Transcript: Listener Request: Day-to-Day Work
MALE: You’re listening to Environmentally Speaking, a weekly podcast diving into legal matters surrounding the environment, public utilities, energy, zoning, and permitting laws in Rhode Island and the surrounding areas with your host Marisa Desautel.
CLARICE: Good morning, everybody. And thank you for tuning in to Environmentally Speaking. One of these days I’m just going to come on and do a big good morning, Vietnam, but I want to check our average listener base first.
MARISA: Also, I appreciate that heads up because that will give me time to cue up some good Credence Clearwater Revival.
CLARICE: Oh, that would be nice, yeah. That would be very nice. Well, everybody, on this lovely Friday morning I’m Clarice. I’m coming in with our questions and topics and apparently I’m going out of order.
MARISA: Which is fine. Mix it up a little. I’m Marisa Desautel an environmental attorney in Rhode Island.
CLARICE: And we got a lovely listener request today. So as some of you may or may not know, even though a podcast is in audio format we do also have videos up on YouTube, so if you want to watch us talk at each other you could do that, too. But somebody wrote in and they wrote, hello, thanks for the video. Thanks for writing in. I have a question regarding the specific day-to-day tasks of your work. I like this. This is something that we don’t often –
MARISA: You know, I have a lot of questions about that, too, so.
CLARICE: I don’t have any answers. I just go through it.
MARISA: I don’t know what the hell I’m doing.
CLARICE: Oh, is the process from which the utilities companies are regulated every time they need to start a new project increase the bills or annual reviews? Do they present you an agenda and documents with the project? Does this document contain budgets, technical explanations, or plans? Once presented how do you evaluate them? So many questions. Hopefully you will help me.
MARISA: Yeah.
CLARICE: Well, listener, we’re going to try.
MARISA: That’s a lot of questions and good questions which makes me wonder if the questioner is in the legal industry because you wouldn’t know that that’s even a thing unless you are somehow involved, I think. More maybe they’re just an avid utilities commission watchdog and they search the docket. You know how some people are on like the CB radio or the police scanner. I wonder if there’s PUC watchdogs.
CLARICE: There are people who come in and listen to court cases all day. They just come out and hang out in like small claims or something.
MARISA: Really?
CLARICE: Yeah.
MARISA: Why?
CLARICE: I don’t know. I don’t do it. If I did it I’d know why.
MARISA: Can we get one of those people on the podcast?
CLARICE: Yeah. I mean, I could go hang out in small claims for a day and find one.
[0:03:01] MARISA: That fascinates me.
CLARICE: I’m wondering if it’s a lack of cable for those folks, no TV drama, must find drama.
MARISA: Well, I know if you go to superior court in Rhode Island and you sit in one of the bench seats long enough the judge and/or the bailiff will and you why you’re there.
CLARICE: Yeah.
MARISA: So it’s frowned upon to go and sit in a courtroom which is weird because it’s a public place. And I suppose it’s more crowded in small claims or district court than it is in superior court, so you can kind of get lost in the grouping.
CLARICE: In the shuffle.
MARISA: In the shuffle.
CLARICE: Well, back to PUC. Do we want to –
MARISA: Thanks for reining me in there.
CLARICE: I’m reining you in now. We have a lot of questions to get through for our listener. All right.
MARISA: What was the first question?
CLARICE: Let’s start with the first one. How is the process from which the utility companies are regulated every time they need to start a new project?
MARISA: Favorite answer, it depends. It totally depends, number one, on what kind of utility we’re talking about regulating, telecommunications, gas, electric, water, water utilities. So I think if I’m recalling the follow-up questions properly, the type of docket or matter that the questions relate to the most I think is probably an energy efficiency docket because those matters review annual plans from utility, three-year plans from a utility, and includes rate review by the utility. It’s a formal docket at the Public Utilities Commission. And let’s back up for just a second here. These questions and this conversation presumes that folks know what the public utilities commission is, right?
