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Understanding the Public Service Commission: Part 3

Understanding the Public Service Commission: Part 3

In Part 1 of this series, we gave an overview of the Montana Public Service Commission (PSC), including a brief history and a description of key elements of its role and structure. In Part 2, we focused on the PSC’s role in energy-related issues, and specifically on three important electricity related responsibilities: creating customer classes and setting rates; overseeing long-term planning processes; and setting contract terms for Qualifying Facilities.

This third and final installment of this series will focus on how to engage with the PSC. We also discuss PSC rulemaking and contested case processes, using the cost-benefit study on distributed generation as an example.

Involvement at the Public Service Commission

There are a number of ways of engaging with the PSC, and the method and number of opportunities to do so often depend on the specific issue being discussed. In general, there is usually an opportunity for public comment on issues before the PSC, however the method, timing, and impact of providing that comment will vary depending on various factors, which are described below.

To Begin: Understanding Dockets

When the PSC looks into an issue they do so by opening a docket. A docket, by definition, means “a formal abridged record of the proceedings in a legal action.” In short, dockets are the PSC’s way of keeping track of the issues they are discussing. When opened, dockets are assigned numbers. As an example, when the Commission was setting the minimum information requirements for the cost-benefit analysis of distributed generation, the docket was number “D2017.6.49” because it was filed in June of 2017 – the first four numbers are the year, the next is the month, and the last is an index.

Dockets are hosted on the PSC’s website, with each docket getting its own unique, public webpage. This is the place to go for all of the information about a docket. There is no running list of dockets that the public can scroll through, but there is a search function that allows you to look them up via the number (if you know it) or keywords.

PSC docket example
Example of an online docket listing on the PSC website

Rulemaking versus Contested Proceeding

The PSC will settle an issue and make its decision using one of two processes: 1) a rulemaking or 2) a contested proceeding.

A rulemaking is exactly what it sounds like – the PSC creating or modifying a rule that governs PSC processes. Rulemaking is less formal than a contested case, and generally affords easier access for direct public participation. This is partially – but importantly – because a rulemaking proceeding does not necessitate having a lawyer in order to participate. Rulemaking processes often include informal meetings and/or hearings. They also generally include multiple opportunities for public comment. These opportunities usually happen once a rule is proposed by the PSC. The Commission proposes a decision or ruling, and then takes input on it and considers that input when making its final decision on the issue. It’s important to note that in a rulemaking proceeding, the public comment becomes part of the record and can be referenced when a Commissioner justifies their vote. Public comment can come from anyone: advocacy groups, businesses, individuals, etc. Public comment is most often filed by mail or via an online portal on the PSC’s website.

One examples of an issues that was addressed by a rulemaking was setting the minimum information requirements for the cost-benefit analysis of net metering. The PSC issued a notice of opportunity to comment to gather input from the public. After doing so, the PSC staff and Commissioners hosted work sessions to discuss the issue. The Commissioners then issued their ruling. MREA tracked that process on its Policy Blog. The post from June 28, 2017 details the beginning of the process. The post from August 31, 2017 details the PSC’s final ruling.

Members of the public can always contact their Commissioner, or commission staff, directly by phone or email. These can be found on the PSC’s Contact Us pages for Commissioners and for staff. When specifically looking for public comment on an issue, the PSC will usually post a “Notice of Opportunity to Comment” to the docket webpage.

A contested proceeding is more akin to a court case. To become formally involved, one must apply to intervene in the docket. Intervening means you are a formal party to the case and will have significant involvement. It is important to note that when applying to intervene, you must demonstrate that you are directly affected by the issue or have a strong vested interest. Intervening also means that you are subject to the formal procedures that govern the process. Intervenors can file testimony, provide evidence and witnesses, and are subject to cross examination. They are also subject to discovery, which is a process by which any party can make “information and data requests” of the other parties. This can be anything from actual data requests (like spreadsheets) to clarifying questions about someone’s testimony. Contested proceedings typically require a formal hearing. Participating in a contested proceeding usually involves hiring an attorney. While an attorney may not be required, intervenors generally always retain a lawyer in order to more effectively navigate the processes mentioned above.

Those who do not intervene in a contested case docket can still be involved, but to a more limited extent. There are usually opportunities for public comment. Just as with a rulemaking, any party can make public comment. Unlike a rulemaking, however, public comment is not part of the official written record for the hearing. It may still be reviewed by commission staff and/or the Commissioners themselves, but it is not something that should be used or referenced when a Commissioner is making their decision.

