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Power & Pipes

FERC, CFTC, and State Energy Law Developments

On July 11, 2011, President Barack Obama issued an Executive Order requesting independent regulatory agencies to produce plans to reassess and streamline their regulations. The July 11 Executive Order follows up on Executive Order 13563, issued on January 18, 2011, which directed executive agencies to produce a regulatory system that protects public health, welfare, safety, and the environment while promoting economic growth, innovation, competitiveness, and job creation. Executive Order 13563 set forth general requirements to executive agencies concerning public participation, integration and innovation, flexible approaches, and science.

The July 11 Executive Order states that independent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and should modify, streamline, expand, or repeal regulations in accordance with what has been learned. The Executive Order requested that independent regulatory agencies should develop and release, within 120 days, a plan for periodic review of its regulations, consistent with law and reflecting its resources and regulatory priorities and processes.

Also on July 11, 2011, the Federal Energy Regulatory Commission (FERC) issued a news release announcing that FERC will implement the President’s Executive Order. FERC Chairman Wellinghoff stated that “FERC welcomes the President’s new executive order for a more formal, public reassessment of our regulations and their effect on the economy.”

The concept of independent regulatory agencies, as distinct from other executive agencies, arose from the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Under federal statute, and for purposes of the two Executive Orders discussed above, an independent regulatory agency refers to the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, FERC, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, and any other similar agency designated By statute as a Federal independent regulatory agency or commission. See 44 U.S.C. § 3502(5).