On January 4, 2021, Mark C. Christie was sworn in as FERC’s newest Commissioner. The Senate previously confirmed the nomination of Commissioner Christie, along with the nomination of now-current-Commissioner Allison Clements, in a late night voice vote on November 30, 2020 (see December 8, 2020 edition of the WER). With the swearing in of Commissioner Christie, FERC now has a full five-member Commission with three Republicans (Chairman Danly and Commissioners Chatterjee and Christie) and two Democrats (Commissioners Clements and Glick).
Continue Reading Mark C. Christie Sworn in as FERC Commissioner

On November 30, 2020, in a late night voice vote, the U.S. Senate confirmed the nominations of Mark Christie and Allison Clements as FERC Commissioners. Once they are sworn in as Commissioners, the bipartisan pairing will fill the remaining two seats on the five-member Commission, with Christie occupying the seat last held by former Commissioner Bernard McNamee for a term ending on June 30, 2025 and Clements occupying the seat last held by Commissioner Cheryl LaFleur for a term ending on June 30, 2024.
Continue Reading Senate Confirms Christie and Clements to Fill Remaining Commission Seats

On November 5, 2020, FERC approved Southern California Edison Company’s (“SoCal Edison”) request to utilize a May 2020 formula rate sales forecast rather than its April 2020 sales forecast, as required by Appendix IX of SoCal Edison’s Transmission Owner Tariff (“Tariff”). The updated sales forecast, which informs SoCal Edison’s wholesale and retail transmission rate-recovery and true-up calculations, reflects a decrease in sales revenues due to the COVID-19 pandemic. In a dissenting opinion, then-Commissioner James Danly opposed the waiver, citing previous criticisms that such FERC action violates the filed rate doctrine and the rule against retroactive ratemaking (see October 28, 2020 edition of the WER).
Continue Reading FERC Grants Formula Rate Tariff Waiver; Then-Commissioner Danly Reiterates Criticisms of Retroactivity

On November 5, 2020, President Donald Trump designated sitting FERC Commissioner James Danly to assume the Chairmanship of the Commission. Chairman Danly joined FERC as general counsel in 2017, and served as a Commissioner from March through November 2020. Chairman Danly replaces Neil Chatterjee in the role, who will remain a Commissioner. Commissioner Chatterjee’s term expires June 30, 2021.
Continue Reading Danly Named FERC Chairman

On October 16, 2020, FERC issued a number of orders at its open meeting that addressed unrelated requests for retroactive waiver of various Regional Transmission Organization and utility tariff provisions. Commissioner James Danly issued a separate statement in each proceeding. Commissioner Danly dissented from many of the orders granting waiver and concurred in the result when the orders dismissed the requests for waiver or granted waiver in certain specific circumstances. In his dissent from an order granting Sunflower Electric Power Cooperative’s (“Sunflower’s”) petition for waiver of certain Southwest Power Pool, Inc. Tariff provisions, Commissioner Danly stated his belief that FERC has no legal discretion to grant retroactive waivers unless the waivers meet certain well-defined exceptions: first, if the parties had notice that tariff provision could be waived retroactively, or second, if the tariff provision is embodied in a private contract between parties who have agreed in the contract to make the rate effective prior to filing the contract with the Commission.
Continue Reading Commissioner Danly Objects to FERC’s Continued Practice of Granting Retroactive Waivers

On September 17, 2020, at FERC’s Virtual Open Meeting, FERC Staff presented an overview of changes to its rehearing practices following the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) recent decision in Allegheny Defense Project v. FERC, 963 F.3d 1 (D.C. Cir. 2020) (en banc) (“Allegheny”), which rejected FERC’s practice of issuing “tolling orders” to grant itself more time to consider requests for rehearing (see July 1, 2020 issue of the WER). Staff explained that the changes to FERC’s rehearing practices are intended to allow appeals of FERC orders to proceed in a timely manner and on a complete administrative record. While the D.C. Circuit granted FERC’s motion to stay the court’s mandate in July (see July 29, 2020 edition of the WER), Staff explained in response to questions from FERC Chairman Neil Chatterjee that Staff expects the D.C. Circuit to issue its mandate in early October.
Continue Reading FERC Staff Clarifies Changes to Rehearing Practices Following Allegheny Decision

On September 16, 2020, the United States Senate Committee on Energy and Natural Resources (“Committee”) held a hearing to consider Allison Clements’ and Mark C. Christies’ pending FERC nominations as FERC Commissioners. Ms. Clements is slated to join the Commission for a term expiring June 24, 2024, and Mr. Christie is set to join for a term expiring June 30, 2025.

Continue Reading Senate Committee Holds Hearing to Consider Pending FERC Nominations

On July 23, 2020, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) granted FERC’s motion for a ninety-day stay of the court’s mandate in Allegheny Defense Project v. FERC. In Allegheny, the D.C. Circuit rejected FERC’s long-used practice of issuing “tolling orders” to grant itself more time to consider

On July 27, 2020, President Trump announced his intent to nominate Mark Christie (Republican) and Allison Clements (Democrat) to fill the vacant Commissioner seats at FERC. Mr. Christie would replace the departing Commissioner Bernard McNamee—whose term expired on June 30, 2020 but who stayed at FERC past the expiration of his term to maintain a quorum (see January 28, 2020 edition of the WER)—while Ms. Clements would fill the remaining vacant seat. If both nominees are sworn in, the Commission would consist of three Republicans (Chairman Neil Chatterjee, Commissioner James Danly, and Mr. Christie) and two Democrats (Commission Richard Glick and Ms. Clements).
Continue Reading President Trump Nominates Mark Christie and Allison Clements as FERC Commissioners