Statewide Remedies for Public Underrepresentation in Regulatory Proceedings

Abstract

With some recent exceptions, regulatory agencies have tended to adopt policies favorable to regulated industries and unfavorable to underrepresented interests.' These underrepresented interests are often characterized as interests, but this is an oversimplification. In truth, some consumers are well-represented in regulatory proceedings. Large business consumers, for instance, are wellrepresented before the Federal Communications Commission, the Federal Energy Regulatory Commission, and state public utility commissions. The problem, then, is not that consumers as a whole are poorly represented but that certain groups are poorly represented. Among these underrepresented groups are residential consumers and the poor. By law, regulatory officials are required to represent the entire public, including consumers, the poor, and other interests. Yet, regulators depend on outside intervenors for information that substantiates alternative points of view. If the only information regulators receive is furnished by regulated industries, regulatory decisions are likely to reflect the regulated industries' values. As Cramton has noted, Our regulators and government servants are generally persons of ability who are trying to do the best job they can under difficult circumstances. But their perspectives are limited by the information that is available.' Thus, regulators cannot be expected to make sound decisions without input from the full range of interests affected by their decisions-a principle increasingly accepted by the courts.3 There are two principal external remedies to the problem of underrepresented interests in regulatory agency proceedings. The first remedy involves direct participation in agency proceedings by citizens' groups or individual citizens. This approach emphasizes the need for citizens to speak for themselves rather than through intermediaries. The second remedy involves representation of underrepresented interests by proxies-government officials outside the agency who are paid to represent underrepresented interests, such as consumer interests. This approach empha-