On January 26, 2017, former FERC Chairman and current Commissioner Norman Bay announced his resignation from the Commission, effective February 3, 2017 (Commissioner Bay’s resignation letter to President Trump is available here). Commissioner Bay’s announcement followed on the heels of President Trump’s decision to appoint Commissioner Cheryl LaFleur as FERC’s Acting Chairman. Commissioner Bay’s resignation will leave FERC with only two Commissioners, which is less than a quorum. Without a quorum, FERC cannot make final decisions on most issues, including contested rate making issues, public utility transactions, and interstate natural gas pipeline and LNG facility certificates. However, under delegated authority FERC Staff will be able to issue letter orders approving certain uncontested items, such as applications under Section 203 and Section 205 of the Federal Power Act, and to issue notices to proceed, schedules of environmental review, and environmental review documents for natural gas pipeline and LNG projects. In addition, hearings pending before FERC’s administrative law judges should be able to continue to progress, though the Commission will not be able to approve settlements or take other formal action until a quorum is in place.
Thus far, President Trump has not formally nominated anyone to fill the vacant Commission seats and given the number of cabinet nominations already in the confirmation process, it will likely take some time for any of the vacant Commission seats to be filled. Thus, barring a significant push from the industry to prioritize the vacant Commission seats, it could be weeks or months until a quorum can be reached at the Commission and normal activity resumed.