President Donald Trump on Feb. 18 issued an executive order that seeks to bring independent regulatory agencies like FERC under greater White House control. 

Trump said in “Ensuring Accountability for All Agencies” that “so-called” independent agencies’ minimal supervision from the elected president goes against the Constitution, and they “shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA)” before they can be published in the Federal Register. 

It is unclear how much of an impact this, or any of Trump’s executive orders that stretch the interpretation of existing laws, are going to have on FERC. Established in 1980, OIRA reviews the regulations from cabinet agencies like EPA or the Department of Energy, but historically, it has exempted independent agencies’ decisions from substantive review, according to a report from the Congressional Research Service. 

Regardless of its actual effects, the executive order in and of itself is “an unprecedented effort” to curtail the independence of regulatory agencies, Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative, said in an interview. 

“It depends on what the administration thinks it’s going to do here: whether it’s going to dictate policy, which is not quite possible for FERC since it still has a majority of Democratic commissioners; whether the administration is going to take it even further and continue firing commissioners and independent agencies, as it already did for the” National Labor Relations Board, Peskoe said. “So again, it’s just a lot of questions.” 

“My biggest fear is if the Supreme Court makes this broad determination about the separation of powers and Congress’ ability to set up independent agencies, because that would last forever, or at least until a future Supreme Court changed that, which usually takes decades to happen,” Grid Strategies President Rob Gramlich said. “So, unlike a lot of other changes right now that might last four years, that would do damage forever. And we really need independent regulatory agencies to have regulatory certainty and investor certainty about how to do business in electric power.” 

“Capital-intensive business models require a degree of certainty that independent agencies bring,” former FERC and Pennsylvania Public Utility Commissioner Nora Mead Brownell said. “When I became a PUC commissioner, I realized how critical it is for those kinds of agencies to truly be independent and base their decisions on the facts.” 

Moving away from that kind of independence, where decisions are based on a public record that lays out the facts and follows legal precedent, will at least make infrastructure investments more expensive, she said. “Why would you want to invest in something that is so subject to the whims of a leader who does not actually have a basic understanding of the economy?” 

Project 2025, which was authored by Trump appointees including Office of Management and Budget Director Russell Vought and Federal Communications Commission Chair Brendan Carr, has a section on independent agencies calling them “constitutionally problematic” using the same logic in the executive order. But it focuses more on the higher-profile agencies like the FCC and Securities and Exchange Commission. 

FERC is rolled into the same chapter as the Department of Energy, which was written by former Commissioner Bernard McNamee, nominated by Trump in his first term. It calls for FERC to refocus on reliability and affordability, with more specific suggestions including ensuring “sufficient dispatchable on-demand generation” and reforming RTO markets to pay such generators “reliability pricing.” (See Plan for GOP President: Cut Climate Programs, ‘Re-examine’ RTOs.) 

While Project 2025 and Trump’s executive order are based on the logic that independent agencies are not democratically accountable because of the president’s limited oversight, Peskoe pointed out that they combine functions from across all three branches. 

“They are somewhat legislative, somewhat executive and somewhat judicial, that they sort of combine all three aspects, and that’s what kind of makes these agencies unique in our government,” Peskoe said. 

Congress would be well within its powers to set rates for utilities in interstate commerce, but it just lacks the bandwidth to do that, so it created FERC to handle those issues, he continued. 

“These types of agencies have been around for a very long time,” Peskoe said. “They don’t really cite any particular problems with these agencies. It’s just this sort of constitutional accountability issue, which, again, hasn’t really come up in generations. So, it’s just a naked power grab by this administration.” 

The White House does get to influence FERC by picking commissioners and naming the chair. Brownell said President George W. Bush picked her and former Texas Public Utility Commission Chair Pat Wood, whom Bush appointed as chair of FERC, because both had pushed forward electric competition in their respective states, and the president wanted to expand its role at the wholesale level. 

Gramlich was a staffer for Wood, and he recalled visiting the White House — but not to take directions. 

“We’d be briefing them on what’s happening so they could understand the impacts and guide legislation, but they were never telling us what to do,” Gramlich said. 

Former FERC Chair Rich Glick, appointed by President Joe Biden, took some flack from The Wall Street Journal’s editorial page for meetings with the White House, but Gramlich said those were similar to what he and Wood did 20 years earlier. (See Glick Denies Taking Directions from Biden Admin.) 

“Even if a chairman wanted to take cues from the White House, that’s always been sort of up to them,” Gramlich said. “But this would be structural. I mean, you could have the White House essentially overturning and approving actions that don’t reflect the votes of the commission.” 

If the executive order is allowed to go into effect, and the courts wind up siding with the White House, some in the utility business might think of it as a win for a while, but politics change more quickly than the lifespan of much of the infrastructure FERC oversees, Brownell said. 

“You have four years of an administration with everybody and their brother tinkering in the business without understanding it, and you create an instability that is very dangerous, particularly at a time that we desperately need new infrastructure.”