Senate confirms McNamee, and challenges await

Source: Rod Kuckro, E&E News reporter • Posted: Monday, December 10, 2018

Bernard McNamee could be sworn in as early as today as the newest member of the Federal Energy Regulatory Commission after a 50-49 party-line vote in the Senate yesterday.

That would allow him a matter of days to get up to speed and possibly vote on items that will be on the docket for the commission’s Dec. 20 meeting.

President Trump tapped McNamee, 51, executive director of the Department of Energy’s Office of Policy since June, to succeed Robert Powelson, who resigned in August.

McNamee is filling the remainder of Powelson’s term that expires June 30, 2020.

McNamee, a Republican, had previously served at DOE from May 2017 to February 2018 as a political appointee in the general counsel’s office, where he was involved in a failed proposal to convince FERC to enact market rules subsidizing coal and nuclear plants.

Unified opposition from Senate Democrats was based on McNamee’s perceived bias in favor of fossil fuels and his opposition to renewables and skepticism about climate change.

The roll call vote on McNamee was a departure as most FERC nominees are confirmed by unanimous consent of the Senate with no debate. The last roll call vote was on Norman Bay’s nomination in 2014, when he was picked by President Obama to be chairman after serving as director of FERC’s enforcement office.

In that role, Bay had gone after large banks such as JPMorgan Chase & Co. and Barclays PLC, earning him their concerted opposition to his becoming chairman. He was approved 52-45.

McNamee’s approval gives FERC a full complement of commissioners for the first time since Powelson’s departure. He joins Chairman Neil Chatterjee and Commissioner Kevin McIntyre, both Republicans in the agency’s majority. The other two commissioners are Cheryl LaFleur and Richard Glick, both Democrats.

Chatterjee welcomed “Bernie to the commission,” saying his “knowledge and experience will serve the commission well.”

Former FERC Commissioner Colette Honorable, a Democrat, said recently that McNamee “has a great mix of federal and state experience in public and private sectors, which should serve him well at FERC. He will find the agency refreshing, filled with sharp and experienced men and women who want to help him succeed.”

Likewise, Michelle Bloodworth, president and CEO of the American Coalition for Clean Coal Electricity, called McNamee “well-qualified.”

She said his biggest challenge will be ensuring a “resilient and fuel-secure grid,” suggesting FERC lay out milestones and a plan for completing its nearly yearlong review of grid resilience, including a “uniform definition for resilience.”

Nora Brownell, a former Republican member of FERC, said she hopes that “McNamee respects the institution, their history of political independence and respect for the rule of law, as well as his fellow members as he promised during his [confirmation] hearing.”

“If he actually does that and recuses himself from any of the coal/fossil subsidies, he may overcome what are serious credibility issues,” she said.

“Otherwise, the courts will decide these cases, and the hoped-for approval of delayed projects will not be achieved,” Brownell said. “I believe a compromise is possible. Whether the intellectual leadership and will to achieve something beyond partisan politics is there remains to be seen.”

Texas energy consultant Alison Silverstein, who in 2017 was an author of a DOE study on grid reliability, said McNamee’s “challenge will be to demonstrate — over and over on many issues — that he is the fair, impartial arbiter he promised he would be in his hearing. It will take some work for him to rise above his past coal cheerleading and trashing of climate change, renewables and environmentalists to earn recognition as a credible, fair, nonpartisan commissioner.”

Should he recuse?

Criticism of the Senate action was swift and pointed.

As promised, Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, filed a challenge at FERC yesterday calling on McNamee to disqualify himself from two pending matters and from future proceedings concerning rates for “fuel-secure” generators.

“He has significant potential conflicts because of his role at the Department of Energy,” said Tyson Slocum, energy director for the group Public Citizen.

“This has nothing to do with his personal beliefs, his views on climate change, but shepherding through the most radical market redesign in recent memory and his redefinition of just and reasonable rates,” he said, referring to McNamee’s time at DOE.

Not only will McNamee be subject to recusal requests on grid resilience issues, but also any organized electricity market redesigns that justify market rule changes on grid resilience factors, he added.

“Where Republicans think that McNamee is an asset, I think they’re going to come to fear him as a liability because of possible significant recusal requirements,” Slocum said.

University of Richmond energy law professor Joel Eisen said, “I do not recall any nominee to the commission in the 15 years that I have been studying that was as divisive as this one.”

He called the nomination “an unwanted step toward the further politicization of this agency.” FERC has been known “as a nonpartisan roll-up-the-sleeves, get-the-job-done sort of agency, and now it looks much more political than it ever did.”

Eisen said he would not be surprised to see the commission be asked to consider another plan that “looks like a bailout for coal.”

The issues that FERC deals with “require so much sensitivity and understanding of the markets and other structures [FERC] has put in place. To approach it through a political lens is going to distort and make difficult the kind of analysis the commission needs to do,” Eisen said.

John Moore, director of the Sustainable FERC Project at the Natural Resources Defense Council, said McNamee “needs to wholeheartedly support FERC’s mission as a fuel-neutral agency, which means not favoring fossil fuels despite his past statements.”

“FERC is supposed to care about the reliable delivery of electricity at ‘just and reasonable’ rates, not about the source of the electrons powering the grid,” he said.

Mary Anne Hitt, senior director of the Sierra Club’s Beyond Coal campaign, said, “From this day forward we will do everything we can to guarantee that he follows the law, treats clean energy sources fairly and recuses himself from all matters pertaining to his failed coal bailout scheme. It’s essential that we have a fair and lawful FERC moving forward.”

Up to a full commission

Whether FERC will truly have a working complement of five commissioners is a question in the minds of many FERC observers.

McIntyre, who recently stepped down as chairman for health reasons, has not been at FERC’s headquarters on a regular basis since August. His last commission meeting was in July.

McIntyre had surgery in 2017 to treat brain cancer, and in March he acknowledged it in a statement reassuring well-wishers that after “successful surgery” he expected “to be able to maintain my usual active lifestyle, including working full time.”

But it hasn’t worked out that way.

McIntyre did not participate in the commission’s November docket and did not vote in a 2-1 decision last week that valued the “fuel-secure” attribute of an Exelon Corp. gas plant in Massachusetts.

FERC officials have been mum about McIntyre’s health status, which he described most recently in an Oct. 22 letter to Trump when he suggested stepping away from the duties of FERC chairman.

“I very recently experienced a more serious health setback, leaving me currently unable to perform the duties of Chairman with the level of focus that the position demands and that FERC and the American people deserve,” McIntyre wrote.

Trump promptly designated Chatterjee, then a FERC commissioner, as chairman.

Sen. Lisa Murkowski (R-Alaska), chairwoman of the Senate Energy and Natural Resources Committee, said McIntyre’s health was not a factor in the speedy confirmation process.

“No, no. We’ve had a priority on getting the FERC up to a full complement,” she said. “The administration has been supportive of that. And I had told [Majority Leader Mitch McConnell (R-Ky.)] some time ago that when we get him out of committee we’d sure like to have floor time, and so it teed up that way.”

Reporter Geof Koss contributed.