offset as much as possible the systemic resource and expertise advantages of corporate insiders and other repeat players. The report documents the various types of participation barriers that members of the public face at FERC. Because many of these barriers are common to other federal agencies, how the OPP addresses them can provide valuable lessons across our regulatory system.

To help guide FERC’s continued development of the OPP, the report offers a comprehensive set of recommendations aimed at ensuring that the office is able to function as effectively as possible in meaningfully engaging the public, particularly members of structurally marginalized communities. Drawing on these recommendations, the report concludes by identifying best practices that other federal agencies can adopt and adapt to promote greater public engagement within their own administrative proceedings.

Joining me in authoring this report are Shelley Welton, who teaches law at the University of South Carolina; Alexandra Klass of the University of Minnesota Law School; and CPR Member Scholar Hannah Wiseman, a law professor at Penn State University.

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