The Vermont Public Utility Commission is truly a curious beastie. If it didn’t exist and you were creating a regulatory body afresh, there is no way on God’s green earth that you’d follow the deeply flawed model of our Earth-1 PUC.
Or should I say “Bizarro Earth”?
The PUC is what they call a “quasi-judicial body.” What this means in practice is that it hides behind a judicial cloak when it’s convenient, and ignores judicial conventions when it’s not.
For those just tuning in, the PUC is a three-member panel whose members serve six-year terms. Candidates are nominated by the governor, vetted by a judicial nominating board and approved by the Senate. By state standards, they are handsomely compensated; PUC Chair Tony Roisman pulls down a tidy $160,763 per year, and the other two members get $107,182 apiece.
The commission is a hugely powerful body that, in the words of its homepage, “regulates the siting of electric and natural gas infrastructure and supervises the rates, quality of service, and overall financial management of Vermont’s public utilities: electric, gas, energy efficiency, telecommunications, cable television (terms of service only, not rates), water, and large wastewater companies.”
That’s, um, quite a lot.
But if you want any insight into its decision-making process, you’re shit out of luck. The commission conceals itself behind its cloak of quasi-judiciality. Its deliberations are conducted behind closed doors. Commissioners refuse to discuss their work because, ahem, they’re quasi-judges.
This makes their jobs easier, but it is decidedly not in the public interest.
Take, for example, the PUC’s sensible decision to drop the ridiculous six-year persecution of David Blittersdorf for the unpardonable offense of building a meteorological tower on his own property. He’s happy with the ruling, I’m sure. But how about, say, Vermonters for a Clean Environment, who see Blittersdorf as the Devil incarnate? Or the town leaders of Irasburg, who started this whole schemozzle? Would they have wanted the chance to witness the PUC’s deliberations? Would they want the opportunity to get more information from commissioners, if only through the intermediary of the press?
You bet they would.
And if the decision had gone the other way, Blittersdorf would be standing outside the PUC’s closed door scratching his head, wondering how this happened. And wondering how he should behave in the future, in order to avoid entanglement in a secretive process. It’s probably one reason he’s stopped developing large-scale renewables in Vermont.
Commissioners doff their quasi-robes when convenient. They are not subject to the Judicial Code of Conduct. As we saw in the Blittersdorf case, they are not bound by the rules of evidence. (His past conduct in unrelated cases was used against him in the met-tower case.) They don’t have to call witnesses if they don’t want to.
Commissioners can only be removed for cause. Their performance can be reviewed by the Legislature, but that sounds better than it is. Legislative committees have few investigative resources. When they’re reviewing a state agency’s work, the agency itself is the predominant source of information.
Want more bad news? The commission doesn’t have deadlines. The Blittersdorf case, which involved a minor issue by PUC standards, dragged on for six frickin’ years. When you look at the case summary, you see delay after delay, postponement after postponement. The PUC is under no real pressure to be efficient. Its work is subject to performance metrics — but the PUC itself has crafted its own metrics, and you can guess how stringent they are.
The PUC’s influence is only growing. Its purview includes much of what we need to do for fighting climate change and cleaning up our lakes and waterways. It will oversee the coming transformation of our energy systems. It will have a say in our efforts to provide universal high-speed internet.
This can’t be a matter of “We’ve Always Done It This Way.” It’s far too serious for that. For the sake of Vermonters, our economic competitiveness, transparency and regulatory efficacy, it’s time for serious reform, if not comprehensive reinvention, of the Public Utility Commission.
Perhaps readers should know that former State Rep. Margaret Cheney (D) is one of the three PUC members, AND that she is married to none other than Peter Welch (D), who just happens to sit on the U.S. House of Representative’s Committee on Energy & Commerce. Convenience is only the half of it.
I guess you missed Gov. Scott’s idea, via Executive Order issued in January, to replace the Natural Resources Board with a professional board like the PUC. Yep, it can happen again. The NH siting commission deliberates in public. I’ve heard it’s fascinating. And thanks for mentioning VCE, except we aren’t haters and don’t view people as you portray, unlike the renewable industrialists who come after people and try to shut them down for helping people participate in the regulatory process.
John, the PUC is indeed a judicial body, a finder of fact whose orders have the force of law. Like our district courts, it has the powers of a court of equity. Its authority is set in statute (Title 30) and it is bound by precedent, the rules of evidence, and administrative procedures as our other courts are. What makes it “quasi” is that it is not merely a resolver of disputes. It has a duty to reach decisions that “promote the public good.” And with that, it rightly has the power to initiate proceedings on its own motion (sui generis). I don’t think it’s right to insinuate that it “hides behind” this quasi-judicial nature to act arbitrarily and with impunity. Its decisions are written and must be based on the law and on evidentiary record that it is developed in hearings, with sworn testimony subject to cross-examination and penalties if perjurious. And they can appealed to the Vermont Supreme Court (and occasionally are). Appointments to the PUC are made in the manner they are, and the terms staggered, so as to insulate its decision-making, as much as possible, from political interference. But it is a human institution and, like all such institutions, imperfect. Reforms may very well be in order, but be careful what you wish for. For every put there’s a take. I can point to changes in Massachusetts and Connecticut, for example, that can be seen to have undermined the independence of the regulatory process. But I must say that I’d be unlikely to conclude, on the basis of single case, that comprehensive reform is needed.
I was for eleven years an economist and hearing officer for the PUC (then called the Public Service Board). In the some twenty years since, I have advised governments on regulatory matters, with any eye to reforms that will accelerate action on climate change. I’m not defending the Blitersdorf decision or criticizing it. I haven’t read it. But I’d be more than happy to sit down with you to answer your questions about the Commission and to dig into its raison d’etre, its virtues, and its vices at your convenience.
I see that I mistakenly left out “the” before “evidentiary.” Please feel free to make that correction.