Federal Energy Regulatory Commission Chairman Neil Chatterjee speaks during a May 2017 Senate confirmation hearing. |
Federal Energy Regulatory Commission Chairman Neil Chatterjee said Sept. 26 that the agency has a plan to deal with recusal issues, which have caused two hotly contested ISO New England rate changes to take effect automatically and further delayed a highly anticipated PJM Interconnection capacity auction.
"I think we've done a good job of mapping out where we might have recusal issues and we've got a strategy in place for how to tackle it," Chatterjee told reporters Sept. 26 at the National Clean Energy Week symposium in Washington, D.C. "I don't think the volume and quantity of matters that require recusal is something that we cannot manage."
FERC is now down to the minimum of three members it needs for a voting quorum, and U.S. Sen. Lisa Murkowski of Alaska, who chairs the committee responsible for advancing FERC nominees, gave no indication on Sept. 25 that President Donald Trump is close to filling either of the commission's two empty seats.
The FERC chairman acknowledged on Sept. 26 that the lack of a full complement of commissioners could cause additional rate filings to take effect by operation of law in the absence of agency action. Under the Federal Power Act, tariff filings become effective if FERC allows 60 days to pass without acting on them. Congress amended the statute through the 2018 Fair RATES Act to make those types of changes judicially reviewable, but that amendment has yet to be tested in court.
'The challenges of reality'
Meanwhile, an ISO-NE winter fuel security program and the grid operator's most recent forward capacity auction results have both taken effect within the last two months due to a lack of a voting quorum. "That's just one of the challenges of reality and one of the things we have to deal with under the Fair RATES Act," Chatterjee said.
Chatterjee added that he understands the frustration of PJM stakeholders waiting for FERC to issue an order on the grid operator's proposed capacity market overhaul, which includes changes aimed at mitigating the price-suppressive effects of state subsidies for renewable and nuclear generation resources.
Observers had expected FERC to issue an order in the proceeding shortly after former Commissioner Cheryl LaFleur's departure at the end of August. But an order could be delayed until late November at the earliest in the wake of Commissioner Richard Glick's announcement that he will recuse himself until Nov. 29 from all matters in which his former client, Iberdrola SA subsidiary Avangrid Inc., is a participant.
"Commissioner Glick has indicated that he is likely recused from that proceeding and is not seeking a [White House] waiver, but we will continue to do our work to ensure that once that quorum is restored we can act as expeditiously as possible," Chatterjee said.
Chatterjee also pushed back on the idea that the commission's work could become increasingly politicized if the president breaks with tradition and decides not to pair a Republican FERC pick with a Democratic nominee.
Following the September 2016 departure of Republican Commissioner Tony Clark, FERC operated with three Democratic commissioners until Commissioner Norman Bay stepped down in February 2017. That left the agency without a voting quorum for six months, creating a deep backlog to work through.
"There was not a Republican on the commission from September of 2016 until August of 2017," said Chatterjee, who was officially nominated by Trump in May 2017. "I don't recall these similar kinds of questions being asked then because the commission was able to move forward and do its work, and I anticipate that we will do the same."

