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President Trump appointed Commissioner Cheryl La Fleur to be acting Chair of the Federal Energy Regulatory Commission (FERC) on Thursday. Due to resignations of Republican Commissioners last year that went unfilled, there are currently three Democrats and no Republicans on the 5-member FERC.
So the President had limited choices for an acting FERC Chair but LaFleur, a former utility executive and loyal New England Patriots fan, is viewed positively by industry.
However, LaFleur's appointment spurred the Obama Administration appointed-Chairman Norman Bay to resign effective February 3. Bay was expected to resign later this year even though his term on the commission does not expire until June 2018.
Bay's departure means FERC will have just two commissioners and therefore no quorum to take any significant actions or make decisions.
It seems unlikely FERC will make a flurry of decisions next week before Bay leaves on February 3 so many pending projects are now facing potential months of delay. Several key projects awaiting approval include:
- Rover project by Energy Transfer Partners;
- PennEast shale line by developers UGI and Spectra Energy;
- Atlantic Sunrise by Williams Partners;
- Nexus system by Spectra Energy; and the
- Northern Access expansion by National Fuel Gas Company.
The White House now has three open FERC Commissioner seats to nominate candidates. Certainly, the nomination of a Republican Chairman will be a high priority. But this process could take months and leave the commission without a quorum until June.
There are names of several well-qualified Republican candidates for the commission making the rounds in Washington. Among them are:
- Neil Chatterjee, the top energy staffer to Senate Majority Leader Mitch McConnell;
- Janet Sena, Senior Vice President for Policy and External Affairs at the North American Electric Reliability Corporation and a former long-time aide to former Indiana Senator Richard Lugar;
- Doug Little, a Commissioner on the Arizona Corporation Commission and former commission chairman until December 2016; and
- Rob Powelson, a Commissioner on the Pennsylvania Public Utility Commission, former Chairman of the Pennsylvania Commission and current President of the National Association of Regulatory Utility Commissioners (NARUC).
Confirmations of FERC commissioners are notoriously tricky affairs having to balance party affiliations, geographic regions and various congressional powerbrokers. Another complication is that current Democrat Commissioner Collette Honorable’s term expires in June. If the White House reappoints her and she accepts, it could make confirmations of the other nominations easier. If not, there will be wrangling among Democrats to rally around a replacement that the White House will support.
Most of the President’s cabinet has not been confirmed to date despite the fact that Senate Republicans only need 51 votes to confirm. The slow pace of Cabinet confirmations along with other upcoming sub-cabinet nominations means that FERC nominations not yet made could see delays of several months.
To begin the process, President Trump needs to make the nominations. Even an expedited process that entails individual one-on-one meetings with key Senators, a confirmation hearing at the Senate Energy & Natural Resources Committee, a committee vote and confirmation vote in the full Senate could take two months.
Many Senators view FERC has a very powerful regulatory agency and therefore will be interested in the backgrounds and positions of the potential nominees. Senator McConnell’s aide Chatterjee is most likely already known to key Senators and may receive more deference in the confirmation process.
One possible scenario is that the President nominates a FERC Chairman quickly and the Senate agrees to accelerate the confirmation process to resolve the lack of a quorum at the agency. But this approach likely means delayed consideration of the remaining two Republican seats and perhaps an open Democrat seat in June.
