Trump Administration Nominates Two to FERC, Could Restore Commission to Full Strength
On July 27, 2020, President Trump nominated Allison Clements and Mark Christie for seats on the Federal Energy Regulatory Commission (FERC). If approved by the Senate, the nominations would return the Commission to full strength for the first time in several years. Given that it generally takes several months for FERC nominations to be vetted and gain Senate approval, it is unclear whether these nominations will be approved before the current session of Congress expires.
Ms. Clements, the Democratic nominee, is an attorney with extensive experience in the energy industry, including serving as Director of the Natural Resource Defense Council’s Sustainable FERC Project. If approved, she would fill a vacant seat on the Commission.
Mr. Christie has served for the past 16 years on the Virginia State Corporation Commission, which regulates the state’s utilities. He has also played a number of important regional roles, including serving as President of the Organization of PJM States, which represents the interests of affected states in operation of the PJM Interconnection, the regional transmission organization that serves the Mid-Atlantic region. If confirmed, Mr. Christie would fill the seat of Commissioner Bernard McNamee, whose term expired in June, although he will continue to serve until either Mr. Christie is confirmed by the Senate or the current Congressional term ends.
The paired nomination follows a practice that has become regularized in recent years of jointly nominating a Democrat and a Republican together when the Commission has two or more open seats. The current 3-1 partisan split on the Commission occurred when the Trump Administration departed from this practice to nominate Commissioner James Danly without a paired nomination of a Democrat. While Mr. Danly’s nomination was ultimately confirmed, it drew considerable criticism as inconsistent with FERC’s charter, which requires that the Commission operate with partisan balance, with no more than three of the five Commissioners permitted to be from one political party.
The nominations create the potential for the unusual situation of a 3-2 Republican majority remaining for several months into a new Democratic administration. Neil Chatterjee, FERC’s current Chairman, could serve until June 2021, when his term expires, even if Democrats capture the White House in November’s elections. If this occurs, it is uncertain whether Chairman Chatterjee would elect to serve out his term, particularly given that a new Democratic administration would have the right to name a new FERC Chair, with considerable power to steer the agency’s agenda. However, if the White House does change hands, a new majority would be in the offing, with significant changes in the agency’s direction, particular on controversial issues like FERC’s recent PURPA rulemaking, where partisan politics play a major role.
Finally, it is worth noting that the nominations, if approved, would likely prevent the loss of a quorum at FERC. In the early months of the Trump Administration, after holdover Commissioner Norman Bay resigned, the agency lacked a quorum, rendering it unable to act for several months.
Beveridge & Diamond's Electric Power, Oil & Gas, and Renewable Energy practice groups advise clients on all environmental, land use, and project development issues impacting the energy industry. For more information, please contact the author.