How the Supreme Court could undercut FERC independence

The loss of independent tenure could also politicize the appointment process, warned Kent Chandler, a fellow at the R Street Institute and former chair of Kentucky’s utility regulator.

“Future nominees to FERC will likely be evaluated not just on qualifications but on their perceived loyalty to the administration,” he said. “That adds a layer of risk where commissioners may do their job with fear or favor — something entirely at odds with Congress’ intent in creating independent commissions…”

If the court does strike down or weaken the independence of certain agencies, Chandler doesn’t expect Congress to sit idly by as the institutions it made get overhauled.

“I find it hard to believe that over the next few years, we’ll end up in a place where the president can fire independent commissioners at will without congressional intervention,” he said. “Even if it’s only through the confirmation process, I expect lawmakers will push back to preserve agency independence…”

“FERC’s core job, today and historically, is ratemaking, which is legislative in nature,” Chandler said. “Further, FERC has routinely consisted of subject matter experts who improve in their duties based on the experience they gain in their respective positions. I can’t think of an agency that more encapsulates the tenets of Humphrey’s Executor…”

But the implications go beyond internal decision-making and into the public arena, Chandler with R Street said.

“Any executive in the country would be crazy to want to change the paradigm from an independent agency setting rates to giving even the appearance that they dictate the agency’s actions,” Chandler said. “One of the primary jobs of FERC is to set wholesale rates, and if commissioners can be fired at will, then every time a rate hike happens, people will blame the president.”

Chandler emphasized that this perception — even if not backed by reality — could be politically damaging and destabilize trust in regulatory outcomes.

“Appearance is all that matters,” he said. “That’s a terrible scenario for individual consumers and for the American economy.”