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Wyoming Pipeline Authority Challenges FERC's Authority to Delegate During Quorum Drought

FERC lacked the authority to delegate to its staff authority to take action, according to the Wyoming Power Authority (WPA), which has requested that the Commission rescind its Feb. 6 delegation order that would allow staff to act on some filings while FERC lacks a quorum [AD17-10].

The order was invalid as a matter of law and exceeded the Federal Energy Regulatory Commission's authority to delegate authority to take action under the Natural Gas Act, the Federal Power Act and the Interstate Commerce Act, WPA said in a request for rehearing filed March 6.

In the days leading up to former Chairman Norman Bay's Feb. 3 resignation and the resulting loss of a quorum,FERC handed down a slew of orders and set the terms for how it would conduct important business until at least one new commissioner is confirmed. According to thedelegation order, FERC staff would be authorized to act on rate filings; grant extensions of time and waiver requests; and approve uncontested settlements. The order did not grant staff the authority to issue orders approving certificate applications for natural gas projects.

But, according to WPA's request for rehearing, "when the Commission cannot act due to a lack of a quorum, it follows that the staff cannot act in the Commission's stead under such circumstances..." While limitations imposed by the delegation order on the actions staff may take "mitigat[e] somewhat the degree of illegality, [they] do not remedy the fundamental illegality of the order." The order was also deficient in attempting to extend previous FERC delegations of authority to staff, WPA said.

"The delegation order is ineffective at remedying the consequences of the lack of a quorum at the Commission. That deficiency may only be remedied by appointment of additional Commissioners," according to WPA.

President Trump reportedly plans to nominate at least two, but possibly three, individuals to FERC, according to published reports, though the White House has kept mum on the topic.     According to reports, Trump plans to nominate Kevin McIntyre, an attorney with law firm Jones Day, and install him as the new chairman. McIntyre currently serves as co-head of the firm's global energy practice. Reports have also identified Neil Chatterjee, a longtime energy policy adviser to Senate Majority Leader Mitch McConnell (R-KY), as a possible FERC nominee.

FERC has been without a quorum sinceBay's departure. Lawmakers in Congress have sent several letters to Trump, urging him to make nominations to FERC. The most recent letter was signed by 16 Senate Democrats, including Sen. Maria Cantwell (D-WA), the ranking member of the Committee on Energy and Natural Resources. House members sent two similar letters to Trump last month, both on Feb. 22. The first letterwas signed by 14 Democrats; the second was signed by 92 House members from both parties.

In addition to the three empty seats waiting to be filled, Colette Honorable will need to have her term extended or be replaced this year, since her term expires June 30. Acting Chairman Cheryl LaFleur's term is due to expire June 30, 2019.

New FERC commissioners must be confirmed by the Senate, a sometimes lengthy process.

FERC canceled its Feb. 16 agenda meeting andsuspended subsequent monthly meetings as it awaits appointment of enough commissioners to achieve a quorum.

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