How we got to this version of the rule is a story of successful advocacy by groups like The Alliance, who have long fought for increased transparency. The initial rule would have had a chilling effect on non-profits and individual Louisianans, impairing their ability to represent themselves in front of the Commission all while holding corporate utilities and industrial customers to a far lower standard. Thanks to strong pushback and a responsive Commission staff, the PSC will soon vote on a revised and pared-back version of the rule – a win for transparency, and for Louisianans speaking up at a time of great uncertainty.
In March, a report from right-wing New Orleans-based think-tank, The Pelican Institute for Public Policy, claimed out-of-state money was funding “anti-Louisiana” advocacy. Soon after, during the PSC’s April Business and Executive Session, Commission Chair Eric Skrmetta proposed a rule to require all parties who formally intervene in Commission proceedings to publicly disclose any and all out-of-state funding. That’s not only the amount and sources of money received from sources based abroad, but also money received from any out-of-state individuals and entities.
Louisiana has already defined “foreign countries of concern” through state statute, which includes any government or non-government person labeled a “foreign adversary” by the federal government’s Secretary of Commerce.
According to the federal regulation, “foreign adversaries” are any governments and foreign non-government persons who have “engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.” Those include:
The first proposed rule called out the need to identify potential interference from “foreign countries of concern” and advance the state’s “energy dominance.” In order to comply, the initial proposal would require all parties to submit statements and sworn affidavits each and every time they participated in the regulatory process–which would have been a tall order for any organization, let alone for smaller, community-based groups or individuals with fewer resources. So while the goal may not have been unjustifiable, in practice, the rule would have made it exceedingly difficult to intervene during a time when the Commission is set to make decisions that will affect our state for years to come.
“This rule is being considered in a time when there’s an awful lot on the table. An awful lot is at stake, an awful lot is at risk associated with new projects with a very rapidly changing utility industry…And it has been our concern that this rule is intentionally coming at this time. When organizations like the Alliance and others are asking hard questions, a rule like this seems to seek to chill that effort and to slow the questions and the advocacy that we and others are doing.”
The Alliance, having long championed greater transparency in regulatory and other policymaking processes, supported a rule in principle. However, we alerted the Commission of several issues with the proposal, including disparate treatment of non-profits (like The Alliance) and trade associations, challenges to compliance under the strict definition of funding sources originating “from outside of Louisiana,” undue burden on residents intervening on their own behalf, and more. In the face of rising costs, massive data center buildouts, and decreasing reliability, we should be making it easier for interested parties to participate, not harder.
During the initial comment period, Commission staff heard the concerns of a broad array of stakeholders. Even the Pelican Institute pushed back, claiming they did not directly lobby for such a rule. A second version was proposed, and while it improved on the first by narrowing reporting requirements to singular disclosures of the percentage of funding that comes from out of state, rather than individual donors, residents and small groups would still face compliance obligations that would hinder participation. Additionally, it failed to address some of the main issues groups had raised. Large, publicly-traded companies like Entergy still had it easy; they were required to solely disclose their parent companies and major shareholders, rather than listing all out-of-state investors.
After a second comment period, in which The Alliance submitted additional feedback, the Commission once again revised the rule. The current version excludes reporting on funding from out-of-state entities, further limiting reporting requirements to funds that can be traced to “foreign adversaries.” Those include people, institutions, or governments located in the People’s Republic of China, Cuba, Iran, North Korea, Russia, and the “Venezuelan regime of Nicolas Maduro.” Each year, intervenors must report these funds and provide a statement certifying that the intervenor is not an agent of or lobbyist for these foreign adversaries or owes a foreign adversary $50,000 or more.
After dropping the matter from the August meeting to allow time for further comment, the Commission was expected to rule on the revised rule at the September B&E. However, it was not on this month’s agenda. The Alliance now expects it to be heard during the October B&E in New Orleans. AAE will continue to keep you updated on this important rule, and as always, will continue to fight for transparency and fairness.
