Facing lack of a quorum, FERC delegates some authority to staff
- The Federal Energy Regulatory Commission last week delegated some additional authorities to the Office of Energy Market Regulation (OEMR), in an effort to keep agency business moving ahead even as regulators lack sufficient numbers to gather a quorum.
- The order charges the director of OEMR, or a designee, with the authority to take "appropriate action" on
some types of uncontested filings, accept uncontested settlements, and accept and suspend rate filings.
- Former Commissioner Norman Bay stepped down from the commission on Friday, leaving FERC with just two of five seats filled. Three commissioners are required for quorum.
FERC's last couple of weeks have been a flurry of activity, but that's all changed now. The agency issued major pipeline approvals in a last minute flurry to push through some projects before Bay's departure, but any big projects nearing a green light will have to wait until the commission can staff up.
With only two sitting commissioners, the commission's work will slow to more routine matters. Investigations can continue, along with hydro inspections, liquefied natural gas safety inspections, audits and environmental reviews. But until a third commissioner is seated, FERC will not be able to issue significant orders or make determinations on pending infrastructure projects.
The work delegated to staff will allow rate applications to be accepted and suspended, which keeps them from being automatically approved absent commission action.
FERC was last without a quorum in 1992, and so there was a model in place for delegating some authority. But acting Chairman Cheryl LaFleur said recently that in addition to the usual delegated authority "we’re already working on a potential expansion of staff’s delegated authority during the period of non-quorum."
Tony Clark, a former FERC commissioner and now a senior advisor at Wilkinson Barker Knauer LLP, cautions that the agency could get tripped up if it attempts to delegate too much authority. "At the very least, if there's a party that is adverse they're probably going to challenge," he said.
It could take months for the Trump administration to appoint a nominee and have them go through the vetting and confirmation process.
"I'm afraid stuff is going to grind to a halt," Kenneth Irvin, co-leader of Sidley Austin LLP's global energy practice told Utility Dive.
Follow Robert Walton on Twitter