On March 6, 2017 the Wyoming Pipeline Authority (“WPA”) requested rehearing of FERC’s February 3, 2017 Delegation Order (“Delegation Order”). In the filing, the WPA asserted that the Delegation Order exceeds FERC’s statutory authority because it purports to authorize agency staff members to take action that would not be possible for FERC itself to take due to the current lack of quorum. This deficiency, WPA argued, can only be cured through the appointment of new Commissioners.
FERC issued its Delegation Order to assign certain tasks to FERC staff members in anticipation of now-former Commissioner Bay’s departure from the Commission and the imminent loss of the three-Commissioner quorum necessary for the Commission to vote (see February 21, 2017 edition of the WER). Through the Delegation Order, FERC staff has been given the authority to accept and suspend filings submitted under certain provisions of the Natural Gas Act, Federal Power Act, and Interstate Commerce Act. The Delegation Order has also granted FERC staff the authority to extend the time for action on matters where such extensions are statutorily permissible; to take appropriate action on filings seeking waivers of the terms and conditions of tariffs, rate schedules, and service agreements; and to accept uncontested settlements. The Delegation Order states that the staff’s delegations will remain effective until the Commission regains a quorum and lifts the delegations, but in no event, will the delegations extend beyond 14 days after a quorum is reestablished.
In its request for rehearing, WPA argued that the Delegation Order impermissibly grants powers to FERC staff that are greater than those conferred to the Commission itself by Congress. In essence, WPA argued that “when the Commission cannot act due to a lack of quorum, it follows that the Staff cannot act in the Commission’s stead under such circumstances, and the attempt of the Delegation order to cure this deficiency is ultra vires and ineffective.” The only way for the Commission to carry out its regulatory duties, according to WPA, is through the appointment of additional Commissioners.
WPA’s request for rehearing can be found here.