CLARICE: Oh, it does.
MARISA: Yes. Have you ever been to the Public Utilities Commission?
CLARICE: Only virtually.
MARISA: In what capacity?
CLARICE: I sat in and listened to a live session.
MARISA: How was that?
CLARICE: Comfortable because I got to be home.
MARISA: Did you have to take notes?
CLARICE: Yes. So I was listening. You had given me a list of certain matters that they were going to be presenting updates on, so I just – it was really easy. I logged in, waited for the session to start. They had a little waiting room screen and I was working from home that day, so I got to listen in my slippers.
[0:06:14] MARISA: Oh, yeah.
CLARICE: It was nice.
MARISA: It happens quickly.
CLARICE: Yes.
MARISA: The dockets at the PUC happen very quickly, so listening and taking notes is actually a – it’s kind of a scramble to make sure you catch everything. The Public Utilities Commission, as Clarice hinted at, is a public body that is charged with rendering decisions about utility operation in Rhode Island. Every state has something like the Rhode Island Public Utilities Commission. They’re all a little different, of course, but this type of activity is regulated at the federal level and at the state level, too.
So the Public Utilities Commission is made up of three commissioners at any given time who sit as a regulatory and administrative body. Again, they’re considered a public body and that means that any time the commissioners are together in a quorum or a simple majority the meeting or the proceeding has to be available to the public for them to listen, watch, and participate if they want. Is that a good enough explanation of the PUC?
CLARICE: I think so. I would say, too, on my first time watching it reminded me very much of a town hall meeting in the sense of some of the formalities in terms of things like all in favor, the way they called the cases. So if you’ve ever sat in on a town hall meeting, there is some of that sort of procedural similarity just in terms of how they communicate and how they announce things.
MARISA: Yes. And at the PUC as well as some other administrative agencies that have proceedings like this, the colloquial term about process and procedure is called superior court light. And that means that – if you ever hear that expression, it means that –
CLARICE: Diet justice?
MARISA: Yes.
CLARICE: Okay.
MARISA: Just until you’re full and then chaos. Superior court uses the rules of civil procedure and the rules of evidence and so does federal court and the other courts to a certain extent. The superior court light reference means that the body sort of follows the rules of evidence and the rules of civil procedure. They’ve got their own. So if you go on the PUC website, you can look up the commissions administrative rules of practice and procedure. In my experience every public body where there’s a legal process involved, they have a separate set of these rules of process and procedure.
So you can take a look at those if you’re interested to see the legal flow of a case in more detail, but for purposes of the questions that we’re asked when a utility is looking to undertake an activity that falls within the PUC’s jurisdiction they have to file something with the PUC in order to open a docket and have the PUC begin the proceeding to consider the activity. Not every utility activity is governed by the PUC. For example, if there’s a human resources issue at Rhode Island Energy the PUC doesn’t get involved. They have a very specific mandate under state law to review certain activities. I think the second question that the listener had for today related to or relates to what the utility does if they want to open a new facility; is that right?
[0:10:36] CLARICE: I don’t know necessarily if it’s a new facility, but the second portion was, do they present you with an agenda or a document with the project, so whatever that new project might be.
MARISA: Project. Okay. So let’s assume that project does not include a new facility.
CLARICE: Okay.
MARISA: Because if that were the case that scoots you on over to another board maybe depending on the amount of energy you’re generating.
CLARICE: Our favorite answer yet again.
MARISA: A rabbit hole. So let’s assume that this is the example that I gave before. It’s the formerly National Grid, now Rhode Island Energy’s energy efficiency annual plan. What the heck is that. That is a statutory requirement of the facility to take a look at something called least cost procurement and to make a determination about their energy efficiency projects. If you open your utility bill, your electric bill, you’ll see that the majority of the cost associated with your bill have to do with energy efficiency programs. So you pay a certain amount for the energy that you’re using. You’re also paying the utility to invest and start rolling into renewable energy. It’s been going on for some time, but, I don’t know about you, when I get a bill I look at it. I like to then compare – I like to look at the little graph.
