The Federal Energy Regulatory Commission (FERC) is proposing to throw a cloak of secrecy over a large amount of information related to the regulation of electric power and other energy facilities -- some of the most important environmental decisions government makes. It could take final action within months.

FERC licenses power plants, oil and gas pipelines, interstate power lines, hydroelectric dams, and other energy infrastructure which often has significant impact on the environment. Reporters who want to cover such decisions, and environmental and industry groups wanting to influence them, had access to most official filings through a public docket system before 9/11.

This year, sparked by post-9/11 terrorism concerns, FERC proposed sharply limiting public access through FOIA to documents used in its decisionmaking when they contain "critical energy infrastructure information" (CEII). FERC also proposed making journalists sign confidentiality agreements.

The move was strongly supported by many privately owned energy companies and their trade associations, such as the Edison Electric Institute (EEI) and the Alliance of Energy Suppliers (an EEI division).

"... EEI and the Alliance strongly support the Commission's goal of protecting information about the nation's energy infrastructure from inappropriate disclosure," EEI commented on the official docket. "The Commission's proposal to limit the distribution of sensitive information about energy facilities is a necessary and prudent measure to help safeguard these facilities."

Many private electric utilities, producers, and distributors have long sought to suppress information about their facilities on grounds it could give competitors an edge. Less enthusiastic about the proposal was the American Public Power Association (APPA), whose members include publicly owned utilities less driven by the profit motive.

"APPA urges caution on the part of the Commission, to ensure that the classification of information submitted to the Commission as CEII for national security purposes does not frustrate the Commission's public policy goals of creating competitive, reliable energy markets and ensuring broad public participation in regulatory processes before the Commission," APPA commented.

Opposing various aspects of the FERC move were a number of journalism groups, trade publications, conservation groups, and open-government groups.

Platts, a division of McGraw-Hill publishing company that publishes news and data in many energy fields, filed comments opposing FERC's proposed move -- specifically the intent of ending public access to previously public documents and documents required to be made public under FOIA, and "the imposition of the burdensome paperwork requirement to use ... FOIA...."

The Reporters Committee for Freedom of the Press (RCFP) took an even stronger stand, citing President Bush's exhortation that U.S. citizens get "back to the business of America."

"In our thinking, business as usual in this democracy means government's continued operation with a fully functional Freedom of Information Act," RCFP leaders Lucy Dalglish and Rebecca Daugherty wrote.

What Is Critical Infrastructure Information?

A key issue will be the definition of CEII.

FERC forged an ad hoc definition when it pulled a large amount of information from public access via its Web site and other channels immediately after 9/11. In a policy statement issued October 11, 2001, FERC restricted free access to information, especially over-sized maps, "that detail the specifications of energy facilities licensed or certificated under" the Federal Power Act or Natural Gas Act. People wanting such information were required to file FOIA requests.

The reference to maps belied the much broader scope of records soon removed from public scrutiny -- "tens of thousands" of them, according to FERC. In one case cited by FERC, the information withheld was an environmental assessment related to a pipeline application. FERC soon found companies asking for their records to be taken out of the public domain. One company cited by FERC, the Williston Basin Interstate Pipeline Company, asked FERC to remove certain maps from its tariff sheets, waiving the FERC regulation requiring pipeline companies to file annually updated system maps as part of their tariffs.

FERC followed its initial policy statement with a January 16, 2002 "Notice of Inquiry," saying it was considering revising its rules to put CEII off the record and soliciting opinion from interested parties on the implications. While it adopted a posture of open-mindedness on the question, FERC signaled a clear intent: "The Commission believes that disclosure of CEII should be restricted to those who have a legitimate need for the information, and that recipients should be under an obligation to protect the information from disclosure."

In the meantime, until the legal and regulatory questions were resolved, FERC invited companies submitting filings to indicate which portions they believed merited nondisclosure as CEII -- and declared it would presumptively treat them as non-public.

Public debate over what types of information or documents FERC should conceal as CEII was made more difficult because FERC concealed information about the basis for its selection. Accompanying its January 16 notice was a "non-public appendix" containing "a list of previously public documents, which are likely candidates for consideration as CEII." Companies got access to this by signing nondisclosure agreements, but media outlets such as Public Utilities Fortnightly and Platts, complained that they had trouble getting it even if they did sign nondisclosure agreements.

FERC Proposes Rule; News Media Object

After reviewing comments on its notice, FERC on September 5 issued a Notice of Proposed Rulemaking -- not only reiterating its intent to black out a wide range of information about existing facilities, but going beyond that to propose blacking out information on proposed facilities which appear before FERC seeking licenses.

The September 5 notice did not soften FERC's earlier stand. It still did not define CEII precisely. It proposed dispensing with FOIA entirely for this category of information. Access would be limited to those demonstrating a "need" to know, but that term was not defined other than to say those seeking information had to demonstrate an "interest." To get the information, requesters would have to sign nondisclosure agreements.

While the deadline for public comments on the proposed rulemaking was originally set for October 15 (about 30 days from publication in the Federal Register, a comparatively short time), it was extended until November 14 at the request of the conservation group American Rivers.

FERC largely ignored media objections in its Sept. 5 proposed rule. The notice pointed out that comments opposing the information withdrawal, mostly from media and good-government groups, had been in the minority, while comments supporting it had constituted the majority. The majority of comments came from energy industry companies and associations.

The Society of Professional Journalists filed comments on Oct. 14 raising strong concerns over whether the proposal would allow reporters to do their jobs.

"The Society recognizes the importance of protecting certain information about the energy infrastructure of the country, particularly in the wake of the terrorist attacks of September 11," wrote Robert Leger, SPJ president. "However, it is also important that the public be well-informed about issues central to the operation of the government and the safety of communities, including energy infrastructure matters, and the Society would like to register its concern that these considerations are not given proper weight by the proposed Rule."

Ironically, it had been media commenters who ended up basing arguments for access on the need for security and efficient markets. While free-market advocates such as the conservative Washington Legal Foundation supported the blackout, trade press whose principal product was market intelligence opposed it. They argued that free markets work properly only when all players have transparent access to market information.

The Public Utilities Fortnightly, responding to the January notice, commented: "... the energy industry and the general public today are beginning to understand more than ever the importance of energy infrastructure and market data, and the role information transparency plays in the managing and monitoring of competitive energy markets, broadly, and in regional transmission organization and merchant plant development, specifically."

That was a barely veiled reference to events of the past few years -- the collapse of Enron, the crisis in California gas and electricity markets caused by trading manipulation in deregulated markets, and FERC's failure to oversee them. Many of the companies most deeply implicated in market manipulation were arguing at the same time for restriction of public access to market information.

Further Links

October 11, 2001, FERC policy statement (Docket No. PL02-1), "removing from easy public access previously public documents that detail the specifications of energy facilities licensed or certificated by the Commission." (66 FR 52917, October 18, 2001)

January 16, 2002, FERC Notice of Inquiry, (Docket Nos. RM02-4 and PL02-1), Federal Register: January 23, 2002 (Volume 67, Number 15) pp. 3129-3135.

September 5, 2002, FERC Notice of Proposed Rulemaking, "Critical Energy Infrastructure Information,” Federal Register: September 13, 2002 (Volume 67, Number 178), pp. 57994-58006, online.