Today is Commissioner Norman Bay’s last day on the job at the Federal Energy Regulatory Commission (FERC), which means that on Monday, FERC will no longer have the quorum of 3 commissioners that is necessary for it to do much of its business. (Two other vacancies have gone unfilled for months.) Earlier today, Acting Chairman Cheryl LaFleur announced that the authority normally delegated to FERC Staff has been modified so that some business may continue until a quorum is re-established. The order on delegated authority becomes effective tomorrow, February 4, 2017, and will remain in place until shortly after new commissioners arrive at FERC (which requires Senate confirmation). Staff’s temporary delegated authority is as follows:
- Rate and other filings: The Director of the Office of Energy Market Regulation (OEMR) can accept and suspend rate filings, and make them effective subject to refund and further order of the Commission, or accept and suspend them, make them effective subject to refund, and set them for hearing and settlement judge procedures. For initial rates or rate decreases submitted under section 205 of the FPA, for which suspension and refund protection are unavailable, FERC staff is granted authority under section 206 to institute proceedings in order to protect the interests of customers.
- Extensions of time: FERC staff can extend the time for action on matters where it is permitted by statute.
- Waiver requests: The Director of OEMR can take appropriate action on uncontested filings under the NGA, FPA and ICA, seeking waivers of the terms and conditions of tariffs, rate schedules and service agreements, including waivers related to capacity release and capacity market rules.
- Uncontested settlements: The Director of OEMR has authority to accept settlements not contested by any party or participant, including Commission trial staff.
But despite these revisions to Staff’s delegated authority, much of the business before FERC will await a quorum. And with the apparent priorities in the White House and in Congress these days, we may be waiting a while for FERC to resume business as usual.