Glick comments spark backlash from Chatterjee, McNamee

Source: By Edward Klump, E&E News reporter • Posted: Wednesday, November 20, 2019

SAN ANTONIO — Commissioner Richard Glick yesterday bemoaned a lack of compromise at the Federal Energy Regulatory Commission, drawing a sharp rebuke from his two colleagues.

Glick, a Democrat, said the biggest negative surprise of his time at FERC is somewhat emblematic of what’s going on in Washington, D.C., and perhaps state capitals in terms of less bipartisanship and less compromise.

“There hasn’t been as much opportunity for compromise, opportunity for negotiation,” he said, describing a sense that a vote will go forward once an issue has majority support. “And I hope that we can return back to the days where I think FERC used to be, where it’s more of a nonpartisan, independent agency.”

Glick’s comments came during a gathering of the National Association of Regulatory Utility Commissioners, who are meeting this week in Texas to discuss trends and install new leadership. One of the themes during sessions this week has been tensions over policies that touch states, organized markets and FERC. But disagreements within FERC — which has two Republican commissioners and one Democrat in Glick — were also in the background.

In a joint statement yesterday to E&E News, FERC Chairman Neil Chatterjee and Commissioner Bernard McNamee said they were disappointed in Glick’s comments and said he knows there have been numerous times during their tenure where each has compromised on proposed orders and accepted his suggested changes.

“Let’s be clear: the fact that Commissioner Glick’s positions are not always adopted does not constitute partisanship; often, this merely is the result of disagreements about how we each interpret the law,” the statement said. “Reasonable minds can, and often will, disagree.”

The Republican commissioners said there have been several times where they were disappointed by the tone of Glick’s comments and dissents, and they said that kind of rhetoric could contribute to a partisan divide.

“Though we would not be surprised if there continue to be areas where our viewpoints diverge — as is the very nature of a Commission with multiple appointees — each of us remains committed to maintaining an open dialogue and considering our respective colleagues’ positions on issues that come before us,” Chatterjee and McNamee said.

Further drama could be on the horizon, as FERC is scheduled to meet tomorrow.

Yesterday, after his appearance onstage with NARUC’s outgoing president, Nick Wagner, Glick told reporters that the last commission meeting got a little heated — at least for a commission meeting (Energywire, Aug. 9). He said he sat down with Chatterjee afterward.

“The chairman said a few things about me at the press conference that I took … some offense to, and I talked to him about it,” Glick said.

He said he gets along with the other commissioners fine, even if there are policy disagreements. “When I think we’re not being treated fairly, when I think that debate is being shut off … or conversations aren’t being had, I will express my concern,” Glick said.

The commission may soon have a new commissioner in James Danly, FERC’s general counsel who was nominated by President Trump to become a commissioner. His nomination was approved yesterday by a Senate committee (Greenwire, Nov. 19).

Adding Danly would give FERC three Republican members to one Democrat, as the idea of pairing one nomination from each party wasn’t followed in this case.

When asked about the lack of a pairing yesterday, Glick told the NARUC audience that Democrats didn’t have much leverage given the current filibuster rules. Glick worried about the precedent and said he’d like to see the other Democratic spot filled at FERC.

Cheryl LaFleur exited FERC earlier this year, and Glick said he thinks FERC is at its best when it has five commissioners.

Glick wondered if a Democratic president and Senate in the future might mean no Republican nominees.

“That’s not the way that FERC was designed to operate,” he said.

Seeking collaboration

Speaking to reporters, Glick said having one new commissioner would change the dynamics. He expressed hope in having an ability to discuss and debate issues, adding that he had very positive discussions with Chatterjee as they shared views. Glick said he also talked to McNamee and found he was interested in working out things.

In the future, Glick said he hoped to comment on substance.

“I’m hopeful that we can maybe turn the corner and put … some processes into place that’ll be more collaborative,” Glick said.

Also at NARUC, Philip Moeller, a former Republican member of FERC, told E&E News his time at the commission was bipartisan, not nonpartisan. He said the commission generally is going to be more efficient in its operation if all five seats are filled.