An example of a contested proceeding would be a rate case. In this process, the Commission begins by putting out a notice giving parties a deadline to request to intervene. In that notice, they often include a deadline for any party who does not plan on intervening to provide comments. Rate cases are particularly important, since they are guaranteed to affect the entire utility’s customer base. As such, there is an even more detailed and robust process. Per the PSC’s website:

"When a utility applies to the PSC for a rate change, the PSC alerts affected ratepayers though legal notices to local newspapers and press releases. Major rate cases usually receive widespread media coverage. Interested parties actively participate in the ratemaking process by intervening in the case. Intervenors normally represent large groups of utility customers and, in order to effectively participate, they usually hire legal counsel and expert witnesses to present their points of view. … Formal hearings held by the PSC in rate cases are mostly technical in nature. Individual consumers are welcome to testify, either at the formal hearing or at hearings scheduled by the PSC specifically to gather public comments on the utility's rate change proposal."

We discuss how to become aware of issues and dockets in more detail below.

The Montana Consumer Counsel

Montana Consumer CounselThe Montana Consumer Counsel is a state government office and an important resource to the general public, so much so that it is enshrined in the state’s Constitution. The purpose of the Consumer Counsel is to represent the public interests in key venues at the state and federal level. As mentioned above, certain dockets require legal counsel and take a very formal, court-like process. This can be prohibitive for members of the general public, who may not have the time, resources, or expertise to get involved in a docket. Thus, the Consumer Counsel is charged, by state law, with representing consumer interests in front of the PSC as well as other state venues such as the Legislature, either during a legislative session or during the interim. They may represent consumers at certain federal proceedings as well, including in front of the Federal Energy Regulatory Commission (FERC).

The Consumer Counsel office has a lead counsel, as well as several staff that includes economists, analysts and administrative staff. The head of the Consumer Counsel is appointed by the Legislative Consumer Committee, a four-person subcommittee of the Legislature made up of two Senators and two Representatives. The Consumer Committee is required to meet quarterly to receive updates about staff activities and discuss any other matters relevant to the office of the Counsel. Those meetings are public, and include time for public comment at the end of the meeting.

Currently, there is no robust process for the Consumer Counsel to gain public input on issues and proceedings. While there are opportunities for public comment at those quarterly meetings, there is no description on the Counsel’s website or elsewhere that describes the process by which the Consumer Counsel determines its positions and gets input from the public.

The Consumer Counsel is based in Helena, and can be contacted using information from their website.

How to Stay Informed

There are several ways to stay informed about PSC proceedings. This depends on the desired level of involvement. On the more involved end of the spectrum, the PSC has a number of email lists that you can sign up for. There is one, for example, that sends email notifications every time there is a new docket is opened. You can even choose to get these initial filing notifications only for a specific energy provider. Another email list posts the PSC’s work session agenda for the upcoming week, detailing the issues that Commissioners will be discussing. Many of these lists cover everything under the purview of the PSC – from telecommunications, to energy, to water, etc. If you are only interested in certain topics, some of these lists may be too much information. However, it is also the best way to ensure you get the greatest amount of information. There are numerous other lists that are all listed on the sign-up page. You can always contact PSC staff for questions about what information is included on each list.

If you are more interested in hearing about only those dockets that are relevant to energy issues, the best method would be to stay informed through an advocacy group. Several advocacy groups in the state keep their members up-to-date on the most relevant issues the PSC is overseeing. Staying informed through an advocacy group (like MREA!) can also be beneficial since the organization may already be intervening in a given docket. This ensures that you are note only staying informed, but that your concerns have a voice when the PSC takes up an issue.

What’s next?

That’s it for this series, but the discussions about the PSC and about distributed generation and net metering are far from over. Stay informed on the issues by becoming an MREA member, continuing to read about our Policy & Advocacy work, and signing up for our e-newsletter. And of course, please help spread the word about the importance of the Public Service Commission!

If you would like to learn more on this topic, we encourage you to join MREA for our upcoming workshop series, “The Unknown Energy Battleground: Understanding the Importance of the Public Service Commission.” We will be bringing a presentation and local experts to Billings, Bozeman, Missoula, Great Falls, and Helena in October.

Sources for this series are listed here. The purpose of these articles is to help inform the public about the purpose and function of the Montana Public Service Commission. MREA does not and is not endorsing any candidate(s) running for election.

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