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'It's not publicized' — the BPU's continued transparency problem

 
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02/10/2021 05:00 AM EST

The Board of Public Utilities still has a transparency problem.

Six months ago, the board finally joined 48 other states in establishing a digital docket system for matters under its review — after years of prodding from advocacy groups and the press. The system, though, is often incomplete, lacking some or all documents related to each matter before the board.

According to the BPU president, the opacity is purposeful.

“It's been kind of our rule that until the board acts on something, it's not publicized,” BPU President Joseph Fiordaliso said at a recent board meeting, amid an extended complaint about a story that reported details of a proposed deal with utility giant PSE&G before it came to the board for discussion.

Fiordaliso’s admission encapsulated what energy and environmental advocates, consultants, analysts and other observers have complained of for years, regardless of whether the board is under Republican or Democratic control: Billions of dollars worth of deals between the state and the utilities it regulates largely get brokered out of public view, without scrutiny — and when matters do come to light, it is often too late for the public to weigh in.

“If you’re trying to enhance transparency, I think they should do what almost every other state in my experience does, which is they file it and post [proposed settlements] so anyone can take a look,” said Paul Patterson, a utility analyst with Glenrock Associates who tracks cases all over the country. “They made an effort and they’ve certainly come a long way, but unfortunately their starting point was about 15 years behind most states in terms of having those dockets.”

The overwhelming majority of public utility regulators around the country — at least 44, including New York, Minnesota, California, Arizona and South Dakota — typically make proposed settlements available in the docket systems for public review before the commission votes on them. Confidential and proprietary information is redacted. The settlements are culminations of months, if not years, of negotiations around plans to change the grid, build pipelines, cut or boost greenhouse gas emissions and costs to utility customers.

“We endeavor to labor in the full light of sunshine,” said Public Utility Commission of Texas spokesperson Andrew Barlow in an email, explaining his state's policy.

In New York, proposed settlements — also called joint proposals — between the utility, Public Service Commission staff and other intervening parties are usually made public and subject to public hearings before the commission takes the final vote. New York is one of the handful of public utility commissions around the country that holds public hearings on proposed settlements.

New Jersey holds public hearings before it settles cases, and started a series of quarterly meetings where members of the public can directly address board commissioners.

But between the public hearing and the final vote, those who aren’t parties to the case don’t know the details of the proposed settlement. The BPU — like its neighbor, the Delaware Public Service Commission — keeps the public in the dark when it comes to settlements, at least until they're a done deal.

“We consider stipulations confidential until approved by the Board and as a matter of practice have expected parties to the process to adhere to the same,” BPU spokesperson Peter Peretzman said in a statement. He declined to explain why the board had that policy. A review of relevant statutes by POLITICO indicated that no regulation exists either requiring or prohibiting the confidentiality of stipulations before a board action.

The policy, according to those who follow the board’s energy proceedings, is frustrating and limits public participation.

“It robs the public of both oversight and input,” said Jeff Tittel, executive director of the New Jersey Sierra Club. “I’ve seen the stakeholder process go in one direction and the settlement go in the other opposite direction.”

Tittel pointed out that only those who see the draft settlement before a vote are parties in the case — often organizations or companies that can afford lawyers, creating “a two-tiered system between those that have access and those that dont have the resources to have access,” he said.

Stefanie Brand, director of the Division of Rate Counsel, pushed back against the equity concerns and defended the BPU’s processes.

“That’s why we exist … We are in these cases on behalf of the people,” she said referring to her office, adding that the public can write in or comment at any time in the process and the BPU must balance public input with the need to move cases forward expediently.

But Brand is not an elected official, and her office’s priorities are typically focused on keeping costs low for ratepayers. With climate change and clean energy becoming much more popular issues among the voting public, ratepayer interests may be varied and conflicting.

Energy policy over the years has evolved to encompass a wider array of infrastructure and systems, from regulating fossil fuel plants and planning for transmission lines, to developing community solar and readying the grid for offshore wind. As such, the board’s proceedings have attracted a larger base of interested parties.

“There is a greater understanding that the board has a huge effect on the lives of consumers. Few other government agencies compare,” said Evelyn Liebman, the New Jersey director of advocacy at AARP. “With requests for billions of dollars in rate hikes being all too common, the board has a very big impact on everyone’s wallets, regardless of income. There is also a greater understanding of the board’s impact on energy policy and climate change.”

In the case of the recent $166 million settlement for PSE&G’s electric vehicle program, first reported by POLITICO ahead of the BPU vote, the deal that was negotiated sparked numerous questions, responses and discussion among the commissioners and board staff.

Fiordaliso condemned the disclosure of the proposed settlement ahead of the board vote.

“Staff has been working incredibly hard on the EV and the infrastructure portion of this project, and … to see the details published in advance of us taking action, I find incredibly disconcerting,” Fiordaliso said.

Those comments were a far cry from the president’s remarks in August, when he touted the BPU’s newly launched digital docket system as a way to highlight his staff’s efforts and let the public peek at their progress.

“We take transparency seriously at the Board, and this tool improves our accessibility because of the speed and ease by which stakeholders across hundreds of proceedings can locate information, on solar, offshore wind, energy efficiency, and beyond,” Fiordaliso said in a statement at the time. “There’s no shortage of topics that we are carefully considering on any given day, and I’m pleased to be able to share that hard work with the public through this enhanced tool.”

Previously, the board only posted its orders for public consumption, not the other related documents in the proceedings. While the docket system represents a clear upgrade for public participation, there’s still a ways to go: often, weeks pass before items related to those that appear on the board’s meeting agenda are posted publicly to the docket.

For example, the letter from environmental intervenors, which first indicated the details of the proposed PSE&G electric vehicle settlement, wasn’t posted until almost two weeks after it was first sent to the board. Such lags are common in other states, too, but not the rule.

In West Virginia, for example, documents hit the docket for public consumption “within an hour of being received by the Commission,” according to spokesperson Susan Small. In New York, most documents and comments are typically posted by the Public Service Commission within 24 hours of receipt.

Energy players in other states say prompt access to docket items helps ensure the public has a voice on matters that directly affect their climate, their properties and their pocketbooks.

“Public input is critical to commissions and their decisions,” said Bradley Marshall, a staff attorney at EarthJustice. “They’re supposed to be representing the public’s interest and certainly the people who know best of how they’ll be affected by a decision are the people who will be affected ... Short-cutting the public out of the determination of the public interest seems very counterproductive.”

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