Tag Archives: quorum

Restore the Quorum

25 Jul

Frustration over the lack of any appreciable progress in Washington is at an all-time high. It’s especially egregious considering the same political party presently controls the executive branch and both houses of the legislature.

Conservative leaning policies were expected to be the order of the day. Many Americans, desperate for a government that worked, cast their votes in unconventional fashion hoping to shake the status quo. Instead, gridlock, confusion, and rancor still occupy every nook and cranny of government. Clearly, the November shake up wasn’t hard enough.

JPMorgan Chase CEO, Jamie Dimon, seldom seen as the "average Joe" on Main Street, reflected people’s frustration when he recently opined, “[He’s] tired of listening to the stupid s_ _ _ we have to deal with in this country.” He went on to say the situation has hurt the American economy which, because of “stupidity and political gridlock”, only grew at 1.5 to 2 percent since the Great Recession.

Blame for the quagmire extends in all directions. Republicans blame Democrats for obstructing the president’s agenda. The Democrats point fingers at the President for dilly dallying in nominating people to fill open positions. All the while, Washington’s crisis du jour diverts critical attention from serious day-to-day business. The results speak for themselves:

 SENATE CONFIRMATION OF APPOINTEES *
 Nominated  Confirmed  Failed

 Avg. Days to Confirm
Trump

197

 48 4

44
Obama

356

 149 5

37
W. Bush

296

 149 2

27
Clinton

256

 196 4

28
HW Bush

243

 144 1

30
Source: Center for Presidential Transition

* Excludes non-civilian & judiciary positions   

   As of mid-July, of first year

A prime example of the resulting gridlock is the unprecedented existence of the lack of a quorum of commissioners at the Federal Energy Regulatory Commission.

FERC, among other things, regulates the transmission and wholesale sales of electricity and natural gas in interstate commerce, and regulates the transportation of oil by pipeline in interstate commerce. FERC also reviews all proposals to site, construct and operate natural gas pipelines, storage and LNG terminals, and issues licenses to non-federal hydropower projects.

The agency is composed of up to five commissioners who are appointed by the President and confirmed by the Senate. The President appoints one of them to be the chairman and no more than three commissioners may be from the same party.

FERC employs extensive technical and environmental expertise and has developed a deep body of energy regulatory jurisprudence. As a result, it’s uniquely positioned to oversee the implementation of energy policy and review and permit new energy infrastructure

Three commissioners (a “quorum”) must be seated for FERC to meet and issue major decisions. While there is some limited ability for certain matters to be delegated for handling by FERC staff, the significant issues must wait until a quorum is re-established.

Despite the importance of FERC in implementing many of the energy, environment, commerce, and infrastructure related policies of the new administration, the agency has been hamstrung for the past six months.

The quorum was lost in February after then chairman, Norman Bay, a democrat appointed by President Obama, resigned. A few months later, another of the two remaining commissioners left FERC.  The last remaining commissioner, acting chairman, Cheryl LaFleur, has vowed to continue through her term and has been performing yeoman’s work keeping FERC functioning during these difficult circumstances.

The impacts from the lack of a quorum are real and acute. According to a recent report by Bloomberg, more than $50 billion in energy projects are awaiting FERC action. The Interstate Natural Gas Association of American stated that at least one dozen interstate natural gas pipeline projects amounting to $14 billion in total costs are bottlenecked. In addition, critical policy issues such as those related to electricity market restructuring reforms cannot be fully addressed.

Help is on the way, but it’s as if its taking the New York subway to get here…fits and stops and no guarantee when it might arrive. President Trump has nominated three Republicans and is soon expected to nominate a Democrat appointee. Two of the Republicans have completed their confirmation hearings, but have yet to receive a Senate vote of approval.

Our dysfunctional government has reached a critical level. Gridlock and delays threaten the nation’s path to energy security, economic growth, job creation, infrastructure investment, and environmental progress. Six months was more than enough time for the president to nominate and the Senate to confirm the FERC commissioner appointments.

There is no reasonable excuse not to restore the quorum at FERC before the summer recess. All that is asked is for the Senate and the administration to do its job so that the American people can do their jobs.

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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.

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