Monday, February 18, 2019

NEPOOL Alone in Support for Press, Public Ban

By Rich Heidorn Jr.

The New England Power Pool’s proposal to codify its longstanding ban on press and public attendance at stakeholder meetings was attacked by consumer advocates, environmental groups and press advocates Friday.

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NEPOOL Chairman Tom Kaslow | © RTO Insider

Only one comment — by six former NEPOOL chairs and current Chair Tom Kaslow — was filed in support of the press ban before Friday’s filing deadline (ER18-2208).

“What some are characterizing as ‘secret’ is merely a discreet and considerate process for considering options and pursuing consensus,” the group wrote. “From our personal experience, and from what we have overwhelmingly heard from NEPOOL members, the presence of press reporters to attend and report widely on meetings would unfavorably change the stakeholder process, leaving many of NEPOOL’s participant members hesitant to share their positions as openly during the problem-solving and deliberative process.”

iso ne nepool press ban ferc

Former NEPOOL Chairman Joel S. Gordon | © RTO Insider

The filing was authored by Joel S. Gordon of Public Service Enterprise Group. Signing it were Kaslow, of hydropower generator FirstLight Power Resources; Cal Bowie, of Eversource Energy; Dan Allegretti, of Exelon; consultant Peter Fuller, who chaired the New England Power Generators Association while a vice president with NRG Energy; consultant Robert Stein; and attorney Donald Sipe, who represents industrial consumers.

On Aug. 13, NEPOOL asked FERC to approve amendments to its Agreement to codify an unwritten policy of banning news reporters and the public from attending the group’s stakeholder meetings. The group drafted the revisions after RTO Insider reporter Michael Kuser, who lives in Vermont, applied for membership in NEPOOL’s Participants Committee as an End User customer in March.

RTO Insider responded to NEPOOL’s filing with a Section 206 complaint Aug. 31 asking the commission to overturn NEPOOL’s ban or terminate the group’s role and direct ISO-NE to adopt an open stakeholder process like those used by other RTOs (EL18-196). Comments in that docket are due Sept. 20.


Former NEPOOL Chairs Cal Bowie, Joel Gordon, Pete Fuller, Don Sipe, Dan Allegretti, Roberto Denis, Bob Stein, and Brian Forshaw, pictured in the group’s 2014 annual report. All but Denis and Forshaw signed comments supporting NEPOOL’s ban on the public and press. | NEPOOL

New England is the only one of the seven U.S. regions served by RTOs or ISOs where the press and public are prohibited from attending stakeholder meetings.

‘Opportunity to be Represented’

PSEG’s Gordon said that NEPOOL’s practices of posting meeting materials and minutes “ensure that all parties with a direct interest in the New England wholesale electricity markets have the opportunity to be represented and fully informed of issues under consideration and the direction of the solutions.”

But William P. Short III, who represents End Use customers at NEPOOL, said the meeting minutes are insufficient. He urged FERC to listen to the audio tapes of the May 4 and June 26, 2018, Participants Committee meetings at which the press ban was debated.

“At the May 4, 2018, meeting, we debated this issue for at least a half-hour, if not, an hour. The meeting minutes on the subject of banning the press from NEPOOL membership are just three sentences,” Short said. “The public needs to have the press in the room to catch these super-sanitized versions of these proceedings that mislead both non-attending participants, the public and the FERC commissioners and staff.”

Short — who joined with Massachusetts Assistant Attorney General Sarah Bresolin Silver to sponsor an unsuccessful proposal to allow press to become NEPOOL members — said he has been involved with NEPOOL since 1998. “Until Michael Kuser’s membership application, neither the Membership Subcommittee nor the Participants Committee had ever denied an applicant its request for NEPOOL membership,” he said.

Press, Consumer, Environmental Groups File Protests

Also filing a protest was Jordan Frias, president of the New England Professional Chapter of the Society of Professional Journalists (SPJ), who said the proposed ban “raises suspicion about what [NEPOOL] is trying to hide.”

“Not allowing reporters access to public policy debates that will determine changes to the electricity markets in regions, including New England, is doing a disservice to energy consumers,” Frias said. “FERC members need to think long and hard about whether they want to further cement lack of transparency from NEPOOL committee members or if they want restore the public’s trust in this committee by allowing journalists to do their jobs.”

Gordon expressed concern that stakeholders’ “questioning and brainstorming … might be reported as representing formal versus probative positions.”

But Rick Blum, policy director of the Reporters Committee for Freedom of the Press, a D.C.-based nonprofit that provides legal resources to protect journalists’ newsgathering rights, noted that other RTOs “operate effectively without a general ban on press.” He cited PJM’s media code of conduct, which states that “work products should be treated in the spirit to which they are intended, that is, not as final or complete documents nor the final position or view of a participant.”

The Union of Concerned Scientists’ Michael Jacobs noted that UCS is active in PJM and MISO stakeholder meetings, which RTO Insider covers. UCS’ experience “demonstrates that there is a productive public interest and stakeholder benefit to an active press presence at RTO meetings that outweighs NEPOOL’s stated rationale for this action,” Jacobs wrote.

He said press coverage helps his group with “the very real difficulty of tracking the many issues” before RTOs. “UCS believes that complex issues are better resolved when there are more informed parties, and information is more accessible. Press participation in NEPOOL improves our collective problem-solving abilities, not reduces them,” he said.

