Agency Adjudication

Here are some responses from readers of the January 2015 essay, "Agency Adjudication:  Efforts at Excellence":


From a former executive of the Ontario Energy Board:

One example that comes to mind with respect to Agency as Policy Leader and Setting the Agenda is the Ontario Energy Board.  Several years ago the OEB initiated a policy process to make changes to the regulatory construct for electricity distribution companies.  The initiative is known as the Renewed Regulatory Framework for Electricity or RRFE.  The framework established approaches for several relationships between regulated LDCs and the OEB.  The areas of focus were:

  • Rate setting
  • Capital planning
  • Regional Planning
  • Performance benchmarking and reporting

It is a quite comprehensive change in the relationship.  The initial policy development phase is complete and they are in the initial implementation stage.  I think this would be a great case study for your class.

The documentation is posted to the OEB's website


From an attorney for a major pipeline company:

Many of these issues hit close to home as we continue to be faced with the challenges of permitting large infrastructure projects in both the US and Canada.   Activism through social media and the internet generally has created a host of significant issues related to the scope of permissible intervention and the nature of the hearing process and has also, in my view, increased the level of politicization in regulatory decisionmaking. 

[Hempling response]  Re politicization:  There is a place for emotion and political values in these siting battles.  But regulatory agencies are not that place.  Arguments about political values belong in the legislature.  An agency is not a supermarket, just another government office where people go shopping for things they want.  Agencies have limited powers.  It is important for citizen activists to understand the limited role of agencies so that they go to the right place to get the outcomes they want.  Agency regulation is a component of democracy, yes, but it is not a forum for every form of democracy.  I say this not out of disrespect for political values but out of respect for the limited legal powers of independent regulatory agencies, whose limits we must respect if we want the agencies to retain their powers.


From an environmental activist:

Hempling’s perspective has a narrow focus on agency work product, measuring value in that context, particularly how not to complicate the process. Since lay citizens do not contribute substantial evidence to sustain agency orders (in his words) he questions the value of public participation (no doubt with some ivory tower rhetorical irony.) Obviously, the value of public comment (seen from an outside perspective) is that effects of a utility on a community are not always available in formal, scientific evidence. An example is Puna's experience with geothermal development. Usually it is empirical data, with an emotional overtone, valid enough to warrant consideration, but outside the ordinary agency evidence stream and a complication in the record.  

[Hempling response]  But -- What is a regulatory agency (as opposed to a legislature) supposed to do with emotional or political comments that are not considered by administrative law to be, technically, "substantial evidence"?  Such comments have relevance to the political process but it is not possible for a regulatory agency to use them lawfully.  What is important for the public to understand is that agencies are not legislatures; they are free to make policies to please people.  It's not a question of not caring about people's concerns; it is a question of not abusing government power.  For the very same reason, agencies should not shape regulatory decisions because they feel sorry for utility shareholders who might lose money when the regulator holds a utility accountable for poor performance.