In 1997, as a commissioner at the Federal Energy Regulatory Commission (FERC), Brunini attorney Curt Hébert, Jr., who later served as chair of the commission, dissented from the agency’s decision involving the Edwards Dam in Maine.
The dam was the first operating hydroelectric facility in the country ordered by FERC to be dismantled. FERC’s decision marked a monumental shift in national energy and environmental policy, granting itself the authority to deny relicensing and order the removal of a project based primarily on environmental considerations. Nothing in Part 1 of the Federal Power Act directly gave FERC authority to order the licensee to remove a dam that is part of a federally licensed project. Instead, in the Edwards case, FERC arrogated to itself the authority to do so.
As recently noted by Real Clear Energy, Hebert’s concern at the time stretched beyond the dam to the much more fundamental risk of allowing an independent agency like FERC to move beyond faithfully implementing the authority expressly delegated to it by Congress toward making policy of its own.
“Hebert warned against allowing FERC to move beyond faithfully implementing the policies enacted by Congress and toward making policy of its own. His dissent reflected a broader constitutional concern that independent agencies derive their legitimacy from carrying out the law—not from exercising independent political authority. The basis of his dissent should now be reexamined.”
Well, nearly three decades later, the Supreme Court of the United States has signaled that it agrees, echoing the concerns he raised.
The court’s recent decision in Trump v. Slaughter marks a significant shift in administrative law by holding that officials who exercise substantial executive authority must remain accountable to the President through the power of removal.
In reaching that conclusion, the Supreme Court overturned Humphrey’s Executor, ending a nearly 100-year-old precedent that Congress could broadly insulate leaders of independent agencies from presidential control.
While the case focused on the Federal Trade Commission (FTC), its reasoning raises important constitutional questions for other independent agencies, including FERC. Because FERC also writes regulations, investigates potential violations, and enforces federal law, its traditional independence may now face increased scrutiny.
What does this mean for the energy industry?
Trump v. Slaughter could give the President greater influence over regulatory priorities, leading to faster shifts in energy policy across administrations and renewed debate over the proper balance between agency independence and democratic accountability.
- Greater Regulatory Volatility
Changes in agency leadership could lead to more rapid shifts in enforcement, rulemaking, and regulatory priorities, making it more difficult for companies to predict the long-term regulatory landscape. - Increased Infrastructure and Investment Uncertainty
Permitting priorities, transmission planning, electricity market rules, and other FERC initiatives could change more quickly, creating additional uncertainty for long-term investments in pipelines, LNG facilities, renewable energy, and grid infrastructure. - More Constitutional Challenges
The decision is likely to generate litigation over the structure and authority of independent agencies, including whether FERC’s traditional independence can withstand constitutional scrutiny. - Expanded Executive Influence
Energy policy, including domestic production, renewable energy, grid reliability, and environmental initiatives, may become more closely aligned with each administration’s priorities. - Heightened Regulatory Scrutiny
Energy companies should closely monitor legal and regulatory developments as agencies and courts determine how broadly Trump v. Slaughter applies beyond the FTC.
The greatest impact may not be any single regulatory change, but the increased likelihood that the regulatory environment will shift more quickly, and potentially more dramatically, with each change in presidential administration.
What should energy companies do?
- Monitor Regulatory Developments Closely
Stay informed about changes in agency leadership, litigation, and rulemaking that could affect operations, permitting, and compliance. - Build Flexibility into Planning
Major infrastructure and capital projects should account for the possibility of shifting regulatory priorities over their lifecycle. - Evaluate Regulatory and Litigation Risk
Assess how evolving agency authority and potential constitutional challenges could impact permitting, enforcement actions, and strategic initiatives.
As courts define the reach of Trump v. Slaughter, we are here to help navigate regulatory changes and identify opportunities or risks.
Brunini’s Regulatory practice spans environmental, energy, telecommunications, public utility, and eminent domain law.