The Trump administration’s controversial nominee to the Federal Energy Regulatory Commission, energy lawyer Bernard McNamee, took a conventional, mainline approach to his potential role at FERC during his Senate Energy and Natural Resources Committee confirmation hearing today. McNamee took care to distance himself from the administration’s failed proposal at FERC to upset competitive markets in order to prevent coal-fired power plants from closing.
In his opening statement, McNamee said, “As an independent agency, FERC plays a vital role in the United States energy sector by implementing congressional policy to help ensure that all Americans have access to abundant and affordable energy.” He added, “To that end, I think that markets are the best way to allocate resources and set prices and, if confirmed, I am committed to continuing FERC’s independence in its decision-making.”
Later in his opening statement, McNamee added, “If confirmed, I commit that I will be a fair, objective, and impartial arbiter in the cases and issues that would confront me as a commissioner. My decisions will be based on the law and the facts; not politics. In my view, such impartiality helps sustain the rule of law by ensuring that all those who come before a government tribunal have confidence that their positions will be heard and thoughtfully considered.”
In questioning from the committee, McNamee downplayed his role in the administration’s controversial proposed rulemaking, which FERC rejected unanimously in January. He told the committee that he had no role in developing the proposal, but reviewed it as a lawyer. Asked by New Mexico’s Democratic Sen. Martin Heinrich whether he believes there is a “urgent threat to reliability” posed by closure of coal-fired plants. McNamee responded, “It does not appear at this point on a general nationwide bases that there is an emergency.”
When Heinrich pressed, asking, “Does FERC have to pick and choose between generating technologies,” McNamee replied, “That is not FERC’s role. FERC’s goal is to make sure markets function properly.”
The toughest questions came from Oregon Democratic Sen. Ron Wyden, who said, “You played a key role in the Trump energy bailout so flawed that every member of FERC rejected it.” Given McNamee’s role in the failed policy, Wyden said his FERC nomination “isn’t just putting the fox to guard the chicken coop. It’s putting the fox inside the chicken coop.”
McNamee calmly responded, “I understand the difference between my role as a lawyer, when I worked for [DOE Secretary Rick Perry] and what the role of FERC is.” He noted, “FERC has a tradition for making decisions not as Republicans or Democrats but working together. My pledge is that I will do that.”
Wyden said McNamee should recuse himself at FERC on any matters that touch on the Trump coal plan. Later Nevada Democratic Sen. Catherine Cortez Masto followed up. “Will you recuse yourself?” McNamee said the docket is closed and the issues unlikely to come up again. When Masto pushed harder, McNamee said he would consult with “ethics counsel” on the need for recusal should the issue reappear.
Given the general tone of the committee hearing, it is likely that McNamee will be easily confirmed by the committee and then by the full Senate.
In an example of what appears to be a failure to coordinate, the McNamee confirmation hearing came at the same time FERC was holding its regular monthly open business meeting. At the meeting, the commission approved a set of actions to further respond to last December’s broad tax legislation.
The commission took a series of actions aimed at adapting to the new tax law: A notice of proposed rulemaking, a policy statement, and a substantial list of orders on individual rate revisions and reductions. According to a FERC press release, the proposed rule would “require each public utility transmission provider with transmission rates under an Open Access Transmission Tariff , a transmission owner tariff or a rate schedule to revise those rates to account for changes caused by the Tax Cuts and Jobs Act. These proposed reforms are designed to address the tax law’s effects on the Accumulated Deferred Income Taxes (ADIT) reflected in their transmission rates.”
The FERC meeting was also notable for the continued absence of former chairman and now commissioner Kevin McIntyre. He stepped down as chairman for health reasons in late October, prompting the White House to name commissioner Neil Chatterjee as the new chairman, while McIntyre stayed on the commission.
— Kennedy Maize