The first order of business will be to move out major orders that are ready for decision. Four major natural gas pipelines have completed Environmental Impact Statements and await final authorization. Because many authorizations limit construction when migrator species are present at a project site, a delay in FERC action could result in many months of additional delay in construction. However, these projects require complicated orders and, in some cases, further public comment, so issuance of final orders before Bay’s resignation takes effect may not be possible.
On the electric side, parties in New England are awaiting FERC’s decision on the ISO’s regional returns on equity for electric transmission, an expansion of which is sorely needed in the region.
Without a quorum, FERC staff has considerable authority to continue processing cases, including both litigated matters and paper proceedings, but it generally cannot act unless cases are uncontested or routine. Staff will be reticent to wade into any matters that could elicit controversy or court action, even if it is authorized to act on the merits of a project or a rate. This is at least partly due to one unanswered question: how can FERC staff exercise the authority of the Commission, using the delegations in the agency’s Rules, if the Commission itself lacks authority to act? To our knowledge no one has challenged FERC staff actions on those grounds, probably because this is the first time since 1993 that the agency has been without a quorum for any length of time.
During this hiatus in FERC action, new rate filings may be filed and those rates could go into effect by operation of the Natural Gas Act or Federal Power Act without Commission orders to suspend those rates and/or set them for hearing. In that case, FERC would later have the burden of demonstrating that those effective rates are not just and reasonable under the statutes and FERC precedent.
When will the White House and the Senate solve this problem with newly confirmed commissioners? To date, no FERC nominations have gone to Capitol Hill. When they do, FBI background checks, courtesy visits, a hearing or multiple hearings, and finally the necessary Committee and floor votes will stand between the nominees and a new quorum at 888 North First Street, NE. Optimistically, we may see a resolution by April or May.