Across the country, state officials, power companies and environmental advocates are participating in closed-door meetings to discuss the future of the Clean Power Plan.
While state agencies have made parts of their planning talks public, transparency experts say the common practice of holding parallel private discussions could deprive people of insight into preparations for a regulation that stands to affect power prices and public health for decades to come. They also say it may give utilities an early opportunity to sway discussions to their benefit.
"People tend to not trust what they can't see," said Kevin Goldberg, a lawyer who focuses on First Amendment and Freedom of Information Act protections. "The question that gets asked is, 'What are you hiding from us?'"
State officials and other organizers say closed meetings are perfectly legal. They argue that publicizing the discussions would make it difficult for agencies and companies to hash out technical questions and speak freely about their options.
"It's not really anything out of the ordinary," said Doug Scott, a former Illinois regulator who organizes Midwestern state meetings through the Great Plains Institute. "No decisions are getting made in these meetings. This is an educational thing for the states that choose to be in there."
But government transparency advocates like Goldberg say just because closed meetings are ordinary doesn't make them OK.
What does it mean to 'put pencils down'?
Before the Supreme Court froze U.S. EPA's Clean Power Plan in February, even state political leaders who loathe it had begun to hold open meetings on the rule.
State agencies were moving forward, propelled by a now-defunct September deadline for submitting initial plans. Industry observers expected to get an important early look at the positions of states around the country.
Meetings in those states were getting little mainstream media attention. The documents they released were complicated and difficult to understand. But for the first time, consumers could expect comprehensive information about how their power companies viewed clean energy and what they might do to increase that type of generation.
Now, many states have halted or slowed their official work, and talks have moved further out of the public eye.
According to dozens of interviews and documents obtained by ClimateWire, air officials and electric regulators have continued to hold private talks within their states and to attend conferences and multistate meetings related to the rule, often to review interstate issues and power-sector modeling.
At these multistate meetings, some officials are from states whose governors oppose the rule. Often, industry and advocacy interests are present, too. Organizers argue that the meetings are closed to the public and reporters to spur frank discussions when political tensions are high.
Public meeting laws vary from state to state, but they usually don't kick in unless a quorum of electric regulators who oversee power prices and company profits are in the same conversation and are discussing policies they are actively considering. The laws don't apply in the same way to air officials in charge of coordinating state compliance with the Clean Power Plan. But decisions by both sets of regulators could affect how much consumers pay for electricity as utilities make carbon reductions.
In Arizona, the Department of Environmental Quality, which has had a robust public process, has simultaneously held private meetings with a technical work group of utilities and a few clean energy groups and consumer and environmental advocates. Those meetings date back to August 2014. Parallel public meetings did not begin until September 2015, according to public records obtained by ClimateWire.
The last public meeting was March 1. Since then, the private group has met twice. The private meetings have covered a broad range of questions related to the rule, including how companies might fare under different compliance schemes. DEQ has posted materials and meeting summaries from the closed meetings since January, when members of the public said they wanted to know more about what the group was discussing, according to a DEQ spokeswoman.
Amanda Ormond, a participant representing the business group Advanced Energy Economy, said the group is balanced with enough people to represent consumer interests.
"I have never, ever gotten a feeling that the technical advisory committee meeting was supposed to be any kind of private," Ormond said. "They have been selective on who's on there, but I don't feel like they've withheld information."
Similarly, Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, said DEQ seems interested in engaging with parties other than utilities. But, as she said late last year, "you worry a little bit about whether or not you're going to just get patted on the head."
DEQ said the technical work group is exclusive "to allow for back-and-forth discussion of the technical issues ADEQ seeks advice on." The agency plans to continue to hold public meetings quarterly, while technical work group meetings will be more frequent, every six weeks to two months.
While Arizona has had open and closed meetings, other states have held private meetings without organizing public components or publishing related documents. The New Mexico Environment Department held closed, separate calls with utilities and environmental groups, which ClimateWire later covered based on a public records request (ClimateWire, Dec. 21, 2015).
Out of sight, out of mind?
Meanwhile, in many multistate meetings, officials are now gathering under the "Chatham House Rule," according to which attendees can share information about the talks but cannot attribute it to a particular person or state. Many have called it the "no regrets" process because it allows state officials to talk about options without committing to them or looking like they are enthusiastic about the rule.
