Four Thousand Parties?

A Canadian regulatory proceeding on a major pipeline has 4000 intervenors.  (No typo; there are three zeros in that figure.  And this is the technical hearing, not the non-technical hearing.)

U.S. commissioners spend time "on the road," hearing from the public in official, but non-evidentiary, hearings.  It's worth asking two questions:  What is the specific value of non-evidentiary hearings? And is there tension between that specific value and current legal reality?

In our legal system, the commission's decision on the merits must be based on evidence in the record, and only on that evidence.  Public, non-evidentiary hearings by definition produce no record evidence—meaning, the commission is barred from using anything it heard to make its decision.  So why have these non-technical hearings?

I'm with the supermajority of commissioners:  It's critical to remove oneself from the abstractions of revenue requirements, merger standards, and once-in-ten-year outages, to learn from homeowners and business owners what it feels like to pay a bill and receive service.  Understanding that regulatory decisions affect real people helps guide judgment.  Given the breadth of statutory phrases like "just and reasonable" and "public convenience and necessity," much of regulation is judgment.

But that usefulness does not remove the tension.  If the commissioner uses what she learned at the non-evidentiary hearing as input to her decision, she violates a principle preserved in our Constitution:  due process.  It is fundamentally unfair to parties to base decisions on statements outside the evidentiary record.  And then there is the principle of expertise:  Courts defer to regulatory agencies because of their expertise.  There is no expertise involved in having one's emotions touched by a bill-burdened public speaker.  On the other hand, how would it fly if, upon entering a non-technical public hearing, each attendee were handed a flyer saying, "Welcome.  Although the Commissioners present are pleased to receive your comments, absolutely nothing you say tonight can affect their decision—unless you want to be cross-examined by an opposing lawyer?" 

Agreed—these flyers would be a fine way to anger everyone.  But is it better not to tell them?  To create an impression that what they say matters?   What they say can't matter—unless the decisionmaker puts it on the record and subjects it to cross-examination.

There is no easy answer.  But the prospect of 4000 participants in a technical hearing raised these questions in my mind.  As always, comments are welcome.

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