The Federal Energy Regulatory Commission's (FERC) February 3, 2017 "delegation order"1 that was issued on the last day it had a quorum was the topic of a recent alert.2 The order, as we noted, aimed to preserve and expand the authority of its staff to act on important agency functions once the quorum disappeared. But as we also cautioned, the court cases relied on in the delegation order did not resolve a key issue - whether substantive agency delegations, even in uncontested cases, would remain valid when a quorum no longer existed. This issue, we said, would remain unresolved "as long as the underlying February 3, 2017 delegation order is subject to challenge."

On March 6, 2017, the last day FERC's delegation order could be challenged, the Wyoming Pipeline Authority filed a request for rehearing, arguing that FERC's delegation of substantive authority, including the authority to issue tolling orders on requests for rehearing, was unlawful under the Natural Gas Act, the Federal Power Act and the Interstate Commerce Act (the three principle sources of the agency's authority).