On August 3, 2017, the Senate confirmed both Neil Chatterjee (R) and Robert Powelson (R) as FERC Commissioners, returning FERC to a quorum after six months. FERC has been unable to issue major decisions without a quorum, although staff work has continued to work on a variety of fronts, including issuing environmental reviews for various pipeline construction and other energy projects. The Senate confirmations should be a relief for the energy industry, which has been subject to prolonged uncertainty as major project approvals have been at a standstill since February.
The quorum will be restored as soon as Chatterjee and Powelson are sworn in, which historically has taken from one to three weeks. The confirmation of the nominations of Chatterjee, a former aide to Senate Majority Leader McConnell and Powelson, a Pennsylvania regulator, brings the Commission to 3 members of what is typically a 5 member Commission. Trump previously announced nominations of Kevin McIntyre (R), an energy lawyer in private practice, and Richard Glick (D), a Senate aide, for the two remaining vacancies weeks ago, but only nominated them formally this week. The Senate Energy and Natural Resources Committee has scheduled a hearing on those nominations for September 7, 2017.
While these confirmations are a welcome step forward for the energy industry, for which major project approvals (which some estimate at $50 billion) have been at a standstill, industry likely remains cautious until FERC’s traditionally 5 member body is fully restored. Once Chatterjee and Powelson are sworn in, there should be a flurry of action by FERC to process pending applications. Acting FERC Commissioner Cheryl LaFleur reacted to the news stating, “our first order of business is the backlog of orders and issues that are awaiting Commission consideration.” The new commissioners will need to work extensively with staff to get up to speed, who have been performing certain Commission duties under a delegation of authority before FERC lost its quorum.
Meanwhile, a recently approved House bill regarding streamlining the permitting of interstate natural gas pipeline projects has been referred to the Senate Committee on Commerce, Science and Transportation. HR 2910, entitled the Promoting Interagency Coordinator for Review of Natural Gas Pipelines Act, would facilitate more timely and efficient review of such pipeline projects and strengthen FERC’s role as the lead agency in siting those projects. Specifically, the bill would compel federal and state agencies participating in gas pipeline project reviews to conduct their reviews concurrently with FERC and to adhere to the schedule established by FERC. FERC would be “the only lead agency” and other agencies participating in project-related NEPA review would be required to give deference (as authorized by law) to the scope of the project-related NEPA review that FERC determines is appropriate. Federal authorizations, which are typically in the form of permits, would be required no later than 90 days after FERC completes its NEPA review. Notifications must be submitted to Congress if any agency, including FERC, does not meet its review deadline.
Both of these developments come at a time when the permitting process for natural gas pipelines has become protracted, cumbersome, and subject to third party challenges and delays at the federal, state and local levels. This is welcoming news not only for those companies with currently pending applications, but also for the industry as a whole. With a quorum, FERC will be able to move forward in the review of pending and future projects and if HR 2910 is passed, Commission reviews of interstate natural gas pipeline projects should be expedited and more streamlined.