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Renewables & EfficiencyPublic Advocacy Division
The Public Advocacy Division represents the public interest in administrative litigation before the Public Service Board (Board or PSB), covering all areas of the Board's jurisdiction over public service companies. It is also responsible for representing the public interest of Vermont relating to utility matters in all forums where those interests are at stake, such as the Federal Energy Regulatory Commission (FERC), the Federal Communication Commission (FCC), the Nuclear Regulatory Commission (NRC), as well state and federal courts.
Organization of the Public Advocacy Division
Public Advocacy is headed by a director, a statutory appointee who is responsible to the commissioner, and six full- time staff lawyers. Other DPS divisions provide experts, such as engineers, economists, or analysts, and support services for Public Advocacy. Outside consultants are hired to help with some cases.
The Public Advocacy Division's Scope of Work
The Public Advocate is a statutory party in all cases before the PSB. Most litigation work done by Public Advocacy has historically been in utility rate cases that determine whether and how much a utility's rates should be changed because of capital investment and operating expenses. Increasingly, the Public Advocacy Division is involved in investigations of equal magnitude and importance and greater complexity involving deregulation, expanded competition, alternative regulatory plans, siting of transmission and generation facilities, and contracts for purchase of power by utilities. Recently, an increase in cases involving telecommunications policy, both in telephone and cable television, has been significant. Public Advocacy is also responsible for review of proposed utility tariff changes, certificates of public good, electric utility notices regarding power purchases, sales and plant construction, and special contracts and for making a recommendation to the Public Service Board on whether to investigate or approve those filings.
In addition to these traditional activities, the move to introduce retail competition in the telecommunication and to some extent the electric utility industries has brought new concerns about consumer protection and anti-competitive behavior. Over the past year, Public Advocacy has worked closely with and provided support to the Consumer Affairs & Public Information Division on consumer protection issues arising from consumer complaints.
Public Advocacy participates in cases before the Board that pertain to the award of a license or certificate of public good (CPG) that is a prerequisite for companies beginning operations in Vermont or for gas and electric utilities to construct new facilities. The Public Advocate is also required to participate in PSB proceedings on a public service company's request for Board approval to issue stock or take on financing or debt obligations. Public Advocacy represents Vermont citizens and consumers and presents evidence at Board hearings about how the public interest will be affected by actions for which utilities request Board approval. (30 V.S.A. §248 covers new gas and electric purchases, investments, facilities and CPG requirements.) In accordance with 30 V.S.A.§202(f), DPS makes determinations about the consistency of utility proposed actions (issuing stocks, bonds or other financings, or purchases) with the Vermont Electric Plan.
Public Advocacy also works on cases to enforce public service laws, Public
Service Board Orders, and for resolution of significant consumer disputes.
The Concept of "The Public Interest"
The Public Advocate's charge to serve the public interest is broadly understood to mean the long term interest of all Vermonters in reliable, environmentally and economically sound provision of utility services. A primary concern is to secure the lowest possible rates for ratepayers. The public interest, however, encompasses not only the interests of ratepayers, but all parties affected by utility operations, including other consumers, business and industry, and the state as a whole. What serves the public interest may not be the lowest current rates, but rather rates that assure the safe and reliable provision of adequate service over the long term.
Outside the Public Service Board Arena
In addition to its work before the PSB, Public Advocacy represents the public interest in a wide variety of cases before the Vermont Supreme Court, federal district and appellate courts, and occasionally in Vermont Superior Court. The Public Advocacy Division also represents the public interest of Vermont in matters before the Federal Communications Commission (FCC), the Federal Energy Regulatory Commission (FERC), the Securities and Exchange Commission (SEC), and the Nuclear Regulatory Commission (NRC). These administrative agencies have exclusive authority over crucial utility matters such as interstate telephone, interstate transmission of gas and electricity, nuclear power plant licensing, and wholesale power sales. Representing the public interest of Vermont in the deliberations of these agencies has required the Public Advocacy Division to appear in federal circuit courts in Boston, New York, New Orleans, and Washington D.C. Cases before these courts and agencies are only a small fraction of the Division's total case load, but they carry major significance.
Beyond Litigation
A substantial part of the legal staff's time involves legal planning, advising, and drafting. This work is performed in anticipation of foreseeable litigation, so that staff lawyers are prepared to react quickly if such a case were to come up. Litigation can often be avoided by timely negotiation. With the assistance of DPS personnel from other divisions, Public Advocacy frequently reviews proposed construction and tariff filings and meets with utility petitioners to discuss possible settlement of disputed issues.
The Public Advocate and other DPS personnel also work to initiate change that is recognized to be in the public interest. An example of this type of activity is the ongoing scrutiny of utility revenue requirements to determine if rates can be reduced. Public Advocacy and DPS technical personnel are working with utilities on economic development contracts for employers who are moving to Vermont and creating jobs. The goal of these contracts is to create new jobs without causing a burden to other customer classes.
The Public Advocate provides in-house legal assistance to DPS. As does any state agency, DPS requires almost daily legal advice on major and minor matters. Lawyers respond to public record requests, they interpret statutes, review and draft bills during the legislative session, and they interpret and explain to DPS personnel the essential steps to follow in federal regulatory requirements.