CLARICE: I love that. See who’s – I’m not sure if your bill – since we live in Mass we have – and I’m sure yours has it, too – who’s most efficient in the neighborhood.
MARISA: Oh, no. We don’t have that.
CLARICE: Ours has this little almost like a meter and it tells you – it doesn’t tell you who, but it tells you what the most expensive house in your neighborhood pays, what the least expensive house pays and where you fall in the middle.
MARISA: Oh, my God. That’s intense.
CLARICE: It’s become this like challenge in our house of like what can we do to be more efficient to get on the better side of that scale.
MARISA: Oh, that’s kind of neat then. I wonder if that was the goal.
CLARICE: I think so. Either way I’m having fun with it.
[0:13:03] MARISA: No. Rhode Island, I just – this is how juvenile I am. I look at the bill and I like to look at the graph because it has the months along the Y axis, or is that the X axis. It has the months along one of the axes and they only include the first initial for the month, so sometimes the graph spells Jason and I just – I think that is the cat’s pajamas. Anyway, so if you look at your bill you can see these energy efficiency charges. Well, those charges come from this particular docket and if the listener is wondering about a project, I mean, that’s a really good example of a change in how the utility is operating, taking on new projects, doing away with old projects, doing a look forward to see what their three-year plan might look like.
The PUC has a full proceeding to approve, deny, approve with conditions the plan that the utility puts forward. And in this context – again, this all comes from state law in Rhode Island – there are various stakeholders that either intervene in the docket once it’s opened or are parties as a matter of statutory right. The statute says the Office of Energy Resources shall be a party, the Energy Efficiency Resources Management Counsel shall be a party, and then you get other folks that are not statutory that file something called a motion to intervene. So if the PUC approves the motions to intervene, that creates your parties for purposes of that docket. And the parties are involved in assisting or making argument to the Public Utilities Commission about why the plan put forth by the utility is a good one or a bad one and what should change about it, if anything.
CLARICE: In going back to this, even before this plan makes it to the point of having the potential of having intervening parties or having those mandatory parties when the PUC puts together a plan the first thing I think of is notice. I’ve noticed that there is plenty of notice coming down the pipe constantly of, this thing is coming up, this thing is coming up, take a look at it. But when they say take a look at it, are there requirements for documents that they have to have, or, again, does it depend on what the type of plan is?
[0:16:06] MARISA: When you talk about notices, are you referring to notices of open meetings –
CLARICE: Yes.
MARISA: — or notice of a new docket being open?
CLARICE: Oh, I guess both.
MARISA: There’s a few different notices.
CLARICE: I guess both. I’ve been on the end of having received both types.
MARISA: The Public Utilities Commission is a public body under the Open Meetings Act, so any time there’s, like I said, a quorum of commission members they have to provide public access to that meeting. So there are those notices that you might get because you’re on a service list as an attorney or an interested party. And in my experience you end up on certain dockets just because you’re involved with the PUC. It’s a small bar in Rhode Island, so you kind of see the same names over and over on docket lists. But there are various notices that you will receive either as a member of the docket or a member of the public if you sign up to receive these notices.
And then depending on the type of proceeding, that’s what dictates what your next step as an attorney is going to be. In the example that I’ve been giving with an energy efficiency annual plan, the client that I represent has a statutory right to intervene, so I just file something called a Notice of Participation which is different than a motion. A motion requires the commission to consider the motion and make a decision on whether you can intervene. The Notice of Participation is, hey, I’m over here and I will be participating, so there’s a procedural difference there.
