Dear Secretary Bose:
The U.S. Chamber of Commerce’s Global Energy Institute (“the Chamber”) welcomes the opportunity to comment on the Federal Energy Regulatory Commission’s (“FERC’s” or “the Commission’s”) Notice of Proposed Rulemaking titled “Duty of Candor” in Docket No. RM22-20-000 issued on July 28, 2022.[1] The Chamber is concerned that FERC’s proposal is beyond the agency’s authority, is unnecessary to address any real problem, and ultimately would undermine the broad stakeholder participation that FERC needs and relies upon in the exercise of its regulatory mission.
The Chamber and its members have a substantial interest in the lawful and appropriate exercise of FERC’s rulemaking powers, which can help energy markets function fairly and effectively. While the Chamber believes the proposed rule expresses a noble aim,[2] it does so in a way that would exceed FERC’s statutory authority, violate the Administrative Procedure Act (“APA”), and raise serious constitutional questions. The notion that FERC can police the veracity of statements made not just to the Commission itself, but also to nearly any wholesale energy market participant, cannot be found in any statutory grant of authority. Congress has carefully delimited agency authority to enforce duties of candor on regulated entities and individuals, but the rule would upset that balance.
