Alan I. Robbins, Esq., Jennings, Strouss & Salmon, PLC

Editor’s Note: “From a Legal Perspective” is one of the newest column additions to District Energy magazine. It appears in each edition to address legal issues of current importance to the district energy industry. It is intended for educational purposes only and does not constitute legal advice. Robbins is a colleague of IDEA’s legal counsel, Joel Greene.

Know your audience. That applies to your favorite regulatory agency, too. To know your audience, you need to try to understand what is driving them. What are their policy objectives? How do those policy objectives apply to your company or your particular regulatory proceeding? How can you make their jobs easier and enable them to declare success, while at the same time achieving an acceptable outcome for you? What are the specific roles, responsibilities and biases of the individuals you are dealing with?

You undoubtedly address these and other similar questions when developing a new marketing plan, a new advertising campaign or new promotional materials. You should promote your regulatory objectives in a similar manner.

Know what you want, and why. Identify your objective clearly. Do so before you start or become involved in the regulatory process. Understand whether your primary interest is in a dollar outcome or, instead, in the setting of policy or precedent. If your interest is a matter of dollars, then you presumably have flexibility in how you achieve or package that result. But, if your objective is grounded in policy or principle, then you must decide the extent to which you need to remain true to that philosophy.

Know how what you want fits or
conflicts with known regulatory
policy or regulatory objectives.
Understand the mindset of your regula-
tors. Their policies and policy objectives
will color the glasses through which they
examine your proposal. When possible,
present your position as one that is con-
sistent with their policies or that furthers
their policy objectives. Even when what
you want is at odds with their policy, it
is often more effective to say “I really
want to get on board with your policy,
but I can’t unless you change [X] because
otherwise I will suffer this terrible con-
sequence, which surely is not what your
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policy is intended to cause,” than it is to
say “I object to your policy because it’s
bad policy.”
Remember, even if you don’t like their
policy or it doesn’t work for your company,
the regulators likely helped formulate that
policy. They therefore are not likely to think
and will not admit that it is bad policy.
Telling them that you think it is bad policy
will only cause them to become defensive,
not receptive. Just as you would not tell par-
ents that you think their child is ugly, but
might ask if they ever considered having the
child sport a different hair style – so too
should you suggest some tweaking of policy
rather than directly deriding the policy.

Explaining pertinent differences between district energy and other regulated utilities to which the policy applies will likely provide you the springboard for this approach. Explain why you are different and why that means some change to the policy is necessary when applied to you. Most regulators recognize that one size does not always fit all, but sometimes you have to first make clear that not everyone is the same size.

Establish and maintain credibility. Credibility is essential. Do not come into a regulatory proceeding ill-prepared. Know your objective, know your issues and know the basis for each. Know where your position is supported by existing practice or policy and where it departs from it. Be able to explain why. Be able to explain what the significance is to both you and to the public. Have a clear, understandable and not overly detailed explanation of your position, but also be ready to back it up with as much detail and support as is available.

Know where your position is
supported by existing practice
or policy and where it departs
from it. Be able to explain why.

The regulators’ job is to balance the interests of the regulated company and the interests of the consumers or the public at large. Help them do that. Address not only your needs and interests, but the consumers’ and public’s interests as well.