FERC: Back in Business

The Federal Energy Regulatory Commission is back in business, with three commissioners constituting a quorum. The agency has a scheduled monthly public meeting for Sept. 20. By then it may have a full slate of five commissioners.

But getting FERC rolling again involved some peculiar political musical chairs on the part of the White House. After Republicans Neil Chatterjee was sworn in as a commissioner, soon followed by Robert Powelson, the White House said Chatterjee, a former energy aide to Senate Majority Leader Mitch McConnell, would be the new FERC chairman, replacing Cheryl LaFleur, a Democrat who was acting chair as the only member of the handicapped agency.

 

Neil Chatterjee

Neil Chatterjee

Makes sense as the president can designate the chairman from his party. Not that it makes much difference as FERC is seldom a partisan institution.

But here’s where the confusion comes in. Trump (certainly not personally as it’s doubtful he has ever heard of FERC) after naming Chatterjee and Powelson made two additional nominations to FERC: Republican Kevin McIntyre and Democrat Richard Glick, filling out the commission with three Republicans and two Democrats (LaFleur and Glick). At the time, the White House said it would designate McIntyre as FERC chairman.

But the announcement that Chatterjee would be chairman, replacing acting chair LaFleur, didn’t say he would be “acting.” Huh? Confusion followed.

Turns out it was sloppy staff work from the White House (no surprise there). Chatterjee will be acting chairman until McIntyre and Glick are confirmed by the Senate, most likely when the chamber returns from summer vacation in September. Senate Energy Committee hearings are scheduled for Sept. 7, with floor action likely soon after that. Then McIntyre will become chairman.  It’s possible that Chatterjee will never chair a FERC monthly public meeting.

Never mind.

The commission’s long hiatus has resulted in a huge backlog of natural gas pipeline projects and electric orders awaiting FERC action. Former commissioner Tony Clark told Utility Dive, “It’s going to be a challenge the commission hasn’t faced before,” noting that the backlog of agenda items could be “several hundred deep.”

Among the gas pipelines lined up for FERC approval are Dominion Energy’s $5.5 billion Atlantic Coast Pipeline, moving gas 600 miles from West Virginia’s shale gas wells through Virginia to the Carolinas, and the $2.1 billion 256-mile Nexus pipeline transporting gas from Ohio’s Utica shale formation to Michigan and Canada.

Former FERC commissioner Colette Honorable told Bloomberg BNA, “Matters with urgent deadlines, matters with regard to infrastructure projects, matters concerning ratemaking as it may relate to rates that may go into effect, may be higher in the queue.”

Probably among the earliest actions the newly-empower FERC will take are settlement agreements from its Office of Enforcement, which face statute of limitations requirements. Clark said, “All of those things are non-public, so we wouldn’t know about them, but it would only make sense that the work of staff over the past six months may need to be acted on in fairly short notice.”

The new commissioners will need time to get up to speed, including hiring staff to support their offices. But none of the four new commissioners are newcomers to the issues. Chatterjee worked on FERC issues when staffing McConnell. Powelson was a member of the Pennsylvania Public Utility Commission and past chairman of the National Association of Regulatory Utility Commissioners. McIntyre is a long-time energy litigator and co-head of the extensive Jones Day energy practice in Washington. Glick is the Democratic counsel at the Senate Energy and Natural Resources Committee, with experience going back to serving Sen. Dale Bumpers (D-Ark.) on the energy committee, and advising the Department of Energy during the Clinton administration.