David Bradley February 23, 2017
The continuing lack of a quorum at FERC, an agency key to any administration in achieving its energy platform, has more than a dozen Democratic members of Congress calling on President Trump to begin the process of filling vacancies.
“For the sake of good governance, transparency, and proper oversight, we request that you nominate a qualified individual as soon as possible to serve as a commissioner at FERC [Federal Energy Regulatory Commission],” the lawmakers wrote to Trump in a letter dated Feb. 22. They also requested Trump fill the remaining vacant slots “to ensure the Commission is fully functioning and each filing is duly considered.”
The letter was signed by 14 Democratic House members representing districts in Massachusetts, Illinois, New York, Maryland, Colorado and Vermont.
The logjam at FERC began days after Trump’s inauguration, when he named Cheryl LaFleur acting chairman and Norman Bay, who had been at the helm since April 2015 — when he replaced LaFleur in that roll — submitted his resignation effective Feb. 3.
Without a quorum, FERC can conduct routine business, but it cannot vote on important projects or rules. Trump has yet to nominate any new commissioners to fill the three vacant seats on the ostensibly five-member panel. Currently, the only commissioners are LaFleur and Colette Honorable, both Democrats. FERC can have no more than three commissioners from any one party.Industry groups have been lobbying the Trump administrationto act quickly on FERC nominations, which would have to go through the sometimes lengthy Senate confirmation process before taking their seats at the agency.
“A fully functioning and staffed Commission is critical to our economy, national security, infrastructure and energy needs as a country,” according to the House members. “For the last several years, our offices repeatedly have raised concerns, including with the previous administration, about vacancies on the Commission. The Commission staff can address many of the actions filed, but federal statutes require the Commission to issue orders only by majority vote of at least three commissioners representing a quorum.
“In FERC’s nearly forty year history, it has never faced a situation where it is unable to act due to lack of quorum. Though routine matters may be addressed at staff level, effectively, the most important actions will require at least three commissioners. Our energy sector will remain at a standstill without the Commission’s ability to act.”
On the eve of Bay’s departure, FERC issued an order delegating certain authority to its staff while it lacks a quorum. The order authorized FERC staff to act on rate filings; grant extensions of time and waiver requests; and approve uncontested settlements. But, “given the clarity of the FERC governing statutes and the uncharted territory we are currently exploring, we have significant concerns with the legal basis on which this order stands,” the lawmakers said. “A nomination and subsequent confirmation by the Senate would avoid protracted legal proceedings”
Among those rumored to be potential FERC nominees is Neil Chatterjee, a senior policy advisor to Senate Majority Leader Mitch McConnell (R-KY),Travis Kavulla, a member of the Montana Public Service commission and former president of the National Association of Regulatory Utility Commissioners, Janet Sena, director of public policy and external affairs for the North American Electric Reliability Corp., and Former Railroad Commission of Texas (RRC) Chairman Barry Smitherman.
In addition to the three empty seats waiting to be filled, Honorable will need to have her term extended or be replaced this year, since her term expires June 30. LaFleur’s term is due to expire June 30, 2019.
FERC canceled its Feb. 16 agenda meeting and suspended subsequent monthly meetings as the agency awaits appointment of enough commissioners to achieve a quorum.