Mark Christie, the new chairman of the US Federal Energy Regulatory Commission, discussed the agency's stance on environmental justice, staffing and FERC independence, following a sweep of White House initiatives, in a wide-ranging interview with S&P Global Commodity Insights on Jan. 31.
Christie reiterated his longstanding priorities, focusing on the need to develop energy infrastructure to support reliability while also scrutinizing rates for retail consumers.
"I have the same priorities I've had since I got here four years ago," Christie said. "I'll continue to emphasize those issues, but one thing about FERC, I'm just one vote out of five."
President Donald Trump tapped Christie to lead FERC on Jan. 20 amid a flurry of executive actions that focused on energy and permitting.
The president's campaign statements — along with the recent firings of commissioners at the Equal Employment Opportunity Commission and the National Labor Relations Board — have indicated that the administration intends to exert more authority over independent agencies. Trump has also spoken of using emergency powers, including to add to the nation's power generation resources.
"We're independent but we're not immune to the law," Christie said.
"The [Department of Energy] Organization Act says that we're independent on regulatory matters," Christie said. The DOE can propose regulations for FERC, "but we vote them up or down."
In administrative matters, "we're not in a vacuum," Christie said. "For decades, FERC has followed guidance on personnel matters to a degree."
Christie noted that FERC is not entirely independent when it comes to hiring, giving the example of the US Office of Personnel Management (OPM) sitting on his request to hire an "outstanding lawyer" for his staff under a prior administration.
In what could be an important test case, on Jan. 29 American Efficient LLC filed a lawsuit that said FERC's structure violated the separation of powers clause in the US Constitution because commissioners are "improperly insulated" from presidential oversight and exercise "significant executive powers" in enforcing statutes, including the Federal Power Act.
The DOE Organization Act states that the president can only fire a commissioner for "inefficiency, neglect of duty or malfeasance in office."
Christie said the constitutional issue raised in the case was an interesting one.
"But as we speak today, Congress has passed the DOE Organization Act. We're going to follow it," he said. "The only way you change FERC's independence as laid out in the DOE Organization Act is either Congress changes the statute or a court strikes it down."
Staffing
Top of mind for some FERC staffers has been how government-wide initiatives to cut the federal workforce will affect the agency.
FERC employees "are highly skilled, they're highly sought after by the private sector ... so I'm very concerned we don't lose the people essential to getting pipeline permits processed," Christie said. "FERC is essential to the energy future of the United States, and we have employees who are essential for that future."
OPM, which serves as the human resources arm of the federal government, offered nearly all federal workers their full salaries and benefits for eight months if they agreed to resign by Feb. 6.
Trump issued an executive order Jan. 20 requiring federal employees to return to the office five days per week, which raised questions about whether there is enough office space to bring staff back full-time. The executive order gives agency heads the authority to make necessary exceptions to the return-to-work requirement.
The chairman said he was committed to addressing the "practical implications" of the orders.
"We communicated to OPM about our space issues and lack of space, and we'll work through it," Christie said.
Pipelines and environmental justice
Christie also discussed FERC's removal of public-facing references on its website to "environmental justice." The step was intended to reduce confusion about the commission's legal obligations, given recent court developments and White House executive orders regarding National Environmental Policy Act regulation and environmental justice, he said.
The White House has reversed several executive orders that set directions for agencies related to environmental justice considerations, including one dating back to the Clinton administration.
Shortly after the Jan. 20 Trump administration orders, FERC disabled links to prior press releases referencing its various steps on environmental justice. FERC's environmental justice efforts were often tied to engaging communities and considering the potential for disparate impacts of new gas projects on low-income, minority populations, such as those already facing high levels of pollution from industrial facilities.
"The point is, you want to avoid confusion, and this has been an ongoing source of litigation, because there are numerous cases ... where the DC Circuit said you didn't properly follow [Council on Environmental Quality] guidance" on environmental justice, Christie said. "We had to remove any documentation that read like an operational reality because of the legal impact."
According to Christie, FERC, as an independent agency, has not had to follow the council's regulations related to the National Environmental Policy Act and environmental justice but voluntarily has chosen to do so over time.
By his analysis, the reversal of executive orders eliminated the guidance that FERC has voluntarily followed.
Minimizing impacts
The new chair nonetheless maintained that it is important to look at how people are affected by infrastructure and make "special efforts to reach out to people who are not represented by the Washington law firms, and ... don't have the lawyers and the lobbyists in the trade associations looking to help them."
That outreach is what FERC's Office of Public Participation does, Christie said.
Those efforts will no longer be called environmental justice since the Council on Environmental Quality no longer has environmental justice rules, he said, but "we will still be very focused on appropriate mitigation to minimize the impact on all the affected communities."
