Last Monday, the White House announced a series of new judicial and law enforcement nominees for Senate confirmation. Ari Peskoe, director of the Electricity Law Initiative at Harvard Law, tweeted using the hashtag #FERCWatch, “White House sends 8 nominations to the Senate. No FERC nominee(s).”
Those of us who follow FERC (it’s an addiction, I admit), are watching the Trump administration’s moves to fill the two vacancies on the commission. Under law, the commission consists of five members, three from the party in control of the White House and two from the minority. The commission requires three members (regardless of party) for a quorum, enabling them to do most business.
Today, the commission is populated by a two-person Republican majority (Chairman Neil Chatterjee and Bernard McNamee) and a lone Democrat, Rich Glick. Since Cheryl LaFleur announced she would leave the commission at the end of August (Democratic leaders told her she would not get nominated for another five-year appointment, which would have been her third), there has been scuttlebutt about the Trump administration (and Sen. Majority Leader Mitch McConnell of coal-rich Kentucky, who is really the power in this pas de deux) moving in a familiar direction. The administration would nominate a Republican and a Democrat to fill the two vacant seats. That would restore the statutory 3-2 partisan split at an agency not known for deep partisan splits.
In an interview in her last days in office, LaFleur told me, “In similar circumstances in the past, the White House and Congress have paired nominees in order to get a bipartisan consensus.” LaFleur said she has not heard if that is the current plan, but she has “heard that the Democrats are looking at Allison Clements, a former Natural Resources Defense Council lawyer and director of the Sustainable FERC project.”
Those rumblings appear to have subsided. I have doubts that the Republicans, and McConnell in particular, feel any urgency to fill the FERC vacancies. He’s the key player, as was then Senate Majority Leader Harry Reid of Utah when Democrats controlled the Senate. Chatterjee, a genuinely nice fellow who is not the sharpest knife in the drawer, was McConnell’s energy aide before getting a FERC slot and promoted to chairman when Republican Kevin McIntyre, a very well respected and experienced energy lawyer, died in office.
The other initial GOP choice for a seat at FERC after Trump triumphed, Robert Powelson, a veteran and respected Pennsylvania regulator, left FERC not long after he and McIntyre foiled the attempted power grab by Energy Secretary Rick Perry 2017’s failed attempt to bias FERC’s competitive markets to favor coal and nuclear generation.
McIntyre, Powelson, and an obviously conflicted Chatterjee joined LaFleur and Glick in early January in rejecting the Perry and White House pro-coal move. Since then, Powelson left to take a job as a top water industry lobbyist, McIntyre died of brain cancer, and the administration named McNamee, a former Perry advisor who helped write the ill-fate coal rescue proposal, to FERC. He was confirmed in December 2018, establishing a partisan stalemate that lasted almost a year.
Chatterjee and McNamee have voted on contentious FERC issues in lockstep, particularly on the fraught topic of whether and how to consider greenhouse gas emissions in granting approval to new natural gas pipelines and LNG export terminals.
Now, it seems clear to me, there is no reason for the GOP to appoint two unknowns – a Republican and a Democrat – when the party’s agenda at the commission is in complete control of the interests of McConnell and the White House (whoever oversees energy policy there, which is entirely murky). The Republicans were completely blindsided by Republicans McIntyre and Powelson, who showed convincingly that they valued FERC’s shepherding of the competitive markets more than political posturing about the president’s agenda to “save” coal.
I suspect McConnell is figuring, why introduce uncertainty into a situation where his interests are in complete control.
— Kennedy Maize