The Office of Public Participation at FERC: From Launch to Implementation

For several decades, the American public has had substantial interest and engagement in urgent and transformative energy matters impacting their communities, including during the oil crises of the 1970s and the California energy crisis in the early 2000s. Arguably, however, over the course of this last decade, the public’s interest and demand for involvement in energy policy development has reached an all-time high resulting from the confluence of various social, environmental and economic factors.

By Nicole W. Sitaraman and Joseph A. Rosenthal

For several decades, the American public has had substantial interest and engagement in urgent and transformative energy matters impacting their communities, including during the oil crises of the 1970s and the California energy crisis in the early 2000s. Arguably, however, over the course of this last decade, the public’s interest and demand for involvement in energy policy development has reached an all-time high resulting from the confluence of various social, environmental and economic factors. These factors include but are not limited to:

  • Technological advancements such as the rapid expansion of the internet and digital resources that have accelerated access to information, news, and data unlike any other era in history;
  • Global concerns about climate change and environmental impacts of energy infrastructure, coupled with opportunities to transition toward cleaner energy resources;
  • National concerns about electric reliability, particularly in the summer and winter, and the related discussions about transmission grid expansion and power plant retirements;
  • Regional concerns about electric resource adequacy, gas pipeline siting, severe weather events, transmission planning, and cost allocation;
  • Local concerns about new or relicensed energy infrastructure and impacts on the local environment, public health, agriculture, property values, environmental injustice, disparate impacts, or other issues; and
  • Individual consumer concerns about affordability, reliability, carbon and methane footprint, technology adoption and obsolescence, health impacts of energy infrastructure, and other factors.

With these evolving factors as the backdrop and an expanding awareness among regulators that public input is indispensable for addressing these significant energy delivery system challenges, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) took the lead in 2021 to establish a new program office, the Office of Public Participation (“OPP” or the “Office”).[i] OPP’s mission is to “empower, promote, and support public voices” at FERC.[ii] Since its inception, OPP has established itself as a trusted, reliable, and responsive resource for the public. OPP provides a range of products and services including direct constituent support with navigating FERC’s online systems for submitting filings and locating docket information, proactive outreach to communities regarding FERC proceedings, and development of educational materials to foster greater understanding of FERC jurisdictional topics.  The next phase for OPP’s efforts will include development of a Technical Assistance Division to provide a broad range of technical assistance, expertise, and educational support services to various types of constituents interested in more in-depth learning, education, and intervention in FERC matters. OPP’s future work will also include expanding outreach to diverse communities, as well as greater coordination within the Commission and externally with other federal, state and local agencies to increase public participation and engagement.

I. The Enabling Statute for the Office of Public Participation

    The existence and mission of the Office of Public Participation are supported by an enabling statute, Section 319 of the Federal Power Act (“FPA”),[i] which was passed as part of the Public Utilities Regulatory Policies Act of 1978 (“PURPA”).[ii] Under this statute, the OPP Director is appointed by the FERC Chairman with the approval of the Commission.[iii] The FPA frames OPP’s work as follows:

    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.[iv] 

    This provision sets forth a broad mandate for OPP encompassing assistance for the public with respect to the full scope of authorities exercised by the Commission. This includes, for example, providing participation guidance and educational support to interested members of the public regarding RTO/ISO proceedings and processes. [v] Stakeholder processes are occurring at regional transmission organizations and independent system operators (“RTO/ISO”) pursuant to FERC-approved tariffs, and thus occur pursuant to “authorities exercised by the Commission.”[vi]

    Notably, OPP’s statutory charge is to facilitate and support participation, not to be an advocate. OPP is not authorized to intervene directly in FERC proceedings on behalf of the public interest or appeal FERC rulings. Indeed, OPP provides the same level of support to constituents who contact the office regardless of viewpoint or any other factors.

    II. The Process for Development of the Office of Public Participation

      Following the passage of Section 319 of the Federal Power Act in 1978, no action was taken to provide resources for an Office of Public Participation at FERC.  During interim years, advocates and public officials maintained engagement with the United States Congress and FERC on formally establishing the Office.  In 2020, Congress ultimately developed a bill to implement OPP. On December 27, 2020, the President signed the FY2021 Omnibus and COVID Relief and Response Act (HR 133) into law.  The Accompanying joint House-Senate Appropriations Committee Report (Division D – Energy and Water) included a requirement for FERC to submit a report within 180 days (June 25, 2021) on how it will establish and fund the Office of Public Participation.[vii]

