The Federal Energy Regulatory Commission (FERC) will be left without a quorum when Commissioner Norman Bay’s resignation becomes official on February 3, 2017 and FERC’s ability to issue orders will be limited until the Administration fills a third seat.
There has been much discussion of the absence of a quorum and its impact on FERC’s business, particularly on matters that could be affected by the operation of law under the Natural Gas Act and Federal Power Act. This could include new rate, rate schedule, and tariff filings, which become effective after 30 days unless suspended by FERC order, and requests for rehearing, which would be denied by inaction after 30 days. However, in 1993, faced with a similar quorum crisis, FERC issued an Order Delegating Authority to the Secretary and Certain Office Directors, 63 FERC ¶ 61,073 (1993), that provided for the following delegations and confirmed that all existing delegations remain in place as well.
1. To the Secretary, or, in her absence, her designee, authority to:
- Grant requests for rehearing filed under rules 713 and 1902, solely for purposes of further consideration
- Issue other notices or orders as appropriate in order to extend the time within which the Commission would otherwise be required to act
2. To the Director, Office of Pipeline and Producer Regulation, or, in his absence, his designee, authority to:
- Suspend tariff filings for an appropriate length of time under the Natural Gas Act
- Set suspended tariff filings for hearing under the Natural Gas Act
- Take whatever further action is necessary to process those tariff filings
3. To the Director, Office of Electric Power Regulation, or, in his absence, his designee, authority to:
- Suspend rate schedules for an appropriate length of time under the Federal Power Act
- Set suspended rate schedules for hearing under the Federal Power Act
- Take whatever further action is necessary to process those rate schedules
4. To the General Counsel, or in his or her absence, his or her designee, authority to act upon requests for exempt wholesale generator status under section 32 of the Public Utility Holding Company Act.
We expect FERC to issue a similar delegation order this week before Commissioner Bay departs. In a podcast issued yesterday, Acting Chairman LaFleur stated that staff delegated authority will be increased in anticipation of the lack of quorum. As with the 1993 order, it does not appear that a delegation order could adequately address pending interstate pipeline certificates required to commence construction or other major orders.
For further information, please contact Energy Practice Group attorneys Randy Rich, Ruta Skučas, or Andrew Kaplan. Randy can be reached at 202.530.6424 or email@example.com; Ruta can be reached at 202.530.6428 or firstname.lastname@example.org; Andrew can be reached at 617.488.8104 or email@example.com.