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“The revisions to 216(b) would allow FERC to override a state denial or approve a project where a state has failed to make a timely decision on the permit application,” Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said in an email.

“As FERC may consider the scope of its rules mandating competitive transmission development, I’ll be interested to see if the [executive order] plays any role,” Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said in an email.

The legal arguments could be dividing conservative justices on the court, making it difficult to proceed to oral arguments, according to Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. Following the lead of former Associate Justice Antonin Scalia, Associate Justice Clarence Thomas has rarely been willing to recognize the legitimacy of the Dormant Commerce Clause, and newly confirmed Associate Justice Amy Coney Barrett may feel similarly.

While FERC controls its own agenda, it also has to respond to filings made by regulated parties like utilities and other key players such as environmental organizations, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School.

Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative, said that “regardless of whether Congress passes clean energy legislation, the Democratic-led FERC should choose to wield its authority to support a clean energy agenda.” He asserted that FERC had broad discretion to do so given that it operates under flexible legal standards and already has transmission oversight and market regulation authorities.

In the meantime, observers should not expect Danly to initiate proactive rulemakings in the same way FERC did for energy storage and distributed energy resources following the 2016 election, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School.