Without a quorum, what happens at FERC?
A new “delegation” order also seems to be in the works at the agency. In 1993, FERC feared losing a quorum, prompting the sitting commissioners to issue an ordergranting additional powers to the senior staff the authority to suspend certain electric and gas rate issues. The commission never fell below three members then, but that order may be a model for how FERC proceeds now. “Certainly, we’ve reviewed that order, and we’re reviewing other matters here, and we recognize the press of our docket … and the needs of many stakeholders to hear from us,” FERC Commissioner Colette Honorable told ME. “The time frame is obviously beyond our control so we are attempting to put structures in place to allow us to continue and delegate authority to staff, as necessary, to get us through this period.” Honorable said she wasn’t sure whether FERC could hold its monthly meeting with two members. Still, it’s unclear what happens if certificates for contested interstate natural gas pipelines and electric rate filings are approved with just two commissioners or newly empowered staff so…
There’s a lot of Beltway chatter about how much FERC staff can do. Staff handles a lot of the agency business already but former FERC Chairman Jim Hoecker told ME it was unclear how much more they could do when the commission leadership itself didn’t have the authority to act without a quorum. “Are the actions taken under those delegations legally defensible?” Hoecker said. “I think there’s a big question there. I don’t know what the answer is but I think it’s not necessarily a slam dunk that the staff can go ahead.”
And the pipeline industry isn’t eager to test that — especially as FERC has faced intensifying protests in recent months from anti-fracking activists. “People can put out these theories about emergency authorities and things,” said Don Santa, CEO of the Interstate Natural Gas Association of America and a former FERC commissioner, but he went on to warn an industry crowd this week “how much the commission is under scrutiny from [environmental] groups and the litigiousness of those groups.”
Nuclear subsidies drama: FERC has two pending complaints from the Electric Power Supply Association for regulators into step into spring auctions in New Yorkand PJM because of state decisions to subsidize struggling nuclear plants. If FERC remains without a quorum into the spring, EPSA members could claim they’ve been harmed by FERC’s inaction. But the comment period for both cases only ended last month.
Trump has not announced a FERC nominee, and it’s an open question how high of a priority that is for the new president. So it could be several weeks — or months — until Bay’s empty seat is filled.