Striking true or overreaching? How a new executive order clouds FERC’s decisional authority

As the White House sets new guidance for regulatory agencies, a new executive order brings fresh attention to states’ rights, executive power and the Federal Energy Regulatory Commission’s jurisdictional boundaries.

The Federal Power Act establishes a clear division: states oversee retail electricity services, while FERC oversees interstate transmission and wholesale electricity markets. The statute explicitly provides that federal jurisdiction “shall not extend to facilities used in local distribution,” nor may FERC regulate “any other sale of electric energy” beyond wholesale transactions.

Recent developments suggest that FERC is testing the limits of the authority Congress gave it. Multiple proceedings before the commission — including Order 1920, on long-term planning for regional transmission expansion and co-located load disputes — implicate longstanding jurisdictional limits that Congress has never disturbed. Executive Order 14215, which President Trump signed on Feb. 18, directs executive agencies to conform their legal interpretations to the views of the executive branch. While FERC is not directly bound by presidential directives in the same manner as executive agencies, the order’s broad language could be interpreted as pressuring independent commissions to align with the administration’s legal position.

Honoré de Balzac said “Power is not revealed by striking hard or often, but by striking true.” In some proceedings, the executive order could strike true and help keep FERC within its statutory authority. In other issues before the commission, the concern is that the order could lead to federal overreach.  

Executive authority and FERC’s regulatory role

Executive Order 14215 mandates that “the President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.” It prohibits agencies such as FERC from advancing legal interpretations that conflict with the president’s position: “no employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law.”

Several pending proceedings before FERC raise the question of whether emerging FERC decisions may be subject to the new executive order.