Key Republican Energy Regulator Looks to Stay Past End of Term

Source: By Dean Scott, Bloomberg Law • Posted: Tuesday, April 27, 2021

A Republican on the Federal Energy Regulatory Commission who raised eyebrows for delving into carbon pricing is considering staying on after his term expires, amid doubts that a Democratic successor can be confirmed by the end of June.

“Here we are in late April, and a successor has not even been nominated yet,” Commissioner Neil Chatterjee told Bloomberg Law, suggesting talk of his June 30 departure from the nation’s key energy regulatory body may be a bit premature.

Staying on would ensure a full complement of five FERC commissioners, and a GOP-leaning panel, until President Joe Biden’s eventual nominee arrives. Republicans hold a 3-2 majority at FERC—at least until the Senate confirms Chatterjee’s successor.

Biden has yet to nominate a successor, though he elevated a Democratic commissioner, Richard Glick, to chairman in January. The White House didn’t respond to a request for comment.

The prospect of commissioners serving past their terms isn’t that unusual and they can serve through the end of the year if the Senate doesn’t confirm a successor, a FERC spokeswoman said.

More Pressing Hires?

FERC regulates interstate transmission of electricity, natural gas, and oil—but also pipelines and liquefied natural gas—and depending on its direction could be a potent ally in Biden’s climate agenda including his pledge to decarbonize the grid by 2035.

It’s possible the Biden administration simply hasn’t gotten around to nominating a successor for Chatterjee because of more pressing new hires—such as cabinet and subcabinet-level officials, key executive office staff, judgeships, ambassadors, and natural security-related personnel, said Colette Honorable, a Democrat who served as FERC commissioner from 2014 to 2017.

Further, Chatterjee “is quite well known to people on both sides of the aisle” and is working with Glick on issues, policies, and precedents on which they align, said Honorable, now a partner at Reed Smith LLP’s energy and natural resources group.

“Quite frankly, there may not be a sense of urgency when the agency is functioning well,” she said. “They are issuing orders, the commissioners are voting, and there’s no concern, as with previous iterations of the commission, around the ability to move the commission’s business.”

‘Line in the Sand’

Chatterjee, noting his own 2017 confirmation took months to move through the Senate, said it’s possible he “could stay well past June 30″ but would likely re-evaluate that decision depending on how long it takes to get his successor in place.

“I do need at some point to draw a line in the sand saying ‘this is my last day on the commission,” he said, “but I’m not going to hang on in perpetuity until a successor is put up,” adding that he’ll ultimately want to give his family, the commission, and regulated entities some certainty around his departure.

Chatterjee was FERC’s chairman last fall when he pushed some early steps to explore carbon pricing, an effort that got him demoted by President Donald Trump the day after the November election.

He said he wears Trump’s demotion “as a badge of honor,” adding that it only further highlighted why Congress created the regulatory commission as an independent agency. If the carbon pricing approach “didn’t align with the political objectives of the administration, so be it,” Chatterjee said.

FERC ultimately issued a policy April 15 that stopped short of endorsing such approach, but said it would review state proposals that incorporate carbon pricing.

‘Standing His Ground’

When Chatterjee does step down, he “will be remembered for standing his ground on climate change and carbon pricing and being demoted for it,” said Alex Flint, a former Senate Energy and Natural Resources Committee director.

“It’s one of the best examples of personal courage during the Trump administration,” said Flint, executive director of the Alliance for Market Solutions, which backs a carbon tax.

Chatterjee, a former adviser to Sen. Mitch McConnell (R-Ky.), made his comments as the U.S. unveiled a new pledge to cut greenhouse gas emissions, vowing a 50%-52% reduction by 2030 from 2005 levels.

Chatterjee said he is generally skeptical of climate targets. He has pushed market-oriented efforts to remove barriers for low-carbon technologies such as battery power and expansion of LNG exports.

He noted the U.S. ultimately outstripped the 17% by 2020 emissions target in 2009 House cap-and-trade legislation authored by Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.), now a senator. That legislation never came up for a Senate vote.

“I’m not prepared to say today that we can’t meet those targets, because the targets we thought we would be setting with Waxman-Markey we blasted past—in the absence of any government intervention,” he said.

—With assistance from Stephen Lee.