Building Anti-racist Regulatory Processes

NEWHAB members came together around a simple statement: exclusion is a form of racial violence. Using our experiences in the regulatory process for water and energy utilities, we asked ourselves what we know about building more anti-racist regulatory processes for all utilities on the path to a Just Transition. What follows is not a design of the end-state, but an early assessment of knowledge, resources, and examples from within our own circles.

Energy Democracy states that, on the path to a just energy transition we must have 3 things: “a right to information; spaces for effective and meaningful participation in decision making; and mechanisms for redress.” In the following we organize our discussion and thoughts in the same way.

Spaces for Effective and Meaningful Participation

If we are to uphold the patchwork of regulatory practices across the United States as the best form of governance for water and energy utility systems, we must guarantee that these regulatory processes are both open to participation with as few barriers as possible and that these processes enable and protect public participation, not exclusively built to hear the viewpoints of the utility they’re designed to regulate.

We divide the observations about barriers to participation into two parts - resource barriers and cultural barriers - while acknowledging that the line between them often blurs. We also know, from experience, that this frequently means that the needs identified, solutions offered, and decisions made for utilities is done without the participation of Black communities, brown communities, and other disenfranchised groups, including undocumented immigrants.

Structural barriers:

1. In many regulatory environments across the United States, participation requires significant resources (time, money, research) that a lack of constitutes a barrier to true public participation.
2. A majority of the persistent poverty counties in the U.S. are serviced by electric co-ops, which have a lack of board representation from the communities in their service area.
3. In some regulatory environments, participation requires certification or specialized training, like being an attorney, either in statute or by administrative precedent.

Cultural barriers:

1. Participation is often limited within “professional” working hours from 9-5pm, which limits participation to those for whom participation is their paid job.
2. Participation is often limited to specific formats that might exclude communities for whom English is not their first language or give preference to those who have mastered a style of legal writing.
3. Especially in open proceedings before a public service or public utility commission, the administrative process often limits engagement to be in favor of protecting the utility, rather than inviting engagement that should be required for the governance of an ‘essential service’ as utilities have been defined to be.
4. Administrative processes are often highly technical, and agencies do not make an effort to explain in plain terms a proceeding’s subject matter, goals, schedule, thereby limiting basic information, the ability to participate, and to seek redress to certain participants.

A Right To Information

Regulatory decisions have high impact, and are therefore taken seriously, with many decisions requiring a large body of evidence and argument in order to reach a conclusion. However, by and large, data that is needed to make effective arguments about the impact of utility service on people of color is not publicly available. As a result, even if structural or cultural barriers were removed overnight, a lack of information would still impede progress towards more just outcomes in the water and energy utility world.

Information needs:

1. Using survey data from the American Council for an Energy-Efficiency Economy (ACEEE), we know that the cost of utility service as a percent of income is highest for low income people. Their September 2020 report on energy burdens sheds light on how unevenly distributed high energy burdens are across race and income. However, the utility companies themselves hold data that might shed more light on how disproportionate this burden might be, especially by zip code or by census tract, and are not required to share this information publicly in most cases.
2. Using survey data from the U.S. Energy Information Agency (EIA), we know utility shutoffs disproportionately harm Black people and other people of color, even when controlling for income. Utilities also, with the exception of a few states, withhold information about people who have had their utility service shut off at a level of detail sufficient to provide solutions, by zip code and by race.

Mechanisms for Redress

Remove barriers to participation.

• Require agencies to solicit feedback from a range of technologies including submitting forms on website, written comments, and holding hearings in community locations are within the community geography of the most impacted customers.
• Include considerations for remote access and longer durations for accepting public input, time of day of holding virtual or in-person meetings, and providing appropriate translation and interpretation to ensure all customers can participate.
• Remove requirements that participation be limited to attorneys.
• Encourage greater participation by avoiding litigated proceedings and providing for informal processes that are more transparent and accessible.

Remove barriers to accessing information

• Require administrative agencies to increase transparency and public access to their processes by providing, in plain terms and relevant languages, information concerning the topic, goals, and schedules of their proceedings.
• Require administrative agencies to provide online portals to easily, and at no-cost, access filings of all parties in commission cases.

Provide intervenor compensation & technical assistance in every state public service or public utility commission.

This can significantly increase the participation in regulatory processes by community groups by compensating for the labor and expertise they provide to the public process. The National Consumer Law Center provides a guide to Intervenor Compensation. (This resource can be shared individually with NEWHAB members by contacting Charlie Harak at charak@nclc.org.)

According to a review by Public Citizen, only 7 states have statutory intervenor compensation in some form: California, Colorado, Idaho, Maine, Michigan, Minnesota, New Hampshire, and Wisconsin.

Address lack of representation in decision making for all state electric utility cooperatives and public utilities commissions.

• According to Ballotpedia, across the states with Public Service Commissions, in only 11 states commissioners are elected, in only 2 states are they appointed by the legislature, and in the remaining states they are appointed by the Governor.
• 93% of the 353 persistent poverty counties in the U.S. are serviced by electric co-operatives (National Rural Electric Cooperative Association, NRECA)
• Based on a survey of Mississippi electric co-ops alone, it was found that “The State is 37% African American and 52% female. However, Mississippi’s electric co-operative boards are only 6.6% African American and 4% female.”

Emerging efforts within NEWHAB members’ organizations:

• NCLC: Utility disconnection research across the country [John Howat]
• NCLC: Utility bill of rights