[BETA] Fortnightly

Having now passed a rule that takes very few chances, the FERC must decide what's in store for investors.

Whatever happened to the Sunshine Act - the law that tells government officials to hold their meetings in the open?

That's what all of us in the trade press wanted to know on Dec. 15, when Chairman James Hoecker kept us waiting all morning and well into the afternoon, while he and his cohorts at the Federal Energy Regulatory Commission debated in secret on the ninth floor over the future of the electric utility industry. Any fight over policy (they must have been fighting) was kept hidden. Tired of waiting, I wandered across the hall to try out the salad bar in the FERC's "Sunshine Cafe," and sat down with a reporter from Energy Daily. By the time the commissioners came downstairs at 1:30 p.m. to convene their 10 a.m. meeting, they had ironed out their differences. The deal was done. The stage set. A media event.

The anticlimax saw the FERC vote 4-0 to approve Order 2000. That's the moniker for the final rule issued officially on Dec. 20 to govern regional transmission organizations, or "RTOs." Commissioner Vicky Bailey recused herself from the case (and from the Alliance order of the same date in Docket ER99-3144), which may explain why it took so long for Hoecker to get his ducks in a row.

Yet the day was not wasted. On the plus side, the long wait gave us some time to reminisce on press row. We recalled the days of Commissioners Charles Stalon and Charles Trabandt - when you could go to a FERC meeting and actually see policy being made. But no more. Now the chairman builds his consensus behind closed doors. We in the press feel cheated. How did the group reach a decision? What ideas got left on the cutting room floor?

IT WAS CHARLES STALON, BACK IN 1989, who urged a closed-door collegial process for the FERC. He believed that some due process rules actually "distorted" thoughtful analysis and synthesis:

"Sunshine laws ¼ can be and are effective instruments for rendering the desired form of debate practically impossible," wrote Stalon in January 1989, in the newsletter of the American Bar Association's Section of Public Utility Law. He added:

"Sunshine meetings do not facilitate the type of semi-structured discussions whereby the philosophies of individual commissioners are honed by staff analysts and other commissioners so that substantive objectives find majorities."

Stalon thought that Sunshine Law procedure was deficient because it encouraged commissions "to be passive." He explained further that the adversarial system of due process encouraged regulators "to limit their decisionmaking knowledge to the official record of the case."

Some might see in that a good thing, but Stalon demurred:

"[C]ommissioners ¼ are increasingly told by the courts that they may not impart that general awareness or expertise into particular cases unless some basis for it has been put there by the lawyers. In short, a commissioner must not merely use the record, he or she must deliberately cultivate ignorance