The Quad Report

The Senate confirmation Dec. 5 of Bernard McNamee to be aRepublican member of the Federal Energy Regulatory Commission, by a partisan 50-49 vote, had barely happened when the first filing with FERC seeking McNamee’s recusal on coal-related votes hit the commission.

Ari Pescoe, in a 22-page filing that surely was in the works as NcNamee’s nomination moved through the Senate, on Dec. 6 argued that McNamee “must recuse himself” from Dockets RM18-1 and AD 18-7. The two dockets relate to the Bush administration’s failed attempt to persuade FERC to give coal and (as an afterthought) nuclear generation a leg up in competitive wholesale markets. The first item was FERC rejection of the Bush plan, pushed by Energy Secretary Rick Perry, and the second was a FERC sop to the administration by saying it would continue to consider the overall issue of what defines electric grid resilience.

McNamee pledged during his Senate Energy Committee confirmation hearing that he would be an independent arbiter and would respect FERC’s independence from the political powers that be in the White House and the DOE. But he signed off on the Bush push for coal at FERC as DOE general counsel. He said at the confirmation hearing that he was merely a technician, offering his opinion of the legality of the administration’s proposal to FERC.

Pescoe, director of the Harvard Electricity Law Initiative, part of the prestigious law school’s energy and environmental law program, wrote, “As a matter of law, Commissioner McNamee cannot be an impartial adjudicator in these proceedings.” McNamee, Pescoe noted, was DOE’s lawyer during the creation of the administration’s proposal and personally signed off on the notice of proposed rulemaking (NOPR) that DOE presented to FERC.

Beyond that, said Pescoe, McNamee’s recusal “must extend beyond these two dockets. The NOPR’s sweeping conclusions prejudge issues that could appear before the commission in ratemaking proceedings. This prejudgment is substantially different than a commissioner’s public statements about policy issues, which the commission has recently determined were not a basis for recusal.”

Pescoe did not accuse McNamee of bias. Rather, he said, “Recusal protects against the ‘appearance’ of bias ‘from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.’” He quoted the remarks from former Supreme Court Justice Antonin Scalia in a 2004 case.

It’s likely that further filings at FERC will seek to limit McNamee’s role in proceedings before the commission. Greentech Media commented before the Senate confirmation vote, “But if he is confirmed, opponents say he won’t be able to vote on any of the pro-coal and nuclear policies he held craft at the Department of Energy.” That remains to be seen.

McNamee’s confirmation highlighted the intense partisan divisions that will remain in the Senate when the new Congress assembles in January. While West Virginia Democrat Joe Manchin, understandably a strong advocate for the coal industry, supported McNamee in the Senate Energy Committee, he abandoned McNamee on the floor.

Manchin said McNamee’s views on global warming, revealed in speeches he made wellbefore he joined the Trump administration, soured him on the nominee. Manchinsaid, “After viewing video footage, which I had not previously seen, whereBernard McNamee outright denies the impact that humans are having on our climate, I can no longer supper his nomination to be a FERC commissioner.”

Technically, McNamee’s seat at FERC restores the statutory partisan balance at the commission, with three Republicans, including Chairman Neil Chatterjee, and two Democrats. But that could be misleading as the commission goes forward. Republican Commissioner Kevin McIntyre, the former chairman, has not been active at FERC since mid-October, as he recovers from unspecified health problems.

Speculation centers on McIntyre’s earlier bout with brain cancer, which was not revealed until he joined the commission. He may be suffering from a relapse in the disease he said earlier was in remission. As a practical matter, that puts the commission – which has not typically been a partisan operation – at a 2-2 split between Republicans and Democrat, until McIntyre’s fate is known.

If McIntyre leaves the commission, the Trump administration will face the need to make another Republican nomination. Of the first three Republicans the White House named for FERC, former Pennsylvania regulator Robert Powelson left to take a water trade association job, and McIntyre has been limited by health problems.

McIntyre has generally been seen as a solid FERC leader, well-liked and viewed as a careful regulator and experienced energy lawyer. Utility Dive online newsletter earlier this month named McIntyre its “Policy Maker of the Year.”

— Kennedy Maize