CLARICE: And for our listeners who maybe, like you said at the top, want to see what these meetings are like or check out some of the things that we’re referencing, I’ve noticed that the PUC’s website is pretty user-friendly in the sense of you can navigate where – there’s a section for notices. There’s a calendar for the meetings, so you don’t necessarily have to be behind the bar to see what’s coming down the pipes on these cases.
MARISA: That’s right. Yeah. And the website was just overhauled. Rhode Island went through all of its agencies and updated or is in the process of updating state websites, so they’re getting more user-friendly.
CLARICE: Oh. I might miss that early ‘90s boxiness, though.
MARISA: There was comfort in that.
CLARICE: You kind of get used to it, right? Yeah.
MARISA: Yeah.
CLARICE: You get used to it.
[0:18:54] MARISA: The last – or not the last question but the other question that I wanted to touch on is whether the utility presents an agenda or a document with the project and does this document contain budgets, technical explanations, or plans. The short answer to that is yes. The docket cannot move forward without subject matter material for the commissioners to review, for the interveners to review through their experts. And then there’s something called the Division of Public Utilities and Carriers. They’re a subset of the PUC and they’re an active party, as well. So you get a notice that a new docket is opening and then customarily you get copied on whatever it is that the utility is proceeding.
That sometimes is thousands and thousands of pages of material including both narrative, technical information, calculations, diagrams. And on top of that, the parties then submit something called prefiled testimony which is totally different than any other civil procedure where it’s typewritten, or, you know, you print it from your computer and it’s the expert providing all of the information that they anticipate testifying about so that the parties can receive the information, read it, digest it, and be repaired for cross-examination during the course of the proceeding. So you’ve got an advanced opportunity to see what every party’s position is going into the docket.
CLARICE: I will say I find that portion for me most helpful because unlike you who has a background in science and who has years of environmental experience, folks, my degree is in political science which just means I didn’t do well in math and also don’t love reading that much, so that’s what I went to school for. So going from the technical calculations part to sitting with the experts, I was like, okay, this helps orient me.
MARISA: Yeah.
CLARICE: This is the part I can read.
MARISA: Definitely. And it’s less of a – ambush is the wrong word because litigation no longer really allows ambush, but it’s less of – it’s a more thoughtful process, I think. When you litigate something you’re playing a little bit of guesswork because you don’t know what your – sometimes you don’t know what your witness is going to say and you definitely don’t know what opposing counsel’s witnesses are going to say. So this process creates a more educated, thoughtful consideration that everyone walks into. You know, you get a lot done. The PUC gets a lot done. They make decisions on things. They keep proceedings moving. There’s not a lot of delay and it happens pretty quick once it gets going.
[0:22:21] CLARICE: Even in those meetings it moves.
MARISA: Yeah.
CLARICE: So I think hopefully, dear listener, I hope we answered your questions.
MARISA: I hope so, too.
CLARICE: I hope this was helpful. Cool. All right. So next week we are going to mix it up a little bit because we have the same birthday and because we like talking about ourselves and we’re not shy about it. Next week’s episode is going to be a lighthearted kind of ask me anything, get to know us, something a bit more casual, less doom and gloom, the world is freezing and heating simultaneously and something a little happier. So feel free to submit any questions you want to know about us to our Instagram. You could also e-mail us at info@DesautelBrowning.com. We also have a YouTube channel, our Facebook, Twitter, whatever method is best to reach us. But we want to hear from you and we want to tell you about us. I saved it. You can’t look at me that way.
MARISA: This is episode 47.
CLARICE: I know. I know, boss.
MARISA: And you don’t know the e-mail address?
CLARICE: Barely.
MARISA: You should write it down. You know, every week I’m like, geez, I wonder why I’m not getting any e-mails. All right. That’s enough.
CLARICE: Have a good one.
MARISA: Bye.
MALE: Thank you for listening to this episode of Environmentally Speaking. If you’re in need of an environmental attorney, we are here to help. Call us at 401-477-0023, or visit our website at www.DesautelLaw.com. That’s www.DesautelLaw.com
