Hope for the Best But Plan For the Worst — Commissioner Nominee Status

We’ve been getting a lot of questions about the new nominees for appointment to FERC. Where are they in the Senate confirmation process? How does that process work and how long does it take? What are the potential implications of confirmation delays amidst the looming risk of quorum loss?

Stakeholders across the natural gas and electric industries need to understand the complexities of the confirmation process. The absence of confirmed commissioners at FERC not only jeopardizes regulatory decision-making but also threatens ongoing projects and industry initiatives.

Based on historical data, we expect the three new nominees to be confirmed by the middle of June, and take office by July 1, so that FERC will not suffer from a loss of quorum. But under a worst case scenario, 8.61 billion cubic feet per day (bcf/d) are at risk of delay if quorum is lost.

Where We Are in the Process + Risk Assessment

We discussed the new nominees in our Quarterly Commission Lookback & Commissioner Candidate Profiles, but for a quick review, the candidates are Judy W. Chang, David Rosner, and Lindsay S. See, and the terms they would assume would end in 2027, 2028, and 2029, respectively. Either Chang or Rosner would likely succeed Democratic Commissioner Allison Clements, and See, who was nominated by Senate Minority Leader Mitch McConnell, would take the Republican nomination.

For FERC to maintain quorum, at least one would have to take office by the time Commissioner Clements departs. Her term officially ends on June 30, 2024 but she can depart any time. She can also stay until her replacement takes office or the end of this year, whichever occurs first. Given her announcement of her intention to depart, we think it unlikely that Commissioner Clements would stay beyond her term, so for risk assessment purposes, we are considering June 30, 2024 as a hard deadline, 53 days from now or just over a month and a half.

As we discussed in Change Is in the Air at FERC, the time from when a nominee is first sent to the Senate until that nominee takes office is typically about four months. That clock started ticking for our three nominees on 2/29/2024 (69 days ago), when the nominations were received in the Senate and referred to the Committee on Energy and Natural Resources (ENR Committee). Then, the ENR Committee held hearings on 03/21/2024.

Next up, assuming all goes well for the nominees, the ENR Committee will take a series of actions, likely all on the same day. First there would be an order that nominees be “reported favorably” followed by a senator “reporting out” the nominees, resulting in the nominees being placed on the Senate Executive Calendar for consideration. The final two steps would also occur on the same day and include the actual Senate meetings to consider the nominees and the final voice vote.

For a recent benchmark, the time from committee referral to calendar scheduling for Commissioner Clements was about two months, then another 12 days for confirmation. For Chairman Phillips, it was a quicker one month and 14 days, respectively. Given that there is still over two months before Commissioner Clements’s term expires, we think Senate confirmation will likely happen before then, likely in mid June.

Regarding testimony thus far, the most telling parts at the previous hearing came in response to questions from Ranking Member John Barrasso (R-WY), who asked Chang if she would support additional natural gas pipeline infrastructure in New England. Chang affirmed she would, emphasizing the importance of reliable and affordable energy services. Barrasso also pressed for assurance of prompt action on LNG project approvals, and all three nominees expressed readiness to work on the topic, with See drawing a distinction between DOE’s LNG pause and FERC’s statutory responsibilities.

Senator Bill Cassidy (R-LA) also questioned Chang and Rosner about FERC’s authority to consider greenhouse gas (GHG) emissions in its reviews. Chang clarified that her understanding of the Natural Gas Act (NGA) was that it “does not designate GHG emissions as criteria for denying gas projects.” When asked if this means they wouldn't vote to deny a project based on emissions, both Chang and Rosner emphasized adhering to existing law. An easier answer would have been “no,” but their answer was not surprising either.

While they are both correct that the NGA does not include GHG emissions as criteria for project denial, what was specifically left unsaid was that the public interest analysis that is baked into FERC’s certificate policy statement — under which the Commission outlines its analytical approach for approving pipelines — involves balancing a number of factors including a proposal's market support, economic, operational, and competitive benefits, and environmental impact. So while not specifically enumerated, Chang and Rosner could still technically weigh GHG emissions as a part of the environmental impacts and economic analysis by using the Social Cost of GHG tool, which monetizes GHG emissions.

While Republican senators would have undoubtedly preferred more concrete assurances with respect to GHG analysis, they likely did not expect to get them. And considering the cost of delaying projects due to lack of quorum, the responses given are not likely to rise to the level of voting against these two candidates.

What Projects Are at Risk?

Out of an abundance of caution, and considering Congressional infighting of late, it’s a good idea to hope for the best but plan for the worst. So, in the event that Congress can’t get their act together for some reasons, the projects at risk of delay include CP2, Bison XPress, and Holbrook, collectively representing 8.61 bcf/d.

If you would like more data on the timelines for nominations, please contact us.