August 2, 2021

Volume XI, Number 214


July 30, 2021

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FERC Issues Order to Delegate Further Authority to Staff in Absence of Quorum

On February 3, 2017, FERC issued an Order Delegating Further Authority to Staff in Absence of Quorum, which provides for further delegations to enable FERC to continue to carry out various obligations under the Natural Gas Act (NGA), Federal Power Act (FPA), and Interstate Commerce Act (ICA).  In pertinent part, the delegation order states the following:

  • Delegations Generally.
    • The delegations of authority are effective during the Delegation Period, which starts on February 4, 2017, and continues until 14 days after the date on which a quorum is reestablished.
    • Delegations are made to the relevant office director, who may further delegate to his or her designee. 
  • Pre-Existing Delegations. All pre-existing delegations of authority by the Commission to its staff remain effective, including the Secretary’s authority to toll the time for action on rehearing requests (also referred to as tolling orders), and the authority of the Director of Office of Energy Market Regulation (OEMR) authority to accept uncontested tariff or rate schedules that would result in rate increases. 
  • Continuation of Activities Related to Safety.  Limited Commission operations can continue, including inspecting and responding to incidents at LNG facilities and jurisdictional hydropower projects, and other activities involving the safety of human life or protection of property.
  • Further Delegations Regarding Rate Proceedings. 
    • Accept and suspend filings and make them effective, subject to refund, and further Commission order; or
    • Accept and suspend filings and make them effective, subject to refund, and to set them for hearing or settlement judge procedures.
    • With respect to contested rate and other filings under Section 4 of the NGA, Section 205 of the FPA, and Section 6(3) of the ICA, the Director of OEMR shall have authority to:
    • With respect to initial rates or rate decreases under Section 205 of the FPA where suspension and refund protection is not available, Commission Staff may institute a proceeding to protect customer interests pursuant to Section 206 of the FPA.
    • The Director of OEMR may accept uncontested settlements.
  • Further Delegation Regarding Uncontested Requests for Waivers.  The Director of OEMR may take appropriate action on uncontested filings seeking waivers of the terms and conditions of tariffs, rate schedules, and service agreements (including requests for waiver of capacity release and capacity market rules) made under Section 4 of the NGA, Section 205 of the FPA, and Section 6(3) of the ICA.
  • Further Delegation Regarding Extensions of Time.  Commission Staff may extend the time for action on matters where extension is permitted by statute, including extensions of a 180-day period for applications for prior approval under Section 203 of the FPA.

FERC’s order is intended to prevent filings made to the Commission from going into effect by operation of law after a certain period of time as defined by statute.  However, it also creates uncertainty because any contested rate filings approved by staff and allowed to go into effect will be subject to refund and further review by a Commission having up to three new members once a quorum is reached.  It also may result in more filings being set for hearing and settlement judge proceedings, including potentially all initial rate filings that are contested.

Copyright 2021 K & L GatesNational Law Review, Volume VII, Number 35

About this Author

William Keyser, KL Gates Law Firm, Energy Law Attorney

William Keyser, a partner in Washington, D.C., focuses his practice on regulatory litigation and transactions involving the nation’s electricity and capacity markets. Will represents clients before the Federal Energy Regulatory Commission (FERC), the Department of Energy, federal and state courts and state public utility commissions. His clients include electric utilities, transmission providers, independent power providers, hydro electric power producers, power marketers, public utility holding companies, and debt and equity investors. Will has represented and counseled...

Sandra Safro, KL Gates Law Firm, Energy Attorney

Ms. Safro is a partner in the firm's Washington, D.C. office. She focuses her practice on regulatory, policy, and transactional issues related primarily to natural gas, liquefied natural gas (LNG), crude oil, and natural gas liquids (NGLs). Ms. Safro regularly advises clients on matters related to commodity and pipeline transportation issues, including the Federal Energy Regulatory Commission’s (FERC) policies related to capacity release and in the negotiation of precedent agreements, negotiated rate agreements, asset management arrangements, transportation service...

Molly Suda, KL Gates, electricity markets lawyer, FERC compliance attorney

Molly Suda focuses her practice on regulatory compliance, enforcement, and transactional matters involving electric utilities, electric transmission owners, independent power producers, power marketers, and public utility holding companies that are active in the electricity, capacity, and ancillary services markets in the United States. Ms. Suda regularly represents clients before the Federal Energy Regulatory Commission (FERC), federal courts, and the Department of Justice and advises on issues before state public utility commissions. Ms. Suda has represented clients in...