Wednesday, November 14, 2018

RTO Insider Seeks Repeal of NEPOOL Press Ban

By Robert Mullin

RTO Insider filed a complaint Friday asking FERC to overturn the New England Power Pool’s ban on press coverage of its meetings or terminate the group’s role and direct ISO-NE to adopt an open stakeholder process similar to those used by other RTOs.

The Section 206 complaint (EL18-196) comes two weeks after NEPOOL submitted a proposal to FERC seeking to codify an unwritten policy of banning news reporters and the public from attending the group’s stakeholder meetings . (See NEPOOL Files Press Ban with FERC.) 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.

NEPOOL’s proposed amendments to the NEPOOL Agreement would add a definition of “press” and bar anyone working as a journalist from becoming a NEPOOL member or alternate for a participant. 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.

Chilling Discussion?

In its filing, NEPOOL contended that allowing press to become a participant “would adversely impact the power pool’s ability to continue to foster candid discussions and negotiations in its stakeholder meetings.” Absent those discussions among its members, ISO-NE and state officials, NEPOOL “would be limited in its ability to narrow or resolve complex issues within the NEPOOL stakeholder process,” the group said.

It cited concerns that press attendance at meetings “could encourage public posturing, pre-scripted statements and reduced willingness or ability by members to freely explore ideas or solutions.”

nepool iso ne press ban

FERC Commissioner Neil Chatterjee spoke at NEPOOL’s December Participants Committee meeting at the Colonnade Hotel in Boston. | NEPOOL

NEPOOL’s case for maintaining privacy pivots on the argument that it does not function in the same manner as other RTOs. Its filing notes that “unlike other regional transmission organizations in which stakeholders are assembled by and at the direction of the particular RTO, NEPOOL is and always has been an independent, separately organized stakeholder body.”

To support its claims, the power pool’s filing included the testimony of Robert Stein, principal consultant at Signal Hill consulting group, who said he has participated in the NEPOOL stakeholder process since beginning his career in the power industry in 1971.

Stein testified that the power pool’s meetings have always been “nonpublic,” and expressed concern that the press’ presence would change the “tenor and tone” of NEPOOL meetings “in a very unhelpful way.”

“Over the years I have both observed and participated in discussions at meetings where positions were taken and changed in our non-public setting,” he said. “This would be much less likely if members are concerned that those positions, as they may evolve during the NEPOOL process, could appear in press reports and need to be defended publicly. There are many examples, such as in diplomacy and labor negotiations, where the ability to negotiate outside the public spotlight is important if not essential.”

‘No Apparent Basis’

RTO Insider responded that Stein “has no apparent basis for this speculation” given his testimony that NEPOOL meetings have always been nonpublic and that he has worked his entire career in New England.

RTO Insider estimated it has covered 900 stakeholder meetings in the other six RTOs/ISOs since 2013 and said its reporters can recall fewer than 10 instances of a stakeholder representative reading from a prepared speech.

RTO Insider’s Aug. 31 complaint contended that nonpublic meetings violate the public interest and the missions stated in ISO-NE’s and NEPOOL’s governing documents.

It also contested NEPOOL’s assertion that it is a private organization, saying that FERC precedent “hardwires the NEPOOL stakeholder process into the regulatory process by requiring its use.” It noted that ISO-NE’s Participants Agreement with NEPOOL requires the RTO “to present proposals for changes to market rules, operating procedures, manuals, reliability standards, general tariff provisions, or non-[transmission owner] [open access transmission tariff] provisions for governance participant consideration and NEPOOL participant vote.”

nepool iso ne press ban

NEPOOL conducted 253 votes on 56 meeting days in 2017. All the meetings were closed to the public and press. | NEPOOL

RTO Insider pointed to another special privilege enjoyed by NEPOOL: its so-called “jump ball” filing rights at FERC. In cases when ISO-NE submits a market rules proposal that differs from one approved by the Participants Committee on a 60% vote, that provision entitles NEPOOL to file a competing proposal that the commission can adopt in full.

“This is an extraordinary right because it negates the right an RTO/ISO would otherwise have for its [Federal Power Act] Section 205 filing to be accepted if just and reasonable (or not unjust and unreasonable), rather than having to demonstrate that its filing is superior to alternatives,” RTO Insider contended.

The publisher also contended that, given NEPOOL’s role in transmission planning, failure to provide openness and transparency violates FERC Order 890. Banning the press and public from meetings also discriminates against smaller entities and potential new entrants to the New England market, the complaint said.

The publisher noted that ISO-NE, through NEPOOL, is the only RTO/ISO in the country that bars the press and public from its stakeholder process. “NEPOOL is well aware of this uniqueness, but nowhere in its 15-page transmittal letter in support of formalizing its press ban does it attempt to explain why ISO-NE/NEPOOL are fundamentally different from all the other RTO/ISOs,” the complaint said. “Nowhere does NEPOOL explain why secrecy is critical for it and it alone.”

RTO Insider said that if the power pool can justify its press ban as a “private” entity desiring secrecy, “its special powers and privileges should be transferred to an open stakeholder process within ISO-NE, and the ISO-NE resources devoted to NEPOOL (currently $2.6 million annually) should be devoted to an open stakeholder process within ISO-NE.”

NEPOOL Docket

RTO Insider also will file the complaint as a protest in the docket opened by NEPOOL (ER18-2208).

The Union of Concerned Scientists and the New England Professional Chapter of the Society of Professional Journalists have filed comments in that docket opposing the press ban.

No one else has thus far filed substantive comments, although Consolidated Edison, Avangrid, Public Citizen and New Hampshire Consumer Advocate D. Maurice Kreis have filed motions to intervene. FERC extended the deadline for comments in that docket by 10 days to Sept. 14.

“Somehow the nation’s other six RTOs manage to make difficult policy choices without a secret governance body for stakeholders,” Kreis said in a June 25 blog post on InDepthNH.org.

Kreis told RTO Insider that he found the argument that press attendance will have a chilling effect on NEPOOL stakeholder discussions “to be cosmically unpersuasive.”

“I don’t get to go to a lot of NEPOOL meetings. Having third-party summaries of meetings [from the press] is going to help me do my job,” he said.

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