On September 28, 2018, President Donald Trump signed into law Public Law No: 115-247, amending Federal Power Act (“FPA”) section 203 to add a $10 million threshold for public utility mergers and acquisitions requiring FERC approval.  The new law will also require FERC to (i) issue a rule to require any public utility to notify FERC, after 30 days of the close of the transaction, if the value of the merger is more than $1 million but less than $10 million and (ii) submit a report to Congress assessing the impacts of the new law.  The amendments to FPA section 203 will become effective on March 27, 2019. 

On October 1, 2018, FERC released its Strategic Plan for fiscal years 2018-2022.  FERC affirmed its mission of maintaining reliable, efficient, and sustainable energy for consumers by setting three primary goals: (1) ensuring that rates, terms, and conditions are just, reasonable, and not unduly discriminatory or preferential; (2) promoting the development of safe, reliable, and efficient energy infrastructure that serves the public interest through the review of natural gas and hydropower infrastructure proposals; and (3) managing resourcing to support its mission through organizational excellence.

On October 3, 3018, President Donald Trump announced his intent to nominate Bernard L. McNamee to fill the vacant seat on FERC, for the term expiring June 30, 2020, resulting from Commissioner Robert Powelson’s resignation. If nominated, confirmed, and sworn in, Mr. McNamee would restore the Republican majority among FERC Commissioners.

On September 4, 2018, the U.S. Senate passed, by voice vote, two bills related to FERC’s authority under the Federal Power Act (“FPA”).  One bill, S. 186, would allow challenges to rate changes that would automatically go into effect when FERC is deadlocked.  The other bill, H.R. 1109, changes the monetary thresholds for determining when a proposed merger or acquisition requires FERC approval.

FERC Commissioner Robert Powelson announced Thursday, June 28, 2018, that he plans to resign from FERC in mid-August 2018 to become president and CEO of the National Association of Water Companies, a trade group for the private water industry.

On June 21, 2018, the Supreme Court of the United States (“Supreme Court”) held that the U.S. Securities Exchange Commission’s (“SEC”) Administrative Law Judges (“ALJs”) are “Officers of the United States” whose appointment must meet the requirements of the Constitution’s Appointments Clause.  Accordingly, pursuant to the Appointments Clause, the SEC ALJs must be appointed by the SEC itself, as the “Head of the Department.”  It is unclear whether this impacts any of the current ALJs at FERC. 

On June 12, 2018, the Senate Energy and Natural Resources Committee hosted all five FERC Commissioners for an oversight hearing to discuss topics that included the agency’s approach to changes in the makeup of generating plants on the bulk power system and the efficiency of its energy infrastructure permitting processes.

On March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied Duke Energy Carolinas, LLC’s (“Duke Energy”) petition for review of FERC’s grant of a forty-year license for the Catawba-Wateree Project (“Project”).  FERC had found that, despite Duke Energy’s requested fifty-year term for the license renewal, the measures required by FERC in issuing the license were only “moderate,” and thus warranted the forty-year term.  Duke Energy argued that FERC acted arbitrarily and capriciously by not granting the fifty-year license.  The D.C. Circuit deferred to FERC’s analysis in granting a forty-year license.