Tag Archives: FERC

All Quiet on the Eleventh Floor

10 Feb

Last Friday, the Federal Energy Regulatory Commission (FERC), the independent regulatory agency within the Department of Energy, was left with only two sitting Commissioners leaving it in the unprecedented position of lacking a quorum.

The lack of a quorum among the five Commissioners, who offices occupy the eleventh floor of a nondescript Washington, DC office building at 888 North First Street adjacent to the Union Station railyard, does not prevent FERC from carrying out most of its day-to-day functions, but if it extends for very long, will affect the “America First Energy Plan.”

A relatively unknown agency whose actions touch the lives of nearly anyone using electricity or natural gas, FERC originated in 1920 as the Federal Power Commission to preside over hydropower development. Congress gradually expanded its jurisdiction to include regulation of both hydropower and interstate electricity, interstate natural gas pipelines and wholesale gas sales (the Natural Gas Act of 1938), and eventually (resulting from a 1954 Supreme Court decision) all wellhead sales of natural gas in interstate commerce.

During the decade of the OPEC oil embargos, Congress established the Department of Energy (DOE) in 1977, consolidated energy activities and transformed the FPC into the Federal Energy Regulatory Commission, an independent agency within the DOE. During the next ten years, FERC presided over the end of federal price regulation of natural gas while introducing competition to both gas and electric markets.

As an independent agency, neither the President, the Secretary of Energy, any officer or employee of DOE, or Congress review FERC decisions. Its decisions may be appealed to federal courts. Occasionally, DOE has intervened as a third party in FERC proceedings.

Not only is it intended that FERC be independent, but also bipartisan. The full Commission consists of 5 members appointed by the President and confirmed by the Senate. The President also appoints one of the Commissioners to be Chairman. However, no more than three Commissioners may belong to the same political party.

On January 26th, President Trump named Commissioner Cheryl LaFleur, a Democratic appointee, Acting Chairman. Then Chairman, Norman Bay, nominated by President Obama in 2014 and whose term expires in June 2018, made the unusual move to resign both his Chairmanship and appointment on the Commission, effective February 3rd. That left FERC with only one Commissioner and the Acting Chairman — a Commissioner short of the mandated 3-member quorum necessary “for the transaction of business.”

As a holding action until another Commissioner is appointed by President Trump and confirmed by the Senate, FERC delegated authority to agency staff to continue certain actions such as accepting and suspending rate and tariff filings, granting requests for an extension of time, accepting uncontested settlements, performing environmental and safety reviews, audits, and hydro inspections during this non-quorum period.

The delegation does not allow staff to issue new policies, propose rulemakings, and probably most importantly, issue certificates needed to site, construct and operate new energy infrastructure subject to FERC jurisdiction. In other words, new interstate natural gas pipeline projects waiting for approval from FERC cannot proceed until the quorum is re-established.

Clearly, this isn’t the reduction of government the new administration had in mind when it came to Washington to “drain the swap.” In fact, the longer this untenable situation exists, the more likely it is to impede progress in tapping the estimated $50 trillion in oil and natural gas reserves envisioned by the America First Energy Plan.

Fortunately, due to the nature and makeup of this independent agency, FERC itself has historically operated with civility and comity, even as it debated and implemented contentious matters of regulatory policy and rulemaking.

Although it has many critics and is sometimes overruled on appeal, as an independent agency, FERC strives to apply the law by the facts of the record placed before it. FERC’s quasi-judicial procedures combined with many years of guiding precedent lead some to believe it’s too bureaucratic, but on the other hand, it prevents decisions from being made strictly on political whim.

Acting Chairman LaFleur is a steady hand and has been in this position before. She said that she intends to, “keep the Commission moving forward during this transition.” Applicants as well as intervenors can be assured the agency will continue to hear their arguments during this unsettled interim period.

While it typically takes weeks or a few months to replace vacant positions on the Commission, given the current level of rancor exhibited by opponents to President Trump’s agenda, a prolonged non-quorum period is highly likely.

Rumors abound that the Trump administration is looking to another Texan with energy bona fides to be nominated Chairman. The rumored nominee, Barry Smitherman, is a former investment banker, member on the Texas PUC, and former Chairman of the Texas Railroad Commission that regulates the Texas oil & gas industry. What could possibly hold up Senate approval of such a qualified candidate?

One final note. After the next Chairman is seated, President Trump has two more positons to fill on the eleventh floor at FERC; both Republican nominees. Elections have consequences and while FERC is an independent regulatory body, its focus will soon clearly skew Republican.

Plentiful, Affordable, Reliable, but especially Reliable

29 Sep

Reliability is one of those things we don’t notice until it’s not there.

There was an interesting article published last week in The New York Times by James Glanz entitled, “The Cloud Factories: Power, Pollution and the Internet.” While the story line revolves around the vast amount of energy that modern data centers consume and the pollution associated with it, the story also highlights an issue most folks outside the industry do not  usually think about.

We turn on a light, switch on the stove burner, or jump on the internet and expect it to work. Service is there, 24/7, without fail — usually.

Our energy delivery systems, especially the electric grid, are designed and operated to be highly reliable. The electric grid is designed and operated to ensure system integrity. Ancillary services spread throughout the generation, transmission, and distribution systems keep it up and running nearly without fail. But, when it does fail, it’s a newsworthy event.

One of the tools used to provide this flawless delivery is reserve capability. The power grid is built with excess capacity over and above what the operators expect the maximum demand to be. (called “peak demand”) This backup capacity is used when a primary power source fails, or if demand exceeds the planners estimates of peak demand. It’s an effective “belt and suspenders” approach.

In the U.S., the electric transmission grid and wholesale sale of electricity in interstate commerce (sales that cross state borders) is regulated the Federal Energy Regulatory Commission (“FERC”). FERC, in turn, certified the North American Electric Reliability Corporation (“NERC”) to ensure the electric network’s reliability by developing and enforcing reliability standards and assessing the grid’s adequacy.

NERC divides the U.S power grid into 14 regions and makes reliability assessments three times each year. With the exception of Texas, every region has a positive reserve margin. That is, there is excess capacity in 13 of the 14 regions. Due to its operating and commercial structure, the Electric Reliability Council of Texas, (“ERCOT”) faces some unique challenges. As a result, ERCOT has experienced rolling brownouts and blackouts over parts of Texas during recent peak summer and winter periods.

The point of all this, however, is that the data centers examined in the NY Times article are not as unique as the author seemingly implies. Maintaining a high degree of reliability demands that redundant systems that sit idle a good deal of time be in place. Whether its Google, your bank, a hospital, or the power grid, standby capacity is essential if the system is going to operate without a hitch.

As our legislators and regulators develop new energy policies and make choices about how best to generate, transmit, and deliver plentiful and affordable electricity, reliability issues will be front and center. Studies by both industry and academic institutions have shown that if intermittent renewables (particularly wind and solar) become a significant portion of our electricity generation, it will increase the need for backup generation (especially natural gas) to provide the reserve margin.

Of course, reserve capacity that sits idle most of the time is expensive. The trade off between spending more money on reserve capacity and risking reliability is a judgement call. How much is enough? Just as important is the question of how to create incentives for investors to build such expensive, seldom used, but essential facilities. Certainly, there may be room for efficiency offsets, but as the NY Times article points out, infrastructure is needed to support these operations.

Whether it’s using the cloud for computing or smart grid technology to deliver our electricity, large scale infrastructure remains a necessity.  Just as with reliability, most of us will never notice it except when it’s not there.