On April 23, whistleblower nonprofit group the National Whistleblower Center (NWC) submitted comments to the Federal Energy Regulatory Commission (FERC) about the creation of an Office of Public Participation (OPP). NWC suggested the creation of an Office of the Whistleblower within the OPP to encourage and protect potential whistleblowers.
FERC is currently accepting public comments about the proposed OPP: citizens can submit comments by May 7, 2021, by 5:00pm EDT. FERC Commissioner Allison Clements spoke about the OPP and the importance of public comments on April 26. The OPP “is an office that Congress envisioned back in 1978 as part of revisions to the Federal Power Act that would assist members of the public in accessing some of the Commission’s technical and, oftentimes, less-than-transparent proceedings,” Clements said. She thinks that the public comment period is “an opportunity to have more voices heard” in the Commission’s proceedings. There will be six listening sessions, “which are on-the-record opportunities for members of the public to speak for a few minutes each, without having to register on FERC eLibrary and submit written comments in the form that FERC usually accepts them.”
NWC’s comments on the proposed OPP center around the protection of potential whistleblowers. “Given the long history of retaliation against those who expose crime and corruption by powerful interests, individuals with evidence of fraud, market manipulation and other legal violations by FERC-regulated entities have strong incentives to remain silent,” NWC’s letter states. “FERC must take steps to encourage whistleblowing.”
NWC explains FERC’s current two-pronged approach to whistleblowers and notes that “strengthened whistleblower protections for the entire federal workforce is a critical need.” The group suggests establishing an Office of the Whistleblower in the OPP “with a mandate of ensuring that credible disclosures are investigated and whistleblowers are guided through the disclosure process and notified about the status of their disclosures.” NWC states that the OPP’s Office of the Whistleblower should also be responsible for educating FERC staff members on whistleblower protection and informing potential whistleblowers “about FERC’s commitment to investigating credible disclosures and ensuring against retaliation.”
NWC also states that FERC “should request that Congress authorize it to offer financial rewards to whistleblowers as a percentage of the monetary sanctions the whistleblowers help to secure.” The letter explains that whistleblower rewards, along with “anonymous and confidential disclosure channels,” are essential for encouraging individuals to blow the whistle. The NWC points to existing whistleblower programs like the Dodd-Frank Act and the U.S. Securities and Exchange Commission (SEC) Office of the Whistleblower as successful models. However, NWC states that “[e]ven in the absence of statutory authority to issue rewards, FERC can help encourage potential whistleblowers to step forward by informing them that it will consider referring relevant disclosures to the SEC, CFTC and other agencies with reward authority.”
In NWC’s press release about their comments to FERC, NWC Senior Director of Environmental Innovation John Kostyack said: “As FERC sets up the OPP, it must do so leveraging the full power of whistleblowers and whistleblower law. Companies that are ill-prepared for the energy transition have enormous incentives to commit fraud – but by working with whistleblowers, FERC can expand its law enforcement capabilities, deter fraud and hold the bad actors accountable.”
NWC’s Interim Executive Director Mary Jane Wilmoth said: “NWC supports FERC’s efforts to encourage greater public participation through the OPP. FERC’s current approach to whistleblowing recognizes that individuals with evidence of crime and corruption need an anonymous disclosure channel in order to step forward; however, more can be done to protect whistleblowers and encourage their reporting.”