After one conference sponsored in April by the Northwestern University Pritzker School of Law Searle Center on Law, Regulation and Economic Growth, Program Manager Derek Gundersen said "the very nature of the event was intended to provide an environment for open dialogue amongst the utility commissioners and industry representatives."
"In order to foster this open dialogue, no efforts were made to memorialize or publicize the proceedings," Gundersen said, adding again that "the very nature of the event would preclude us from involving press of any kind."
The agenda covered broad discussions about changes in the energy industry, and the second day featured a panel on the Clean Power Plan. A publicly released roster of attendees lists more than a dozen utility commissioners from various Midwestern states and representatives from several of the utilities they regulate.
The Illinois Commerce Commission had three electric commissioners present, although a spokesman said they did not violate rules because they did not attend the second day, did not congregate and did not discuss policy. ICC spokeswoman Danisha Hall said commissioners attend conferences mostly to network and learn from the experiences of other states.
In Illinois, the attorney general's office is in charge of making sure agencies aren't acting improperly. It oversees more than 7,000 public bodies ranging from rural local governments to school boards. Staffers get about 400 requests a month to review Freedom of Information Act requests that were denied and potential public meeting law violations. Residents must make a complaint in order for the attorney general's office to investigate.
Maryam Judar, executive director of the Citizen Advocacy Center in Illinois, said that although private meetings and conferences may not go against the rules, they are problematic both practically and for optics. She said regulators should provide advanced public notice of these sort of meetings "out of an abundance of caution."
Goldberg argued that adhering to meeting laws should be only "a basic minimum standard."
"If something coming out of this results in a final decision, by the time you get that final decision, you lose a lot of the process," he said. "You're not seeing the background."
Scott, the former environment and electricity regulator from Illinois, argues that states are only exploring options now, not making decisions. "In each state, they're going to have to justify what they've done publicly," he said.
He also noted that when states within the Midcontinent Independent System Operator or the PJM Interconnection LLC grid organizations are meeting privately, no industry interests are present. In addition to those meetings, grid organizations have continued to host public meetings and publish modeling results.
Scott believes that as long as state agencies follow the rules, it's good for them to be talking with power companies and other interests.
"My philosophy was if it wasn't a docket item, if I could meet with someone when I was an ICC commissioner, I would," Scott said.
Electric regulators likely won't see specific Clean Power Plan dockets until state air agencies send plans to EPA and start enforcing them. Then, utilities will go to electric regulators to get related costs approved.
Looking beyond state borders
State officials also hold Clean Power Plan talks in their national organizations. The association of electric commissioners makes meetings public, while the association of air agencies does not.
In other closed multistate meetings, the Clean Power Plan was focused on specifically. Organizers have said state officials are attending to understand the rule and share information about how their actions might affect one another.
Many of the Midwestern states attending meetings coordinated by the Great Plains Institute are opposed to the Clean Power Plan, Scott noted. That makes talking about the rule touchy for them, and that is partly why the group uses the Chatham House Rule.
The decision to plan for the Clean Power Plan or wait for a final court decision is more political than ever. After the Supreme Court issued its stay, GOP governors happily announced they were calling it quits and would spend no more money on preparing for the regulation.
The Center for the New Energy Economy, which organizes Western state meetings, has declined to list which 10 of the 13 original states are still participating. CNEE originally posted meeting materials but could not provide documents from a meeting in early April.
"It's not that there's meant to be some shroud of secrecy around these meetings," said Patrick Cummins, the group's project leader. "From our perspective, though, we would prefer to let the states that are participating to speak for themselves about their participation."
Cummins said the Western power grid and state policies are undergoing huge changes, and a recent meeting in early April was basically a roundtable with states updating each other on those changes.
In the Southeast, where most states have stopped official planning, Duke University's Nicholas Institute for Environmental Policy Solutions uses the Chatham House Rule for its multistate energy workshops.
"Our workshops are designed in a way to foster peer learning across state borders," said Jonas Monast, the institute's climate and energy director. He added that the Nicholas Institute has published white papers related to the topics explored in state discussions. The Nicholas Institute shared a meeting agenda from January but did not release one from May.
Monast said the Chatham House Rule is a "commonly used strategy to foster an open exchange of ideas."
Goldberg said it's "backward thinking" when officials claim they can't speak openly and in public.
"If people want to be transparent ... there are ways to do that, and the end result will be more trust in the final decision," he said.
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