Manchin pledges to hold out for Democratic FERC pairing post-McNamee as Dems decry Danly nomination

Source: By Catherine Morehouse, Utility Dive • Posted: Wednesday, March 4, 2020

Senators were vocal in their frustrations with the White House on Tuesday for not sending the Committee a Democratic nominee after the 2019 departure of Cheryl LaFleur, leaving the commission with a 3-1 Republican majority.

The commission has long been thought of as a nonpartisan body, and many members expressed their frustrations with what they see as an increasingly political regulatory agency.

“This is a sad day and I think that FERC is not working today,” Sen. Martin Heinrich, D-N.M. said before the vote. “The FERC has become a political ping pong match like everything else around here … and if you look at some of the capacity rulings and other things coming out of the FERC today, it is reprehensible.”

FERC has been under criticism from environmentalists and clean energy groups for its recent market rule proposals for the PJM Interconnection and New York Independent System Operator, as well as its proposed changes to the Public Utility Regulatory Policies Act. 

But the commission has also struggled to maintain quorum over the past year, following the death of Chair Kevin McIntyre and the departure of LaFleur. 

Danly, who currently serves as general counsel for FERC, was nominated by the White House in October to fill out the term of McIntyre. LaFleur’s position has not been filled yet, though clean energy lawyer Allison Clements has met with the White House as a potential candidate to fill that seat. 

Manchin and ENR Chair Sen. Lisa Murkowski, R-Alaska, expressed frustration over the White House’s unwillingness to push Clements through.

The White House was “very impressed with her. And still nothing’s come out,” said Manchin. “There should be a pairing.”

The “challenge is we’ve had empty seats on the commission for far too long” said Murkowski. “I can’t do anything if there’s no nominee that comes forward … Any influence that any of you have on the White House to send that name forward” would be welcome, she told Senators.

But King said any influence the senators had was given up by the Senate’s ultimate approval of the White House’s nominee.

“The way to get the other nominee is to say ‘no’ to this one until we get the other nominee,” he said. “If we’re going to approve one without requiring the other there’s no incentive on the White House to put anyone forward. We’ve given them what they wanted here.”

McNamee’s term officially ends June 30. He plans to stay through the end of the year or until another commissioner is appointed, whichever comes first.

Correction: Danly’s appointment leaves FERC with a 3-1 majority. An earlier version of this post misstated the commission’s makeup.

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Dive Brief:

  • Federal Energy Regulatory Commissioner Bernard McNamee announced on Thursday he will not seek another term on the commission.
  • As he was appointed to finish out former Chair Kevin McIntyre’s term at FERC, his time at the commission officially ends on June 30. He plans to stay through the end of the year or until another commissioner is appointed, whichever comes first.
  • FERC Chair Neil Chatterjee said he expects McNamee, based on “his commitment to public service,” to continue working past June 30, until another commissioner is appointed. “I can tell you with complete confidence that, barring some unforeseen incident, we will not lose quorum this year,” he told reporters.

Dive Insight:

For many energy sector stakeholders, the 2017 lack of quorum within FERC, which prevented the regulatory commission from acting on most of its business, is still a fresh memory. And with only three of five commissioners currently in place, losing McNamee could mean more regulatory uncertainty.

However, McNamee said he is going to stay beyond his end date, as allowed, in order to prevent such an incident. He has communicated to the White House that he will not be seeking a second term. The administration is working on nominations, he told reporters.

In November, the Senate Energy and Natural Resources Committee advanced, mostly across party lines, the president’s FERC nominee, James Danly, who is currently serving as FERC general counsel. However, that nomination was returned to the White House at the end of 2019, after the Senate failed to confirm or reject Danly in one annual session, as per Senate rules.

The White House has not officially renominated Danly, but Chatterjee told the press he considers the process “a paperwork issue” and that he “remain[s] optimistic.”

Danly would be the third Republican with only one Democrat currently on the commission, although Democrats have asked for the White House to officially nominate a Democratic candidate alongside Danly.

A fifth commissioner spot has been vacant since LaFleur’s exit in August, although a Democratic pick has already been vetted for nomination.

Chatterjee added that priorities won’t be getting shifted based on McNamee’s news.

“I don’t see any change in direction, there’s no prioritization or moving around of agenda,” he said, adding that former Commissioner Cheryl LaFleur also stayed past the end of her official term in 2019.

Chatterjee credited McNamee for working together with him and LaFleur, a Democrat, to advance a number of natural gas infrastructure projects.

McNamee, whose family is based in Richmond, said he would not seek another FERC term for personal reasons. According to Chatterjee, the commissioner will be transitioning to spend more time at home as his son advances to high school. McNamee did not make any statements about his next role.

The federal regulator has a number of pending issues, including the potential for a rehearing of its December order to set a higher floor price for state-subsidized resources in the PJM Interconnection.

“We take … the comments for rehearing extremely seriously here and want to ensure that whatever action the Commission takes has maximum legal durability,” Chatterjee said.

FERC will be reviewing the various requests filed for rehearing of the PJM Minimum Offer Price Rule decision. Stakeholders pushing back on the commission’s decision include the grid operator.