Certification of Regulatory Professionals:
Why Not? (Part II)

Last month's essay argued for certification—or at least for sustained conversation about certification. Thoughtful comments, for and against, are posted here. This month, I offer thoughts and questions about how certification might work. I focus on possible certifying entities, processes and curricula for supporting courses.

Possible Certifying Entities

Certifying entities fall into three categories: academic, government and private.

Academic institutions certify acquisition of knowledge by granting degrees. The requirements vary widely by institution and subject matter.

Government bodies certify readiness to perform specific services that government has determined require certification, such as law, pharmacy, medicine, realty sales and engineering; even cosmetology, massage therapy and tattooing. In these situations, government rules prohibit noncertified persons from performing these services—or at least claiming to be certified when they are not. In the legal profession, certification beyond the general bar exam is rare; indeed bar rules typically prohibit a lawyer from claiming to "specialize" in anything (patent law is a prominent exception).

But—news from North Carolina, from a renewables lawyer there: "A group of attorneys in North Carolina is petitioning the North Carolina State Bar to create a new area of legal specialization for utilities law, which would include practice and procedure before the North Carolina Utilities Commission, representation of clients subject to the provisions of state and federal utilities law, and representation of investors in the field." The requirements would likely include "five years’ experience in utilities law, a minimum of 400-500 hours of practice in the area per year, CLE requirements, peer review, and passing an exam."

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Testimony, Papers, and Presentations

Effective regulatory litigators ask “How can I help the agency make the best decision?” This article presents a set of principles that, if applied by practitioners and decision-makers, will help lawyers advocate effectively and help agencies advance their statutory missions. I have organized these principles according to the nine typical stages of litigation.
“Regulatory capture” is a ringing phrase, too casually used. But because it is a hyperbolic phrase, it is too readily dismissed. With a careful definition, regulatory capture can be anticipated, detected, and resisted. Regulatory capture does not include illicit acts—financial bribery, threats to deny reappointment, promises of a post-regulatory career. These things all have occurred, but they are forms of corruption, not capture. Nor is regulatory capture a state of being controlled, where regulators are robots executing commands issued by interest groups.
In this proceeding before the Mississippi Public Service Commission, Entergy proposes to sell its transmission facilities to ITC at a gain. The transaction is a “spin-merge” transaction in which Entergy shareholders will end up owning 51% of ITC, along with their shares of Entergy.

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Regulating Public Utility Performance

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Regulating Public Utility Performance:  The Law of Market Structure, Pricing and Jurisdiction

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Preside or Lead?
The Attributes and Actions of Effective Regulators

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Hempling Appearances

UDC Law School Panel
Is the Exelon Takeover of Pepco in the Public Interest?


Nigeria Electricity Regulatory Commission
3rd Judges’ Seminar


Telecom Forum
Asamblea Plenaria REGULATEL


NARUC Annual Meeting
Panel on State–Federal Relations


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I highly recommend Scott Hempling. I have known him since 2003, since he was a consultant for the Hawaii Public Utilities Commission on various important and cutting-edge policy regulatory matters in Hawaii, through his time as the Executive Director at the National Regulatory Research Institute. His expertise, knowledge, and experience in all regulatory and energy matters is unmatched, and he would be a highly valuable resource and asset in any such endeavor.
— Carlito P. Caliboso, former Chairman, Hawaii Public Utilities Commission