Correcting the Power Imbalance: FERC’s Office of Public Participation

The world of the clean energy transition exists largely behind a veil of economic data points, a complicated patchwork of regulations, policies, and energy markets, lengthy acronyms, utility commissions, emerging technologies, start-ups, venture capital, legal proceedings, and government agencies. It’s no surprise that the Federal Energy Regulatory Commission (FERC) — a government agency that regulates the transmission of energy, as well as oil and gas, across state lines — isn’t exactly known for its accessibility.

In addition to regulating energy transmission, FERC also reviews proposals to build liquefied natural gas (LNG) terminals, interstate gas pipelines, and the licensing of hydropower projects. What was once known as a sleepy independent federal agency is now largely recognized as a linchpin decisionmaker in our collective march to a clean energy future. However, FERC’s administrative process is notoriously technical, opaque, and governed by complex rules, which often renders it inaccessible to the general public unless a participant can invest a significant amount of time and resources.

Bridging the gap between how we manage energy across the United States and the people whose lives are impacted by those decisions can be a big challenge, but a change coming to FERC will help us break down barriers to the work that the agency does and its impact on the public. It started in March 2016 when Public Citizen, a nonprofit consumer advocacy organization, filed a petition for FERC to carry out instructions from Congress to establish the Office of Public Participation (OPP) and fund its work.

The request for this office has actually been on the books for over 4 decades, but FERC never requested funding for the office, and so it was never completed. Without it, there has been a significant power imbalance between repeat players, like oil and gas companies, who are well resourced and have access to sophisticated tools and information in comparison to the public. This results in environmental justice communities historically having limited engagement with and oversight of the federal agency responsible for regulating the energy they use and the infrastructure built through their communities.

The goal of the OPP will be to encourage and facilitate public participation in all of FERC’s dealings, and in particular, improve participation by tribes, environmental justice communities, and other affected individuals, landowners, and communities, who have not historically engaged at FERC. The new office will also provide compensation for qualified parties that participate in its proceedings. While industry can simply pass along the costs of participating in these proceedings to the public, the public has to bear those costs directly. While imperfect, the opportunity for public compensation will help correct the inherent power imbalance present in FERC proceedings.

In December 2020, Congress directed FERC to provide a report, by June 25, 2021, detailing its progress toward establishing the OPP. FERC is holding a workshop to gather feedback on April 16, 2021, and accepting public comments that are due April 23, 2021. This is a truly unique opportunity for us to submit comments and push FERC to be more responsive to impacted communities and provide better engagement opportunities and tools for the public. Submit your own comments here.

There is new momentum with FERC’s current leadership to meaningfully establish this office and change the status quo, and we cannot let that momentum go to waste. With better public participation, achieving a zero emissions power sector that supports equity will be more possible than ever before, and those potentially impacted by infrastructure buildout will have meaningful ways to make their voices heard.

However complicated on the back end, clean energy represents the future of how every one of us will turn our lights on, heat our homes, and get from one place to another. I am a member of Earthjustice’s team of attorneys that works to accelerate the transition to 100% clean energy and that ensures everyone benefits from a thriving clean energy economy. My team uses relationships built through clean energy advocacy networks and the law to help better inform decisions made at FERC. Specifically, we develop legal strategies to create a fair playing field for clean energy in federally-regulated wholesale electricity markets, while also fighting fossil fuel-based infrastructure development like gas pipelines. Earthjustice will be submitting detailed comments amplifying the perspectives of those that have been traditionally marginalized by the agency encouraging FERC to create a robust Office of Public Participation.