What’s Going On? The Quest for a Five Member FERC

With the Federal Energy Regulatory Commission now several weeks into collecting comments on DOE Secretary Rick Perry’s “rocket rulemaking” to address grid resiliency in organized capacity markets (FERC Docket No. RM18-1-000), one may wonder what has happened to the two commissioner nominations pending before the Senate, Democrat Richard Glick and Republican and soon-to-be Chairman Kevin McIntyre. Both nominees passed through the Senate Committee on Energy and Natural Resources’ review with unanimous bipartisan support in September. The nominees are needed to fill out the five-member Commission with three Republicans and two Democrats. And more importantly, the nominees are needed to help pour through the 690 sets of comments in the docket. So why haven’t they been seated yet?

(Spoiler Alert: Politics!)

As part of its confirmation of Commissioners Chatterjee and Powelson in August, Senate leaders struck a deal to advance the remaining Democrat and Republican nominees in tandem. President Trump announced his formal appointment of McIntyre and Glick to the Commission on August 2nd. This cleared the way to Senate confirmation of Chatterjee and Powelson the very next day by voice vote, and the FERC quorum was restored to everyone’s delight.

Glick and McIntyre appeared before the Senate Committee on Energy and Natural Resources a month later, on September 7th, and that committee promptly voted out and reported to the entire Senate for consideration on September 19th. At that point, everything was smooth sailing. Senator Murkowski proposed to confirm the nominations by unanimous consent….and fellow Republican Jim Inhofe – a Senator from energy resource rich Oklahoma – objected. Senator Inhofe’s objections have absolutely nothing to do with FERC or its agenda. Rather, as Senator Inhofe explained:

“Given the unprecedented obstruction by the Senate Democrats to President Trump’s nominees, I could not allow the confirmation of the pending Democratic FERC nominee [Glick] to move forward without more nominees included as well. The price was too low, particularly given the fact that there is an agency with only one political appointee confirmed.”

The agency he was referring to was the Environmental Protection Agency, an agency headed by fellow Oklahoman Scott Pruitt. Senate Democrats objected strongly to Michael Dourson to run the EPA chemicals office, and Bill Wehrum to lead the agency’s air office. This past Wednesday, October 25th, the Senate Environment and Public Works Committee voted along party lines (11-10) to advance the nominees, together with Matthew Leopold to be assistant administrator in the EPA general counsel’s office and David Ross as assistant administrator for the Office of Water. In all, there are 15 positions within the EPA that the Senate must confirm. Within FERC, it is only the 5 Commissioners that the Senate vets. Other positions, like the chief counsel, are selected by the Chairman, and Chairman Chatterjee has already done so.

With one roadblock down, it is still unclear if a deal that packages the EPA and FERC nominees, as well as other nominees, is in the works. Senate Democrats do not seem to be backing down over their objections to the EPA nominees, and there is a pending legal challenge to the Trump Administration under the Federal Vacancies Reform Act because Mr. Dourson is already working at EPA as a “special advisor” even as he awaits his Senate vote. Similar legal challenges were made under President Obama’s administration. Senate Democrats are also bemoaning Dourson’s ties to the chemical industry that he will be charged with regulating.

With the two-month delay in confirming the first two vacancies on the Commission, the debate over tax reform and the budget, and the glacial pace that the Senate is handling the other business before it, one would not be surprised if we will do not see the Commission restored to its five-member panel for several more months. Chairman Chatterjee is moving ahead. He testified before Congress in September and has separately laid out an agenda to address natural gas pipeline and hydroelectric project review, PURPA, energy storage, transmission incentives, and cybersecurity, among other issues. It may be that the DOE “rocket rulemaking” is considered by only three Commissioners, a fact that may sway the outcome given that the two Commissioners waiting in the wings have already stated that their charge in regulating the energy markets through FERC is not fuel specific, which directly contravenes Secretary Perry’s coal and nuclear-centric rule.

But for now, we’ll have to wait to see “what’s going on.”