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Eric Davis: Public Service Board process truly flawed

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Posted on September 17, 2014 |
By Eric L. Davis



Readers of Charles Dickens may recall the case of Jarndyce v Jarndyce in Dickens’ novel “Bleak House.” Jarndyce v Jarndyce was a case involving an inheritance that dragged on through the Court of Chancery for generations, to the point where the fees of the lawyers on both sides consumed the entire estate. Dickens used Jarndyce to mock the complexity, and the impenetrability, of the English civil legal system.

Vermont has its own complex and impenetrable legal institution, known as the Public Service Board. Regardless of one’s views on the merits of the Vermont Gas pipeline in Addison County, or on large-scale wind energy projects in other parts of the state, the PSB process is currently weighted toward the interests of utilities and against the interests of towns and individual citizens. That process is dominated by lawyers who both make the PSB rules and use those rules to advantage their institutional clients.

The Legislature would do well if it were to enact some procedural reforms in the regulatory process that would even the playing field among utilities, citizens and municipal governments. These reforms could include:

•  Removing the task of representing the public interest before the PSB from the Public Service Department, which is subservient to the governor, regardless of his or her political affiliation, and placing it in the hands of an independent agency, with a director appointed for a fixed term that overlaps gubernatorial transitions. This model is used in many other states, including Connecticut, Maine and New Hampshire.

•  Establishing term limits on the PSB, to require rotation in office on the board. Currently, the board consists of three members appointed for renewable six-year terms. It has not been uncommon for members of the PSB to serve 12 years or more. While a certain amount of service is needed to develop expertise in utility regulation and siting decisions, very long-term service can lead to members being captured by the utilities the board is supposed to regulate. PSB members should be limited to one full six-year term, plus a shorter term if they were first appointed to complete someone else’s term.

•  Allowing testimony at public hearings to become part of the record on which the PSB makes its decisions. Currently, the board holds public hearings in communities affected by a project, but those hearings do not count in terms of the board’s decision, because the speakers are not testifying under oath subject to cross-examination, as is the case at the PSB’s technical hearings. The public hearings are the only opportunity for many citizens to have their say on utility projects. On-the-record hearings would make those citizen comments count for much more than they now do.

•  Allowing towns and regional planning commissions that oppose a utility project in their communities to have a “rebuttable presumption” of the correctness of their views. This would not be an absolute veto for local governments affected by a project, but would place the burden of proof on the utility to convince the PSB of the value of the project in spite of the local concerns.

•  Establishing a fund to cover some of the costs of legal representation for local governments and property owners affected by a matter before the PSB. The state now pays for legal representation for indigent defendants in criminal cases. While the loss of liberty due to expropriation of one’s property for a utility project is not comparable to potential imprisonment or other criminal sanctions, property owners do have liberty interests, and some assistance with legal representation in such cases would be appropriate.

Eric L. Davis is professor emeritus of political science at Middlebury College.

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