New FERC quorum faces hefty backlog as market issues loom
The commission is expected to move quickly to clear hundreds of project applications, while nuclear subsidies could wait for a full bench
After months without enough commissioners to field a quorum, the Federal Energy Regulatory Commission could be fully-staffed in short order.
The new regulators will have little time to settle in. Hefty backlogs of energy projects and complicated market proceedings await their consideration.
Commissioners Neil Chatterjee and Robert Powelson were sworn in this month, and Chatterjee named interim chairman last week. He replaces former Chairman Cheryl LaFleur at the helm; she led the short-handed commission for the better part of this year.
The three current members have diverse experiences. LaFleur has been with the commission since 2010, Chatterjee was formerly an energy policy aide to Senate Majority Leader Mitch McConnell (R-KY) and Powerlson is a Pennsylvania utility commissioner.
McIntyre, Trump's pick to lead FERC, leads the energy practice at Cleveland-based law firm Jones Day. Richard Glick serves as the Democratic General Counsel for the Senate Committee on Energy and Natural Resources.
Politics in Washington has been anything but normal for the last year, but the nominees represent the kind of experience typical of past commissions. Even with billions of dollars at stake, most observers expect the new FERC to continue its current approach as independent economic regulator that most often delivers unanimous decisions.
"If you look at the people nominated, you would say these are all people who come from a pretty traditional FERC-type background," said former FERC Commissioner Tony Clark, now a senior advisor with law firm Wilkinson Barker Knauer (WBK). "They're pretty well within the norm and I suspect because of that ... they'll handle things in a non-partisan manner."
"They will move very quickly," said Raymond Gifford, a former Colorado utility regulator and WBK partner, said. "Unless there is a particularly thorny issue in a given application that requires more deliberation, or an adjudicatory mindset, I'm guessing they'll move things as quickly as possible."
Part of that is just in clearing the backlog of cases, but Gifford also said the commission likely feels a "political imperative" to get moving on infrastructure.
'Triaging the dockets'
John Moore, director of the Sustainable FERC Project at the Natural Resources Defense Council, said he expects the commission to issue a wave of its "bread and butter" orders before digging into more controversial issues.
FERC does not keep a count of the case backlog, a spokesperson said, but it has been the better part of a year since it has been able to tackle major orders. Most observers expect the new commissioners to begin issuing less-controversial orders, focused on infrastructure and electric rates. Broader and more challenging topics, like how state and regional policies impact wholesale markets, will likely be put on hold until all five seats are filled.
"It's going to be a challenge the commission hasn't faced before," Clark said. The backlog is likely "several hundred deep," he said, and will require sorting and prioritizing.
How will the commission decide what to tackle first?
"I would guess it's a combination of figuring out what is statutorily required, as well as trying to identify certain dockets that are particularly time sensitive," Clark said. There may be enforcement issues as well, where the new quorum will move to get ahead of a statute of limitations.
McIntyre and Glick are scheduled for a committee confirmation hearing on Sept. 7, but there is no indication yet of when they might be confirmed by the full Senate..
"Some of the bigger market issues, large rulemakings and bigger litigation, that probably waits until you gave all five commissioners," Clark said.
Former Commissioner Colette Honorable left the commission this summer, at the expiration of her term. She was the last commissioner to depart, leaving LaFleur to run the shop solo, giving her insight into what preparations have been made.
LaFleur, as acting chair, led an effort to prioritize cases, Honorable said.
"We referred to it as 'triaging the dockets,'" she said. "They were batched in priority order, so that upon restoration of a quorum, the commission could quickly turn to the most needed areas first."
That said, Honorable cautioned, "everyone wants their order yesterday, but it's important for us to recognize we have to give them time."
Will FERC remain apolitical?
The "political imperative" Gifford mentioned stems from President Trump's commitment to energy production and the development of infrastructure. While that could speed decisions on things like LNG exports and pipeline applications, the general sense is that the political polarization of Washington is not about to infect FERC.
Trump's pick to lead the commission, Chatterjee, is a Republican while LaFleur was a Democrat. But according to Honorable, there's not much to be read into the switch.
"It isn't unusual to have a new administration name their own person as chair," Honorable said. "While we all come to FERC through a political process," she pointed out that much of FERC's work is driven by stakeholders. "I am confident this commission will continue to lead in an independent way."
Clark echoed that idea, noting that if you look at Chatterjee and Powelson's confirmation comments, there is little to indicate which way they would decide on larger issues.
"Market issues are sufficiently complex and don't lend themselves to Republican and Democrat divides," the former commissioner said.
Tackling market issues
While the commission may start putting out infrastructure and rate orders immediately, broader market issues are looming. FERC held a technical conference on generation subsidies in May, looking at how state energy policies could impact wholesale market rates.
"Everyone knows the've got a big issue there and it's something that is going to have to be addressed, and the complaints are queued up," said Clark. "It's a big issue and it's on everyone's mind, but in terms of what they'll do, that is yet to be determined."
New York and Illinois have approved initiatives to provide support payments to nuclear units based on carbon credits. But in both federal district courts and before FERC, complaints are pending that the zero emissions credits (ZECs) skew wholesale prices.
As more states incentivize renewable infrastructure and the nation's nuclear fleet struggles next to cheap natural gas, how to develop market policies that reflect public policy at the state level will be a key question. The most likely way forward, say observers, is for the commission to allow individual regional transmission organizations to take the lead.
Already, PJM and ISO-New England have floated two-part capacity auctions to handle subsidized resources, and the New York ISO published a report last week on integrating carbon prices into its wholesale market dispatch.
Ari Peskoe points out that FERC has two ZEC-related complaints in front of it right now and "will need to decide whether to deny the complaint and order the ISO to change its rules, or decide the status quos is ok."
"I think that's the big question people are looking at, whether FERC is going to do anything broader," he said. "My guess is that it's going to be a market specific approach, at least initially. ... I think FERC is probably, in the short term, is going to wait to see what the RTOs come up with before taking some broader action."
NRDC's Moore agreed, saying, "it would be better if FERC reacted to regional proposals rather than taking some kind of broad inter-regional approach ... every region is different and FERC understands that and wants to be cautious."
Gifford calls it "the market chaos issue," said said FERC will almost certainly need to address it on a region-by-region basis.
"Each one of these RTOs is a slightly different creature with slightly different characteristics, and underlying phenomenon," said Gifford. "At a general level they're all regional energy trading markets ... but at a specific level things are at least slightly different, in ways that mean you have to address the policies and realities in each one of those markets."
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