At the same time, Moeller said FERC’s commissioners are trying to do a good job, with a lot of contentious issues out there. In terms of no Democrat being paired with Danly, Moeller said it’s up to the president to put a nomination forth.

“President Obama left two Republican seats empty at the end of his term, and then there wasn’t a quorum,” Moeller said. FERC didn’t have a quorum during part of 2017.

This past September, Glick discussed a range of issues with E&E News during a visit to Houston (Energywire, Sept. 27). Yesterday, he expanded on many issues, including federal and state dynamics and the Public Utility Regulatory Policies Act (PURPA), which directs utilities to buy energy from small-scale developers. He said FERC’s “amazing” staff has been his most positive surprise.

Glick partially dissented on a decision about a proposed PURPA rule this year, and yesterday he emphasized FERC’s role in administering the law. He said Congress amended PURPA in 2005 and didn’t get rid of it. He said he felt like the majority of the commission in that case decided it wanted to “gut” PURPA administratively.

“Congress has basically told us that we still need to facilitate an opportunity for the small power producers to be able to contract with utilities, at least in states that don’t have sufficiently competitive markets,” Glick said.

One idea Glick discussed yesterday involves giving everyone equal access to the procurement process, and he mentioned utility resources, small power producers, other renewable generators and other generators in general.

Yet Moeller, who’s now executive vice president for business operations and regulatory affairs at the Edison Electric Institute, told E&E News the notice of proposed rulemaking on PURPA is pretty comprehensive. He said it gives states “greater flexibility in a wide variety of areas, from pricing to how they do the legally enforceable obligation to then some subelements of pricing options that they can take.”

Modernizing PURPA is long overdue, partly because there have been conflicting court decisions when states have tried to move forward, he said.

Comments are due relatively soon, and Glick was disappointed a request for extended time wasn’t granted.

“I’d be shocked if we didn’t have a final rule with regard to PURPA at some point in 2020,” he said, possibly in the first half. But he said it’s up to the chairman.

State policies

Glick said there’s no doubt that state policies affect wholesale power markets. But he said the Federal Power Act is clear that states have authority over resource decisionmaking.

“At the very least, we need to accommodate state policies, not try to get involved and try to … kind of overturn state policies through administrative action,” he said.

Glick said technologies have been subsidized for a long time. If there’s only a recognition of renewable and nuclear power subsidies, he said, that is kind of shortsighted. Over the long run, he said other subsidies also have an effect on today’s wholesale markets.

He expressed concern that the topic could become more fractious, saying many states are adopting clean energy or other policies. He later said there could be a threat to the future of regional transmission organizations.

“To the extent that the folks go to the wholesale market and the regulator — in this case FERC — and say, ‘We need to figure out a way to block those states or make it more difficult for those states to move forward,'” he said during his public appearance, “I think we’re … asking for a lot of trouble.”

On transmission in general, Glick expressed concerns about not building what’s going to be needed for the grid of the future, especially in certain areas.

There also were discussions of ongoing questions on energy storage and its participation in wholesale power markets. NARUC previously joined a fight against a FERC order on that matter (Energywire, July 17).

Glick added yesterday that states have legitimate concerns to ensure that the distribution system provides reliable and cost-effective service to people. But he said FERC’s role in wholesale transactions comes from the Federal Power Act.

While the act has flexibility written into it, he said there’s probably room for updating it from a legislative perspective to better draw lines around where states and FERC have a role.

Wagner, who’s a commissioner in Iowa, mentioned protesters and more interaction from the public that’s starting to dribble into states.

Glick recounted a Halloween story from shortly before he started at FERC in 2017 as someone knocked on his door at night. He said he found two adults with masks “trying to tell me how bad fracking is.”

He said it’s fine to come to rant at public meetings, but he said going to people’s houses or putting targets on commissioners’ faces and putting them on sign posts is “beyond the pale” and not consistent with public discourse. He suggested sitting down with people to give them a voice.

Glick told reporters he’s also heard concerns from state regulators.

“They don’t feel like they’re being heard,” he said. “And they’re afraid of engaging in activities further that would give FERC additional jurisdiction over something.”