One of President-elect Donald Trump’s early campaign promises was to assert White House control over independent agencies.
“I will bring the independent regulatory agencies, such as the FCC and the FTC, back under presidential authority as the Constitution demands,” Trump said in April 2023. “These agencies do not get to become a fourth branch of government, issuing rules and edicts all by themselves.”
“We will require that they submit any regulations they are considering for White House review,” Trump said.
The five-member Federal Energy Regulatory Commission is one of the vaunted independent agencies that could be a mark for Trump’s White House team. If Trump is taken at his word, FERC could be handled in a way that pierces its patina of stable nonpartisan oversight over gas and power markets — as electric grids expand and forecasts for energy demand spiral upward through the end of the decade.
While the past may not tell us a lot about the future, efforts in the first Trump administration to reverse the tide of coal and nuclear plant closures could offer clues about what’s ahead. And the way that played out underscores FERC’s fierce independence.
Since it created regional power markets a quarter-century ago, FERC has been seen as a bulwark in America’s fragmented power system, even as it draws on vastly different policy priorities each time a new president is elected and political control swings.
“FERC has been a beacon of stability in an otherwise volatile regulatory landscape,” said Neil Chatterjee, a former Trump-appointed FERC chair. “Did the commission go in a different direction under my leadership than under my predecessor’s administration? Sure, but it wasn’t a dramatically different direction.”
FERC Chair Willie Phillips in late November said he had no comment on the president’s authority to review FERC orders. He also discouraged any future effort to cut, restructure or weaken the agency.
“If any administration is interested in moving forward energy independence for Americans, if you’re interested in projects — whether that be natural gas projects or clean and renewable energy projects — the Federal Energy Regulatory Commission is an agency that you would want to strengthen,” he told reporters after its latest open meeting.
POLITICO’s E&E News talked with former FERC members and chairs and legal experts eagerly watching Trump’s second-term approach to the commission, along with the array of independent agencies that regulate corporations and complex industries.
Here are some of what Trump could do to influence FERC:
Appointing the chair
The first thing a president can do is appoint a chair. That person can hire and fire staff, and he or she sets priorities at the commission.
Trump will almost certainly take the chair from Phillips, a Biden appointee, and hand it to a Republican. The two Republicans on the commission, Mark Christie and Lindsay See, could be in line to take his place.
There’s nothing to suggest Christie or See would give up the long FERC tradition of remaining independent from White House direction — either on specific regulatory matters or staff appointments.
Still, Joe Kelliher, a FERC chair during the George W. Bush administration, noted that while FERC is independent by law, “the chairman of the agency can choose to surrender their independence.”
While that’s unheard of in modern times, Kelliher says there is an example of it with former President Lyndon Johnson and FERC’s predecessor, the Federal Power Commission.
“Johnson was very comfortable calling that chairman and telling him how to vote on a particular merger. So President Johnson didn’t respect the independence of independent commissions,” Kelliher said.
Former FERC Chair Richard Glick had regular meetings with climate advisers in the Biden White House, according to The Wall Street Journal.
In 2018, Energy Secretary Rick Perry was heavily criticized for sending a proposal to FERC — almost certainly with the knowledge of the White House — that would have upended competitive power markets to save coal plants.
Perry called on FERC to take “urgent action” to change federal rules to create a cost-recovery mechanism for plants that stockpiled coal and nuclear fuel. Perry said it was to boost the resilience of the electric grid. At the time, coal and nuclear generation were losing out to cheaper natural gas and renewable energy. Perry’s plan, in effect, directed power markets to pay extra to keep those plants open, even if they weren’t running.
Critics slammed Perry for pushing a flawed plan and infringing on FERC’s autonomy. Its then-Republican chair, Kevin McIntyre, joined the rest of the commission in rejecting the proposal. The commission ruled that the legal standard for upending power markets hadn’t been met.
To Chatterjee, that authority to appoint the chair at will and fill vacant commissioner seats is where White House control should stop.
“The president has significant ability to influence work and personnel decisions on who he taps as chair, on who he puts on the commission,” Chatterjee said. “And to me, that’s the more important part.”
Putting too heavy of a partisan thumb on the scale at FERC risks a total reversal of policy down the line. “If you have another administration that wants to take policy in a totally different direction, then you’ve suddenly turned FERC into a volatile agency,” he said.
All of that being said, FERC has looked more partisan and more divided in recent years. That’s a reflection of the times and what’s become more contentious.
The commission permits interstate natural gas pipelines. It permits liquefied natural gas import and export terminals. The carbon emissions from gas is now a front-burner issue for climate policy advocates, bringing fiery politics to FERC’s front door.
The U.S. electric grid is also expanding after decades of flat growth. FERC used its Democratic majority in May to reassert itself over regional grid planning in its landmark Order 1920. At the time, the sole Republican commissioner, Christie, issued a blistering dissent. The new long-term planning process sidelined states, he and other critics said.
Other opponents asserted the commission intended to spur costly long-distance transmission projects for the sole purpose of delivering wind and solar power to left-leaning states. Trump’s political allies attacked Order 1920.
Last month, FERC deflected some of the political heat around Order 1920 by boosting the role of states and securing bipartisan support on the commission, including from Christie.
In creating the commission, Congress meant to keep it from being swept up by politics.
Emily Hammond, an energy and administrative law professor at George Washington University, noted that Congress gave commissioners staggered terms. They can never have more than a bare majority of a single party.
