The U.S. Senate on Wednesday voted 50-49 to confirm Department of Energy official Bernard McNamee to serve on the Federal Energy Regulatory Commission for the remainder of a term ending in June 2020.
The party-line vote came despite Democrat concerns over the nominee's past work crafting a coal and nuclear bailout proposal at DOE and the recent release of a video showing McNamee criticizing renewable energy and environmental groups.
Democrat senators and some energy lawyers say the new commissioner should recuse himself from issues related to coal and nuclear compensation, such as FERC's pending grid resilience docket.
The close confirmation vote on McNamee illustrates concerns among many Democrats and clean energy supporters over the nominee’s past work at DOE and his perspective toward renewable energy and climate change science.
The Senate’s vote to approve McNamee came less than a month after Utility Dive released a video of McNamee giving a speech to Texas lawmakers in February when he worked at a conservative think tank.
In the speech, McNamee says renewable energy "screws up the whole physics of the grid," referred to carbon dioxide as not a "real pollutant" and called industry legal battles with environmental groups a "constant battle between liberty and tyranny."
Democrats, led by Sen. Minority Leader Chuck Schumer, D-N.Y., said those comments reveal a bias against renewable energy and toward fossil fuels that should disqualify him from FERC, an independent agency whose members typically pride themselves on a "fuel neutral" regulatory approach.
Referring to McNamee as a “fossil fuel zealot,” Schumer said in a Wednesday floor speech that the nominee "has some of the most regressive [energy] views that we've seen in a long time.”
The 50-49 vote fell along party lines, with Sen. Joe Manchin, D-W.Va., voting against the McNamee despite voting in support of the nominee two weeks ago in the Energy and Natural Resources (ENR) Committee.
In a Wednesday statement, Manchin said viewing McNamee's filmed comments changed his mind about the nominee. The coal-friendly senator is slated to become the ranking member on the ENR committee in the next Congress, which has sparked protest from environmental groups.
"After viewing video footage, which I had not previously seen, where Bernard McNamee outright denies the impact that humans are having on our climate, I can no longer support his nomination to be a FERC Commissioner," Manchin said.
The vote on McNamee was unusual, as FERC picks are generally approved by unanimous consent in the Senate with little controversy.
In the weeks before the vote, some Democrats criticized ENR Chairman Lisa Murkowski, R-Ak., for supporting McNamee after she had opposed the nomination of Colorado regulator Ron Binz in 2013 due to his support for renewable energy.
Murkowski rejected that parallel on the Senate floor on Wednesday, saying that her opposition had more to do with Binz's work with outside groups supporting his nomination than his statements about renewables.
"We didn't actually have him up for consideration," Murkowski said, noting that Binz withdrew his nomination before a committee vote. "That was based on bipartisan concerns about his substantive comments and the approach that he took to secure support for his nomination."
Some energy lawyers say McNamee's past work on DOE's ill-fated coal and nuclear bailout should compel him to recuse himself from such issues. McNamee helped craft the cost recovery plan that FERC unanimously rejected in January, signing the cover letter when the proposal was sent to regulators.
"He ought to recuse himself on this," Sen. Sheldon Whitehouse on the floor, referring to the DOE plan.
The Harvard Electricity Law Initiative announced Thursday it will file a brief at FERC formally requesting that McNamee recuse himself from requests for rehearing on FERC's rejection of the DOE plan and FERC's grid resilience proceeding set up in the same order.
"Having developed the [bailout] at DOE, Mr. McNamee may not decide a request for rehearing about it or revive it in the resilience docket that emanated from FERC's rejection of the NOPR," Director Ari Peskoe wrote in an email. "We explain in our brief that federal court precedent compels Mr. McNamee's recusal and his refusal to do so would provide a federal court reviewing FERC's order with a procedural reason to invalidate FERC's decision."
In a federal ethics document dated Oct. 5, McNamee pledges to recuse himself from any matters involving the Texas Public Policy Foundation, one of his former employers, but makes no mention of the Department of Energy, his work on coal and nuclear policy, or the multiple environmental groups he criticized by name during his February speech.
"If I were advising him, I would have recommended a broader look at recusal issues," Peskoe said in a separate email.
McNamee's confirmation to FERC restores a 3-2 Republican advantage that the GOP lost in August when former Commissioner Robert Powelson stepped down to run a water company trade group. This week, the vacancy allowed Democrats to win a rare 2-1 vote on market rules in ISO-New England when Commissioner Kevin McIntyre, who is in poor health, declined to issue a vote.
Correction: A previous version of this post misidentified the Harvard program that filed a recusal request at FERC. It is the Electricity Law Initiative, not Energy Policy Program