FERC Nomination votes set for tomorrow will not end lingering uncertainty

Source: Katherine Ling, E&E reporter • Posted: Monday, July 14, 2014

The Senate is scheduled to vote tomorrow on two nominees for the Federal Energy Regulatory Commission that, if approved, would finally fill the long-vacant fifth commissioner seat but would also leave many questions.

Under a delicate political deal with the White House, if confirmed, Norman Bay would start a four-year term as a FERC commissioner — filling a chair that has been empty for eight months — and Cheryl LaFleur would be approved for another five-year term on the commission. She has been acting chairwoman since the previous chairman, Jon Wellinghoff, stepped down last November.

The vote will be the culmination of a high-stakes and at times confusing political intrigue that unfolded over the past few months.

President Obama picked Bay earlier this year to not only be a commissioner but ascend to the role of chairman, which received a great deal of pushback — in particular from Sen. Lisa Murkowski (R-Alaska), ranking member of the Senate Energy and Natural Resources Committee, and Sen. Angus King (I-Maine). It also gave some Democrats pause, including Sen. Joe Manchin (D-W.Va.).

On the other side, Majority Leader Sen. Harry Reid (D-Nev.) favored Bay, who heads up FERC’s enforcement division, and said he did not support reconfirming LaFleur to lead the agency.

In response, Sen. Mary Landrieu (D-La.) and Manchin struck a deal with the White House to renominate and keep LaFleur as full chairwoman for nine months, after which Obama could name a different chairman. Last month, the committee approved Bay 12-9 — with Nevada Sen. Dean Heller as the lone Republican vote in support — and LaFleur 21-1 — with Sen. Bernie Sanders (I-Vt.) the only dissenting member.

And while the White House has given its word to keep the Landrieu-Manchin deal, the administration’s choice to head the independent agency does not require Senate approval: Only commissioners have to be confirmed. Murkowski and several other members are not confident about the Obama administration’s assurances.

“What deal?” Robert Dillon, a Murkowski spokesman, said in an interview with E&E Daily. Murkowski “is not a member or signatory of any deal,” he said.

The senator continues to have concerns about Bay’s “experience and fitness for office,” and his responses to her questions both in person and written form were “evasive and incomplete,” Dillon said.

Murkowski would also like to know why Reid has scheduled the vote on Bay’s and LaFleur’s nominations for tomorrow, he added.

“Reid is rushing Bay to confirmation in front of, like, 150 nominees out there pending,” Dillon said. “The question is why Reid is rushing Bay to confirmation. Is he trying to get that done before another shoe drops?”

Among the questions Murkowski and other members still have for which the nominee did not provide clear answers, Dillon said, are how transparent he was as head of FERC’s Office of Enforcement, issues surrounding an attempt to make him a permanent instead of a political appointee, and details about recusing himself in the future regarding 43 enforcement cases that he was involved in that may come before the commission.

Questions also remain on exactly how the deal will actually work, including the day-to-day function of the independent agency with a time-limited chairwoman or a chairman without much bipartisan support.

John Norris, a current member of FERC who has said he will not seek another term when his current one ends in 2017, said the situation might be counterproductive.

“I worry it’s an awkward situation for both Norman and Cheryl, that if Norman’s sitting down the hallway, chair-in-waiting for whatever the bargained amount of time is, and Cheryl still can’t make long-term decisions for the agency in terms of any kind of organizational structure, in terms of staff,” Norris said early last month. “You just extend the dysfunction that has resulted from the politicization of FERC that started with Reid’s engagement with the chairmanship” (E&E Daily, June 18).

This last round of intrigue comes almost a year after Obama’s previous FERC nominee, Ron Binz, withdrew his nomination because of opposition from fossil fuel and free-market organizations.

The public and political spotlight on the traditionally quiet, very technical and acronym-filled agency has stakeholders concerned about the future of its policies as it continues to tackle a growing number of serious issues surrounding grid reliability, physical and cyberattacks on electric infrastructure, severe weather and shifting resources — a process that would be accelerated under new U.S. EPA rules.

The nation’s recent boom in natural gas from shale has also intensified the political spotlight on FERC’s role in reviews of liquefied natural gas export terminals and oversight of a maze of pipelines and infrastructure to carry the fuel.