UPDATED 02.03.2017 FERC-issued Order Delegating Further Authority to Staff in Absence of Quorum is available here.
Tomorrow, February 3, 2017, will be Norman Bay’s last day on the Federal Energy Regulatory Commission. Commissioner Bay has served since August 4, 2014, and was Chairman from April 15, 2015, to January 23, 2017. In his letter resigning his appointment, he details accomplishments within the agency, and with regard to markets, reliability, and infrastructure, closing by noting that FERC’s “work touches the life of every single American, 24/7, 365 days out of the year.”
Commissioner Bay’s departure leaves FERC with only two members: Acting Chairman Cheryl LaFleur and Commissioner Colette Honorable. (Previous departures from the five-member Commission included Commissioner Tony Clark on September 30, 2016, and Commissioner Philip Moeller on October 30, 2015.) Without a quorum of three commissioners, there is some uncertainty about what will happen to filings pending or that may be filed before at least one vacancy can be filled by the President with the advice and consent of the Senate.
In a recent interview with FERC’s Open Access podcast (transcript), Acting Chairman LaFleur discussed the lack of quorum, echoing her earlier statement on this issue. She noted that certain staff activities will continue during a period of no quorum and that “five times as many orders are issued in a year by staff than by the commissioners.” FERC has a delegation of authority from 1993 that gives staff certain authorities, including suspending rate schedules under the Federal Power Act and granting requests for rehearing for further consideration (to avoid such requests being denied without a consideration of the merits).
Acting Chairman LaFleur also mentioned the White House’s announced regulatory freeze, noting that previously-set comment deadlines on FERC issuances will not change. FERC also issued a Statement on Regulatory Freeze Memorandum on January 27, 2017.) Although currently “well-staffed,” she said that the hiring freeze does apply to FERC but that some positions may be filled under the exception for work of significance to national security. And Acting Chairman LaFleur has been in this role before, serving as Acting Chairman from November 25, 2013 to July 30, 2014 (and Chairman July 30, 2014 to April 14, 2015).