      In early 2021, FERC launched an OPP docket (AD21-9) to enable public comment and testimony on the prospective formation and functions of the office.[viii] In June 2021, FERC submitted the required FERC OPP Report to Congress, summarizing the public comments and describing how it would establish and operate OPP. The FERC OPP Report empowered OPP with the following functions:

      • conduct outreach;
        • provide public education;
        • provide procedural assistance to intervenors and participants in individual proceedings;
        • provide technical assistance;
        • improve coordination of public participation across the Commission; and
        • advise on a rulemaking establishing the intervenor funding program pursuant to FPA section 319.[ix]

      After OPP was established, OPP leadership designated the office as non-decisional.[x] As such, OPP can hear the viewpoints and perspectives of constituents regarding contested proceedings without fear of running afoul of ex parte rules. Constituents often express appreciation that they may speak freely with OPP to receive the procedural assistance they need and simply feel that they are being heard. FERC’s ex parte rules promote fair and equal deliberative process at FERC by disallowing private conversations between FERC decisionmakers and the public as to substantive matters in contested proceedings.[xi]   

      III. OPP Provides Direct Constituent Support 

        OPP acts as a liaison to members of the public affected by and interested in Commission proceedings. This includes providing process information on individual proceedings and responding to requests for assistance with the procedures for filing interventions, comments, and other documents with FERC. Since its launch in 2021, OPP has provided assistance for almost 1,000 constituent inquiries.

        Many inquiries received by OPP are driven by the Commission’s issuance of Notices of Proposed Rulemaking (“NOPRs”). OPP assists the public by explaining the content of the NOPRs, clarifying deadlines and procedural steps, and providing guidance on how to access the FERC precedents or other citations in NOPRs (which are often numerous) using FERC’s online systems. FERC infrastructure proceedings involving gas pipeline construction, development of LNG export terminals, and hydroelectric plant re-licensing also drive numerous public inquiries to OPP.  Members of the public seek information about the location of the infrastructure, FERC processes for commenting and intervening, the nature and timing of community meetings, and land restoration concerns in the pipeline post-construction phase, among other issues. 

        A significant share of the inquiries received to date by OPP have assumed FERC jurisdiction where none exists. Where jurisdiction does not exist, OPP directs constituents to the appropriate agency or resource (without offering legal conclusions). For example, OPP may offer constituents contact information for a state public utility commission or consumer advocate office or another federal agency. In some instances, the question may be best answered by the customer’s utility.

        Additionally, OPP helps the public use FERC’s online services, such as accessing docket information in FERC’s eLibrary, commenting, or filing for intervention electronically using eComment or eFile, or taking advantage of eSubscription to a docket to receive notice of FERC issuances or filings of other parties. OPP supports constituent efforts to participate in FERC proceedings using existing FERC systems, but also receives input from constituents about challenges they may experience using these systems and their suggestions for improvements.  This input has been informative for the Commission as it explores ways to address language access, accessibility, and ease of use of its systems and publicly accessible documents.

        IV. OPP Conducts Proactive Outreach

          OPP engages with the public through direct outreach to facilitate greater understanding of Commission processes, enable broader participation in FERC matters, and foster trust between communities and the Commission. OPP’s responsibility to facilitate participation in Commission proceedings, including through assistance to underserved communities that face barriers to meaningful participation, has been recognized as a key aspect of FERC’s Equity Action Plan developed in response to Executive Order No. 13985.[xii] 

          Consistent with the FERC OPP Report and the goal of encouraging the consideration of a broad set of views in FERC proceedings OPP targets specific categories of constituents for much of its outreach efforts.  OPP conducts outreach to traditionally under-represented constituencies such as Tribal members, communities with environmental justice concerns, consumer and environmental advocacy organizations, and landowners impacted by infrastructure projects, to name a few. OPP has engaged in well over 300 constituent meetings, convenings, and events over the course of the Office’s first two years of operation.

          OPP is committed to meeting communities where they are physically located. To meet national public participation needs, OPP has hired staff that are based in key regions, including the Gulf Coast, New England, Oklahoma, and the Pacific Northwest. OPP prioritizes FERC infrastructure proceedings of significant interest to constituents for expanded outreach through hard copy mailings to grassroots non-governmental advocacy organizations, elected officials, religious institutions, civic groups, chambers of commerce and other business organizations, labor unions, and local news media. These OPP mailings contain information about the proposed infrastructure project, the Commission, as well as opportunities for public written or verbal comment on the record. Following these mailings, OPP staff regularly attend in-person FERC community meetings related to project proposals to provide additional assistance.

