Former FERC Commissioner Assess the Road Forward for Agency Under Trump Administration

02/21/2017
The Federal Energy Regulatory Commission's (FERC) lack of a quorum will have serious implications on the agency's rule-making ability as time passes suggested four former FERC commissioners in an EBA Energizer: Looking Forward with an Eye on the Past. The event was hosted by Spiegel & McDiarmid LLP on February 21. Scott Strauss, a Partner with Spiegel & McDiarmid LLP, served as moderator.
 
A lack of quorum is an unusual situation suggested James J. Hoecker, a Senior Counsel & Energy Strategist with Husch Blackwell and FERC Chairman from 1997 to 2001. He noted business could go forward, but with some uncertainty as FERC decisions would likely face challenges. The other panelists, which included former commissioners Anthony Clark, a Senior Advisor with Wilkinson Barker Knauer LLP, Suedeen Kelly, a Partner with Akin Gump Strauss Hauer & Feld LLP, and Marc Spitzer, a Partner with Steptoe & Johnson LLP, agreed.
 
Commissioner Kelly noted FERC averaged about 5 1/2 orders a day during her tenure. Current FERC Chairman Cheryl LaFleur estimates about 20% of the agency’s orders get contested. Without a quorum, FERC will not be able to rule on some decisions, Commissioner Kelly believed. The former commissioners agreed future litigation will likely slow FERC's process even further, but also noted that the efficiency and effectiveness of FERC's staff, and the agency's non-partisan nature were factors that would help bridge the current period of transition. 
 
There was debate as to how long FERC would remain without a quorum. Kelly noted the FBI's vetting process for potential appointees could take several months even before the Congressional approval process. However, she added, it could go quickly if Senate leaders decide to move on Administration nominees quickly. Commissioner Clark noted that staff had been doing some pre-emptive work and thinking about the impact of a potentially operating without a quorum even while he was on commission
 
There was consensus among the panel that a shift in political perspectives would have limited impact on the independent nature of the agency and that the period of most White House influence would be during the confirmation process. However, panelists also believed a Trump appointee at chairman would likely emphasize infrastructure development and reliability issues rather than on-demand response and efficiency issues.