In a preliminary response, NEPOOL’s Participants Committee said the SPJ and UCS filings reflect a “fundamental misunderstanding” of the organization’s proposal.

“The amendments simply and clearly are solely about whether press can be members in NEPOOL, not whether press can attend NEPOOL meetings,” Day Pitney attorney Patrick M. Gerity wrote. “The amendments clarify that the press cannot become NEPOOL participants or representatives of participants. … There are widely published articles in the press on NEPOOL activities, notwithstanding that no press is or ever has been a member.”

Gordon: New England is Different

Gordon acknowledged that other RTOs conduct stakeholder meetings with press present. “While that approach may yield adequate dialogue for those regions, it does not follow that there will be no adverse impact on the existing dialogue within the NEPOOL stakeholder process if members of the press are in attendance,” he said.

He said NEPOOL’s six sectors allow “membership by all parties with legitimate interests in our mission.”

“A key principle for that dynamic is that the audience for the stakeholders who participate in NEPOOL meetings, and those for whom transparency is most critical, are the other NEPOOL stakeholders who hear the entire dialogue and understand and respect its context,” he continued. “We believe that this is an important and unique component of the New England stakeholder process that has made NEPOOL an effective stakeholder organization over the last decades — those who attend are communicating with ISO-NE, states officials, consumer representatives and all other stakeholders in attendance for the benefit of each other, not for the benefit of an audience outside the room.”

NEPOOL ‘Careerists’

New Hampshire Consumer Advocate D. Maurice Kreis, a member of the End User Sector, termed the signers of the Gordon filing “NEPOOL careerists,” saying they and their companies “benefit from the current arrangements” barring public and press attendance.

“NEPOOL relies on written testimony of an industry insider and NEPOOL veteran who has essentially built an entire career on providing information and insight that is otherwise unavailable to non-attendees because NEPOOL meetings are closed and secret,” he said, referring to the testimony filed by Stein that accompanied NEPOOL’s initial filing.

As an independent consultant, Stein testified, he supplies clients with “a confidential compilation of information from [NEPOOL] stakeholder meetings tailored to their individual business interests, giving them confidential analyses of issues of interest and insight on how their business interests could be affected by proposals by ISO New England Inc. (ISO-NE) and other stakeholders.”

Said Kreis: “The commission should view the proposed changes to the NEPOOL Agreement for what they are: an unabashed effort by the large and powerful corporate actors that dominate NEPOOL to strengthen the status quo to the detriment of consumers, public interest groups and others who would subject New England’s wholesale electric markets and bulk power transmission system to the skeptical scrutiny such a vital public resource deserves when left in private hands.”

Blum, of the Reporters Committee, made a similar observation, saying NEPOOL’s proposal “would appear to continue to allow meeting participants whose primary purpose is not news reporting to collect information based on their observation of, and participation in, NEPOOL meetings and distribute it to individuals or entities that do not themselves participate as members in NEPOOL meetings. The proposed amendments would only bar those individuals or entities whose primary purpose was newsgathering from membership and, thus, engaging in the same newsgathering and reporting activities.”

Tyson Slocum, energy program director for Public Citizen, raised the same issue. “When deliberative bodies are transparent and open to the public, information resources regarding details of their proceedings are inexpensive, reflecting the ease with which the information can be obtained and disseminated. Banning the public and journalists creates new ‘markets’ for those permitted access to NEPOOL proceedings to financially commodify access and intelligence about NEPOOL’s activities,” he said.

“NEPOOL’s restrictions on public and media access allow those with privileged access to possess valuable information about NEPOOL activities that are nonpublic, which they can then sell for lucrative amounts to interested parties. NEPOOL is rife with a small army of well-connected consultants — many of whom trade on their former roles as NEPOOL officers in a ‘revolving door’ scheme — who sell information gleaned from their exclusive access to private NEPOOL proceedings.”

Slocum noted that many NEPOOL members that voted in favor of the ban are active in other RTOs. “Should FERC agree with NEPOOL’s press ban, it is likely that these and other companies will push for similar restrictions in other RTOs,” he said.

Order 719

In a joint filing, environmental groups Earthjustice, the Conservation Law Foundation and the Natural Resources Defense Council’s Sustainable FERC Project said NEPOOL’s press ban “severely compromises the transparency of ISO-NE decision-making, undermines confidence in its proposals and decisions, and threatens to undermine public interest outcomes in the region.”

They said the policy is in “direct conflict with commission Order 719, including the mandate that RTO/ISO processes be inclusive, fairly balance diverse interests, represent minority interests and be responsive.”

“Opaque RTO/ISO deliberations undermine customer confidence by enabling the perception, whether justified in reality or not, that a group of privileged insiders wields outsize influence over grid operator decisions affecting millions of customers,” they said. “In contrast, press access can encourage customer confidence by demystifying RTO/ISO processes.”

FERC commissioners were unaware of the ban when they approved Order 719 (RM07-19, AD07-7) in 2008, former Chairman Jon Wellinghoff said last week.

Similarly, former FERC Chairman Pat Wood III and former Commissioner Nora Mead Brownell said they were unaware when they approved NEPOOL as ISO-NE’s stakeholder body in 2004 that NEPOOL barred the public and press from its meetings. (See Wood, Brownell: Unaware of Press Ban When OK’d NEPOOL.)