The Senate Energy and Natural Resources Committee voted 13-10 on Tuesday to advance the nomination of controversial Department of Energy official Bernard McNamee to the Federal Energy Regulatory Commission, setting up a vote from the full Senate.
The committee advanced McNamee, despite the release of a video last week in which the nominee criticizes renewable energy and portrays environmental groups as tyrannical. Committee Chairman Lisa Murkowski, R-Ak., called those comments "unfortunate" but said they were not disqualifying.
The full Senate could set up a vote to approve McNamee as soon as next month, restoring a 3-2 Republican majority on FERC. If he is approved, critics warn that his filmed comments and past work on an ill-fated coal and nuclear bailout at the Department of Energy could open the commission up to legal risks.
Approval from the Energy and Natural Resources Committee shows that Republicans are likely to forge ahead with McNamee's confirmation to FERC despite mounting concerns among environmental groups and the clean energy industry that the nominee is biased against renewables and toward fossil fuels.
Last week, Utility Dive posted a video of McNamee speaking at a conference for Texas lawmakers in February. In the speech, he said renewables "mess up the whole physics of the grid," referred to carbon dioxide as not a "real pollutant," and portrayed industry lawsuits against environmental groups as a "constant battle between liberty and tyranny."
Democrats on the committee said those comments should disqualify McNamee from consideration for FERC, an independent regulatory agency whose members typically pride themselves on a "fuel neutral" approach to regulation. Murkowski, however, said they did not override McNamee's assurances to her that he would be an "independent arbiter" at FERC.
"Some suggested this video is sufficient to warrant a vote against Mr. McNamee," Murkowski said during the committee meeting. "I'm looking at it in the context in which i have seen it — as one speech from an event 10 months ago just his second day in a new job out in Texas."
"Based on my conversations I think he understands the FERC is an independent agency and must remain as such," she added.
The committee vote largely fell along party lines, with only one Democrat — coal ally Sen. Joe Manchin, D-WVa. — voting to advance McNamee. Other Democrats said the nominee's comments show him to not have the proper temperament to be a FERC regulator.
"After the video has surfaced ... I find it hard to believe he will be an impartial reviewer of these issues," Ranking Member Maria Cantwell, D-Wa., said at the meeting. "Mr. McNamee was not defending the administration's policies, he was speaking as a private citizen and his words revealed a very strong bias in favor of fossil fuel and against renewable energy."
Cantwell noted that in 2013, Murkowski and other Republicans on the committee helped sink President Obama's nomination of Colorado utility regulator Ronald Binz to be chairman of FERC over concerns that he may have a bias toward renewable energy.
"In light of Mr. Binz's strong support for clean energy, members of this committee questioned whether he would have the fairness and judiciousness expected of a [FERC] commissioner," Cantwell said. "They said his views were troubling and out of the mainstream. That is far more clearly the case here."
Murkowski pushed back on the parallel after the meeting, telling reporters she has no set criteria for determining whether a nominee is biased.
"I don't know that there was ever a 'Binz test.' If there was, I wasn't giving that," Murkowski said. "I have to look at every individual that comes before me, I have to ask the questions and make that determination."
Asked why Binz's record was disqualifying when McNamee's comments were not, Murkowski only noted that Binz withdrew his nomination before the committee could vote on it.
"We didn't have his nomination in front of us as a committee vote, if you recall," she said.
If McNamee is approved by the full Senate, some energy lawyers say his comments could open FERC up to legal challenges on issues involving groups the nominee targeted in his speech.
“Case law does not establish a hard line with regard to bias,” Ari Peskoe, director of the Environmental Law Initiative at Harvard, said on Twitter this week. “Challenging McNamee's decision not to recuse himself from a docket based on filings from enviro groups is certainly not a slam dunk. But he's a procedural liability for FERC. All risk, no gain.”