Pressed by congressional Democrats and national environmental groups to stay away from anything that comes before the Federal Energy Regulatory Commission that smells of the Trump administration’s ill-fated attempt to rescue a foundering coal industry, new Commissioner Bernard McNamee says “maybe.”
In a letter to Sen. Catherine Cortez Masto (D-Nev.) this week, McNamee said that on the basis of his consultation with FERC’s ethics officer, he will proceed on a case-by-case basis. He wrote Masto, a member of the Senate Energy Committee with jurisdiction over FERC, saying, “As I stated in my confirmation hearing, I pledge to be a fair, objective, and impartial arbiter in the cases and issues that will come before me as a Commissioner, and my decisions will be based on the law and the facts, not politics. Consistent with these ends, I will continue to seek the guidance of the [FERC ethics officer] as to recusal issues.”
McNamee included a Jan. 2 memo from Charles Beamon, FERC’s “designated agency ethics official” and an associate general counsel at the agency. Beamon noted that he and McNamee met Dec. 12 for an ethics briefing. At that meeting, McNamee told Beamon that he was recusing himself from any proceedings involving the Trump administration’s failed proposed FERC rulemaking on tilting competitive wholesale markets toward coal generation. McNamee said the recusal was because he participated as a lawyer at the Department of Energy in drafting the proposal.
But left hanging was McNamee’s participation in FERC’s ongoing grid resilience inquiry. The late Chairman Kevin McIntyre established that proceeding to give cover to the administration’s desires to rescue a coal industry beset by economic forces, including falling demand for power and the rise of cheap, fracked natural gas. According to Beamon, that discussion also included “similar matters that could come before you as a commissioner.”
McNamee’s critics have also flagged a video he did in February critical of renewable energy. A December 12 letter from Masto and 16 other Democratic senators urged McNamee to recuse himself from “future matters before FERC that might be characterized as pitting one fuel source against another,” and any issues where his “impartiality could be questioned based upon your past statements, positions, or work.”
Beamon didn’t advise McNamee on an across-the-board recusal policy, but “cautioned you that we must exercise continued oversight. As to comparable matters [to the earlier decision on the administration’s proposed rulemaking], my determination will depend on the facts of each specific matter as analyzed under the appropriate legal standards. I advise you to seek my guidance on any matter related to your past statements, positions, work, or any other concerns that you may have.”
McNamee’s letter to Masto seems to carefully walk the line that Beamon laid down.
Anti-coal activist group were spinning the McNamee letter to push their policy agenda (hardly a new Washington phenomenon). Mary Anne Hitt, director of the Sierra Club’s “Beyond Coal” campaign, said, “This isn’t good enough….Bernard McNamee’s history of proactively undercutting America’s robust clean energy industry, attacking public health and environmental organizations, and promoting dirty fossil fuels for pay doesn’t leave room for the benefit of the doubt.”
Kim Smaczniak, staff attorney at Earthjustice, the in-house law firm for national environmental groups, took a less hyperbolic approach: “The ethics guidance is a big step forward toward ensuring impartiality and integrity of FERC decision making, and a real win for the public. Rest assured that Earthjustice will be watching to ensure that this guidance is followed closely in all of FERC’s future work.”
The death of Commissioner Kevin McIntyre of brain cancer Jan. 2 complicates FERC’s future work. He had been the Trump administration’s pick to chair the commission but stepped down last fall as chairman, continuing to serve as a commissioner until his death. He was 58.
McIntyre’s death returns the commission to a 2-2 partisan split, with Chairman Neil Chatterjee and McNamee on the GOP side and Cheryl LaFleur and Richard Glick as the commission’s Democrats. Chatterjee and the two Democrats have often worked together, although there have been some partisan splits, particularly over environmental issues with natural gas pipelines and LNG export terminals.
Chatterjee came to FERC as a decided partisan, having worked as energy advisor to Senate Majority Leader Mitch McConnell of coal-state Kentucky. He appears to have shelved his partisan instincts, recognizing that FERC is mostly a legal and technical agency where party politics have traditionally played little role. So far, McNamee is a blank slate.
The Trump administration could make a nomination to fill the vacant Republican seat at FERC, but that feels unlikely given the current political warfare in Congress. It doesn’t appear that the White House is focusing on anything other than the border wall shutdown and the mess of the Syria withdrawal. Also in the cards might be a pairing of a Democratic nominee (LaFleur’s term expires in June) with a Republican. That has worked in the past.
— Kennedy Maize