- President Donald Trump intends to nominate a Republican for one of two vacancies on the Federal Energy Regulatory Commission, according to a White House announcement Monday.
- Although the administration had previously advanced pairs of Republican and Democratic nominees together, when possible, Trump will nominate FERC general counsel James Danly. Senate Energy and Natural Resources Ranking Member Joe Manchin, W.Va., noted his disappointment with the administration's "failing to honor the tradition of a bipartisan pairing" for the independent agency.
- The White House could still announce the nomination of a Democrat in order to maintain the bipartisan pairing tradition, and they have options. A rumored Democratic candidate, Allison Clements, received pre-clearance this summer from a designated ethics agent for her ethics guidance and financial disclosure, according to sources familiar with the matter.
The two vacancies on the five-member commission make FERC vulnerable to a lack of quorum if any of the current commissioners need to recuse themselves from a docket. The Trump administration has faced many calls to fill the positions, especially as FERC has been unable to officially rule in some recent high profile cases.
"I think the commission works best when it works with the full complement of five," Chairman Neil Chatterjee told reporters in September.
For example, a sweeping change in FERC oversight of the power sector should not be approved without support from a full commission, he said.
"I think for a [certificate] policy statement to have value, to have durability going forward, I believe that it should be a full complement of five and it should be unanimous."
However, he added that a full commission was "not necessary on all fronts."
Danly will be nominated to serve on FERC through June 30, 2023, completing former Chairman Kevin McIntyre's five-year term. Prior to serving as general counsel on FERC for the past two years, he was an associate at Skadden, Arps, Slate, Meagher and Flom, which represents a number of parties in FERC dockets, including various generators participating in the PJM Interconnection.
Skadden has a long history of representing energy generators in regulatory matters. Senators are expected to ask about Danly's work at the firm during the upcoming nomination process. Specific questions may range from support of pipeline development to the California energy crisis, based on Skadden's recent involvement in FERC cases.
One is better than none?
Senate Energy and Natural Resources Committee Chairman Lisa Murkowski, R-Alaska, welcomed the nomination "to fill a critical seat that has been vacant" since McIntyre died on Jan. 2. The committee overseeing FERC needs to receive a formal nomination and other associated paperwork before scheduling a hearing for Danly, she said in a statement.
Murkowski would consider a Republican nomination without a Democratic pair in order to fill the vacancy, she told Politico this week. In February, she told reporters she was "frustrated" with an increasing "backlog" of projects awaiting FERC action as the commission was deadlocked two-to-two.
The White House did not respond to requests for comment on Danly's nomination and the potential nomination of a Democratic candidate.
Clements is the president and founder of energy regulatory consulting firm Goodgrid and former director of the Sustainable FERC program at the Natural Resources Defense Council. She interviewed with the White House in February and had received preclearance by the time Democratic FERC Commissioner Cheryl LaFleur retired from the agency at the end of August, according to multiple sources who declined to speak on the record due to the sensitivity of the matter.
Senate Minority Leader Chuck Schumer, D-N.Y., also supported Clements' nomination, E&E reported last February.
Advanced Energy Economy hopes Murkowski will "continue to look to the administration to also send over a second nominee," according to the group's managing director and general counsel Jeff Dennis. "We think it's pretty important that we see FERC at full strength and ... really commend Senator Manchin and Senator Schumer for recognizing that there's a long Senate tradition here when there is an opening on the commission within each party that those nominees be paired."
Murkowski has "long respected those traditions and supported them and also supported the need for a full five-member FERC," he told Utility Dive.
FERC is allowed to have three majority-party and two minority-party commissioners. Administrations, including Trump's in 2017, had submitted partisan pairs of regulators whenever possible. Exceptions include when President George Bush nominated Republican picks to FERC because two Democratic commissioners were already serving.
The bipartisan pairing of FERC commissioners is "one of those really important Washington institutions to preserve and keep the agency unbiased," Rob Gramlich, former FERC staffer and founder of consulting firm Grid Strategies, told Utility Dive.