Earlier today, Acting Chairman Cheryl LaFleur participated in a podcast to provide some initial guidance about how the Federal Energy Regulatory Commission (“FERC” or the “Commission”) will operate in the final days of a quorum and during the upcoming non-quorum period, in light of Commissioner Norman Bay’s pending departure in early February.^[1] 

Among other things, Chairman LaFleur says FERC is working on a potential expansion of Staff’s delegated authority during the period of non-quorum, drawing from the experiences of other agencies during similar periods of non-quorum.  We expect there could be limits to such expansion, so it will not likely cover more significant contested proceedings.  She does note that FERC Staff will be able to continue to review and consider pending filings.  Things will move forward while there are two Commissioners, but the key issue will be how quickly a third Commissioner can be nominated, confirmed by the Senate, and assume his/her duties.  If the nomination and confirmation process takes a while, another important issue will be how soon that individual can get up to speed and actually vote on some of the more significant pending cases that will have built up during the period of non-quorum. 

Acting Chairman LaFleur noted the following points:

• The Commission has already confirmed that all of the existing Staff delegations that are in place, including with respect to such actions as hydro inspections, LNG safety reviews, audits and all the other things that FERC Staff does on a regular basis, will continue in the period of non-quorum.

  • LaFleur highlighted that many more orders are issued each year by Staff, than by the Commission.

• The Commission is working on a potential expansion of Staff’s delegated authority during the period of non-quorum.  Acting Chairman LaFleur said they are basing that on past Commission orders on the subject and on the experience of other agencies.  She suggested staying tuned for more information on that point.

• In the period of non-quorum, the following functions will remain in place: continued review and consideration of pending filings and those that come before the Commission; coordinating Staff delegated actions; proceeding with environmental review of projects; holding meetings and technical conferences; preparing orders for future voting once a new Commissioner arrives and conducting other business.

• With respect to her priorities as Acting Chairman, LaFleur stated her long-standing priorities of reliability and grid security, transmission, and ensuring a clean and diverse energy supply will remain unchanged.

• LaFleur highlighted an issue that she thinks will be prominent moving forward is trying to adapt competitive markets to some of the state initiatives that FERC is seeing.  She highlighted the importance of this point given the recent developments in the nation’s changing energy supply, particularly with respect to growth in renewables and gas. 

• LaFleur acknowledged that FERC’s pipeline work is very high profile right now.

• With respect to Enforcement, LaFleur noted that both reliability enforcement and keeping markets fair are very important parts of the Commission’s work.

• To the extent that the regulatory freeze memo applies to FERC, the triggering event occurred when LaFleur was designated at Acting Chairman.  Accordingly, the Commission has sent items to the Federal Register that have been approved by the Commission.  LaFleur noted that previously set comment deadlines will not change.

• Finally, LaFleur confirmed that the federal hiring freeze applies to FERC.  She noted that there will be losses due to retirement and attrition; however, there may be exceptions for national security-related hires.  Acting Chairman LaFleur noted she was hopeful that, at some point, the Commission would be able to hire again.

As we are moving forward into these unchartered waters, we will continue to monitor developments, focusing on the processes the Commission develops to ensure continued operations during the upcoming period of non-quorum and the nomination and confirmation process for a new Commissioner.

_{[1] Commissioner Noman Bay submitted his resignation letter on January 26, 2017.  His last day at the Commission will be Friday, February 3, 2017.}