Laura Swett and David LaCerte took questions on FERC’s independence during their confirmation hearing before the Senate Energy and Natural Resources Committee as the country debates how much control the president should have over the federal bureaucracy.
Swett and LaCerte were nominated by President Donald Trump to replace former Chair Mark Christie and former Commissioner Willie Phillips. Trump has asserted broad authority over the entire executive branch, including independent agencies such as FERC and the Federal Reserve. (See FERC’s Independence Likely Coming to an End with Christie’s Exit.) Trump’s attempts to fire several agency officials have set off numerous legal battles.
Committee Chair Mike Lee (R-Utah) said at the Sept. 4 hearing that the confirmation process will allow senators to hear about how the two “view the ongoing legal debate about the status of so-called ‘independent agencies’ and what that means for accountability to the law and to the American people.”
Lee said he’s skeptical of the concept of agency independence and has made it clear he would welcome the Supreme Court overturning Humphrey’s Executor v. United States, the 1935 case in which the court found that it was constitutional for Congress to pass laws limiting the president’s ability to fire members of independent agencies.
Democrats on the committee were much more critical of the possible change.
“The commission was designed to serve no president, no political party and no political agendas,” Ranking Member Martin Heinrich (D-N.M.) said. “Its job is to serve the public interest fairly and impartially, guided by our laws and the Constitution, not by political whims from the White House. The independence of our independent public institutions, from the Federal Reserve to the Smithsonian Institution, is under attack by this administration, and destroying the independence of the Federal Energy Regulatory Commission would do irreparable damage to public confidence in the commission’s decision-making, to regulatory stability and to our energy security.”
So far, the Trump administration has tried to control other independent agencies more than FERC, but it was widely reported that the administration pressured Phillips to resign earlier this year, which he did. (See Commissioner Willie Phillips Announces his Resignation from FERC.)
“If I have the honor of being confirmed, I will do everything in my power to honor the law and the facts of every single matter before me squarely within the confines of the laws that you, Congress, granted FERC,” said Swett, an energy attorney at Vinson & Elkins. Many FERC watchers expect her to be named chair upon her confirmation.
Swett listed three goals for her tenure on FERC: maintaining reliability; meeting the rising demand from artificial intelligence and data centers to ensure the U.S. leads on that technology; and maximizing the commission’s ability to facilitate infrastructure development.
Swett has been a staffer at FERC and has litigated before the commission, but LaCerte has little experience with the agency — though he has worked on independent regulatory agencies and is familiar with issues surrounding LNG.
“I think my background, especially as a government executive, and my experience as an environmental attorney provide strong qualifications and a fresh perspective on these issues challenging the FERC,” said LaCerte, a senior adviser to the director of the Office of Personnel Management. “The outstanding career staff cannot do this alone; as the committee has noted, FERC is most functional with a fully seated board of complementary commissioners prepared to work together, along with stakeholders.”
Lee asked LaCerte how his background prepares him for a role on the commission when he has comparatively little experience as an economic regulator of electricity and natural gas.
“I think that the most important qualification I have is that I can bring a common-sense approach to get problems solved,” LaCerte answered. “And I’ve proven that to the president of the United States. I have an outstanding set of experiences in safety, in cyber and in a multitude of issues that can help FERC.”
When asked later on about his qualifications, LaCerte argued the fact he has never litigated before FERC could be viewed as a positive, because “regulatory capture” is a legitimate concern.
Lee then asked the nominees for their views on Humphrey’s Executor. Both said they would follow the law.
“And of course, I will follow the law and honor the law in everything that I do and consider the merits of every single issue of law and the facts before me, irrespective of where the litigation comes out and the length of my term,” Swett said.
Heinrich brought up the Trump administration’s executive order seeking to review major decisions at independent agencies and asked why maintaining FERC independence is “critical.” (See Trump Claims Authority over Independent Agencies in Executive Order.)
Congress created the modern iteration of FERC with the Department of Energy Organization Act, which calls for its independence and provides that none of its work is reviewable by anyone at the department, Swett said.
“And thus, as a lawyer who has been practicing FERC law for 15 years, I will always go back to the statute, and that is exactly what Congress directed, and I will not exceed that jurisdiction,” she added.
The Administrative Procedure Act (APA) also governs how FERC works, and Sen. Catherine Cortez Masto (D-Nev.) argued that nothing in the law allows for the White House to review decisions from independent agencies.
“There’s no requirement by the president to review anything that we have set laws for a regulatory agency to do, but that’s what he has put in this executive order, and that’s my concern,” Cortez Masto said.
Ultimately, Cortez Masto noted the issue of the legality of independent agencies is before the courts. Before gaveling the hearing to a close, Lee noted that the APA also does not specifically bar White House review of agency decisions.

