On March 27, 2019, the Federal Energy Regulatory Commission (“FERC”) issued a trio of declaratory orders responding to uncontested Petitions for Declaratory Order (“PDOs”) that sought regulatory certainty for three distinct crude oil pipeline projects with contract commitments. The decisions, which governed filings made by Enterprise Crude Pipeline LLC (“Enterprise”) (Docket No. OR18-27-000), EnLink Crude Pipeline, LLC (“EnLink”) (Docket No. OR18-38-000), and EnLink Delaware Crude Pipeline, LLC (“EnLink Delaware”) (Docket No. OR19-3-000), consisted of one denial (Enterprise) and two approvals with conditions (EnLink and EnLink Delaware). Together, these three decisions suggest a notable departure from FERC’s prior declaratory order precedent, which had tended to approve uncontested PDOs without conditions. When coupled with another three declaratory orders issued on March 11, 2019, FERC’s latest round of declaratory orders indicates a trend towards greater scrutiny of pipeline projects regulated under the Interstate Commerce Act (“ICA”).
In Lucia v. Securities and Exchange Commission, the Supreme Court held 7-2 that Securities and Exchange Commission (“SEC”) administrative law judges (“ALJs”) are “officers of the United States” subject to the Constitution’s appointments clause, rather than employees. The June 21, 2018 opinion for the Court was by Justice Kagan, and has implications for ALJs at the Federal Energy Regulatory Commission (“FERC”). (more…)