From a Legal
Approach them like that
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
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
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.