          Further, OPP conducts extensive outreach relating to electric markets and transmission matters. OPP’s markets-related outreach has included informational meetings with community, academic, Tribal and environmental groups, staffing tables at FERC regional events relating to electric reliability, developing key contacts at RTO/ISOs, and speaking at constituent-coordinated educational forums and webinars. 

          V. OPP Develops Educational and Training Materials for the Public

          OPP’s mission of empowering, supporting and promoting public voices in FERC matters is firmly rooted in the awareness that public participation is enhanced when the public is educated about the scope and limitations of FERC’s jurisdiction. Therefore, OPP has developed a robust education initiative that includes the development of workshops (dubbed “WorkshOPPs” using the OPP acronym), explainers, factsheets, and other handouts to build a library of resources to assist the public.

          For example, in 2023, OPP worked collaboratively with FERC leadership and other program offices to provide informative, evergreen workshops such as “Tips for Powerful Comments.”[xiii] This workshop educated constituents about the best ways to make their comments more impactful in FERC proceedings. Presenters included OPP staff, a commissioner and senior program office leadership who shared perspectives on the importance of commenting, how comments are processed, and how comments can be most useful to decisionmakers. Another OPP-led workshop in 2023 was entitled “Public Participation in the Natural Gas Pre-Filing Review Process,”[xiv] and was designed to help the public understand and take advantage of the valuable information exchanges between companies and communities that can occur during that pre-application phase. Also, OPP produced a video on the Fundamentals of Intervention in FERC matters, explaining how and why a member of the public may want to intervene in different types of FERC proceedings.[xv]  All of three workshops offered
          Spanish language translation services and the two live sessions made American Sign Language available upon request.[xvi]

          Moreover, OPP is prolific in its delivery of written educational explainers to constituents.  The Office has published explainers on the several complex and lengthy FERC transmission rulemakings, an explainer on electric reliability, a guide on electricity market basics, and a guide for understanding FERC Order 2222 and how it will facilitate participation in energy markets.  OPP has also developed a series of explainer documents that provide basic information about each RTO/ISO, their governance and stakeholder proceedings, and opportunities for participation.[xvii]  On the infrastructure side, OPP developed an explainer on an update to FERC’s Plan and Procedures for avoiding, minimizing, or mitigating impacts on the environment from FERC-jurisdictional natural gas projects.[xviii]  

          VI. The Next Phase for OPP at FERC

          With a growing team of dedicated and expert professionals, OPP will continue to meet constituent needs both reactively (responding to constituent inquiries) and proactively (including through expanded outreach and in-person attendance at FERC-related meetings across the country) in 2024 and beyond. 

          In 2024, OPP plans to build out another central aspect of its mission: technical assistance.  OPP will soon staff a Technical Assistance Division to provide a broad range of resource development for constituents interested in more in-depth educational products and tools on FERC-related topics. Further, OPP will build on its existing community partnerships to achieve broader participation at FERC, particularly in areas that are heavily burdened by energy infrastructure. In addition to infrastructure concerns, OPP also anticipates answering more inquiries about FERC proceedings that relate to the energy transition, including interconnection of renewable energy, transmission planning and opportunities for increased participation in regional electricity markets with aggregated distributed energy resources.

          OPP will expand its educational platform and produce more workshop videos and written educational documents based on communications with constituents about their needs and as FERC opens additional proceedings and complex rulemakings. A growing set of handouts and even postcard-sized products will provide key basic information to attendees at community meetings, conferences, and FERC forums.

          OPP will reinforce its internal work with other FERC program offices to continue the progress toward greater public engagement that is supported by Chairman Phillips and throughout the Commission. Such collaboration may include discussions about system upgrades or new methods for filings, further coordination between OPP and other FERC customer-facing offices and helplines and exchanging of information about community outreach. 

          OPP appreciates the recognition by FERC’s leadership that public participation support is a vital and separate government function, requiring a dedicated staff and resources. In partnership with the Commission’s Office of External Affairs, OPP shares information about the office’s progress with other federal, state, and international agencies who have or are considering the development of similar offices. These conversations are intended to lead to the establishment of similar public participation offices for the benefit not just of the public but for the regulatory agencies. Public participation and full consideration of a broader set of perspectives in the administrative record are a critical component of energy regulation and will inevitably lead to better, legally durable decisions, settlements, as well as better public understanding and acceptance of outcomes.

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