“The purpose of doing that is to insulate the agency from some of the political winds that can flow so strong in D.C.,” Hammond said.
White House review of FERC rules
Trump might be able to carry out his campaign promise and subject regulations to White House review, though it would likely require support in Congress.
Tom Pyle, president of the American Energy Alliance who helped run Trump’s first energy transition team, thinks the idea has some merit.
FERC already responds to political influence, Pyle said, so why not make it transparent.
“I don’t know that it would be necessary to have that level of overlay with FERC and these other independent commissions, but it’s worth discussing,” Pyle said.
But Kelliher, the former chair under Bush, says the White House couldn’t impose review of FERC rules.
“If the new president were to issue an executive order asserting control, that executive order would have no more force in an independent commission than any other presidential executive order,” Kelliher said.
Some think such a plan might be able to avoid approval from Congress, especially if a friendly judiciary heard any challenges.
Hammond at George Washington University, who previously served as a deputy general counsel in President Joe Biden’s Department of Energy, called the legality of White House review of FERC orders “unclear.”
“It’s certainly an approach that would be counter to the design of the independent agencies,” Hammond said.
“All of the presidents that have carried out this idea of centralized review going back to President [Ronald] Reagan have avoided bringing independent agencies into that review process,” Hammond continued. “I’m certain that this is something that the Trump administration is exploring, and it could be quite challenging to actually implement it.”
E&E News reached out to the offices of Republican members of the Senate Energy and Natural Resources Committee on whether there would be support for Trump White House reviews of FERC orders and staffing. All of them either did not respond or said they had no comment.
Firing commissioners
Coming into office, Trump will have a 3-2 Democrat majority on FERC, and the most senior Democrat, Phillips, has his seat through 2026.
While the president can, and almost certainly will, pass the chairmanship to a Republican commissioner, Democrats would still have the majority, unless one of them resigned — or Trump fired them.
“It is an open question whether the future President Trump would try to do that,” Hammond said.
The law that created FERC states that the president can remove commissioners “only for inefficiency, neglect of duty, or malfeasance in office.”
The Supreme Court has upheld that standard — most famously in Humphrey’s Executor v. United States.
But there are some wrinkles.
One is how long it would take to litigate a possible improper firing.
In Humphrey’s Executor, for example, William Humphrey of the FTC was fired by then-President Franklin Roosevelt in 1933, but it took the Supreme Court two years to rule that the firing was improper. By that time, Humphrey had passed away. The court awarded his estate damages, but his replacement was allowed to stay on the FTC.
Yet Kelliher points out that Humphrey’s Executor occurred in the early years of independent agencies. With nearly a century of legal development since then, Kelliher believes a modern court would act swiftly.
“If the president would just say, ‘Because you disagree with me, I’m firing you for cause because it’s malfeasance to disagree with the president,’ it would not be difficult for a court to impose a stay on the president’s decision, and I think the commissioner in question would not vacate his or her office,” Kelliher said.
Another question is whether today’s Supreme Court could modify the standard for removing a commissioner or even reject the concept of independent agencies.
Hammond notes that Justice Brett Kavanaugh has been particularly skeptical of Humphrey’s Executor, though he said it should not be overturned.
“The theory there is that the president should have very strong control over all agencies,” Hammond continued. “It’s a very real possibility that there are judges and justices who would strike back at the constitutionality of independent agencies.”
Defunding FERC
A tried-and-true method for defanging agencies in Washington is throttling funds.
“FERC is self-funding, but there is an appropriations process that goes through Congress,” said Mark Templeton, an associate professor at the University of Chicago Law School.
Hammond notes that with a Republican Congress, Trump could use the budget to shape the agency.
“We could expect to see things like the Office of Public Participation being dramatically underfunded, which would be a real blow to FERC’s efforts under the Biden administration to enhance environmental justice considerations,” Hammond said.
FERC’s Office of Public Participation was established in 2021 to help members of the public engage in the commission’s often highly technical proceedings. Congress funded the office as part of bipartisan 2020 appropriations.
It’s unclear what Trump’s team thinks of the office, but Chatterjee said he told the incoming administration which FERC offices they “could squeeze from.” Chatterjee declined to specify which ones he identified.
Staff-level moves
When he was last in office, Trump launched a late-stage attempt to reshape the civil service. In October 2020, he signed an executive order creating Schedule F, a new class of career employees who could be fired more easily.
Biden rescinded the order before it could be tested, but a returning Trump is likely to have a second bite at the apple.
And few corners of government stand to be changed more by such a change at FERC.
“FERC, because it’s a technical agency, doesn’t have a lot of political appointees in key leadership positions,” Hammond said. “We could see some of these positions being reclassified as political positions. If that were to happen, then there would be people within FERC who could be fired at will.”
Historically, presidents have sought Senate agreement to reclassify agency positions, but the question of whether that’s required is unsettled.
Congress gives FERC the authority to appoint its “officers and employees as are necessary in the execution of its functions,” indicating they serve at the pleasure of the commission, not the president.
But which officers are “necessary”?
“Where there’s statutory creation of a position or an office, that is pretty locked in,” said Templeton of the University of Chicago. That would include at least a few director-level positions: the secretary, general counsel and executive director.
“The extent to which the other functions could be curtailed” is an “open question,” Templeton said.
