Two nominees to the US Federal Energy Regulatory Commission were reported out of the Senate Energy and Natural Resources Committee by voice vote Nov. 18, moving a step closer to confirmation, although some senators opposed their advancement.
The confirmations would give the key energy market regulator a full complement of commissioners, with a 3-2 Republican majority, headed into the change in presidential administrations.
Senate Energy and Natural Resources Committee Chairman Lisa Murkowski, Republican-Alaska, said it was important for FERC to be fully staffed, given its demanding workload, and indicated she was voting in favor of both nominees to get the confirmations on the Senate schedule.
"It's perhaps too early to say what the floor schedule will allow in December, but if these nominees are confirmed, FERC would at least have a full complement the five commissioners headed into 2021, which is a far better place than the start of 2017," Murkowski said. A three-member FERC lost its quorum in early 2017 after Chairman Norman Bay stepped down after being displaced as chairman.
Timely decisions
"The dynamic industries that FERC regulates need timely decisions and a level playing field, especially in these challenging times," Murkowski added.
Five Republicans, including Senator John Barrasso, Republican-Wyoming, asked to be recorded as voting no on Democratic nominee Allison Clements, an energy lawyer and consultant who has worked with environmental groups. And Senator Mazie Hirono, Democrat-Hawaii, voted against Republican nominee Mark Christie, a long-time member and current chairman of the Virginia State Corporation Commission.
Committee Ranking Member Joe Manchin, Democrat-West Virginia, called both nominees well qualified and said action on FERC nominations should be distinguished from the kind of divisive partisanship that marked recent Senate debate over Supreme Court nominations.
Senator Maria Cantwell, Democrat-Washington, said she believed both nominees would be independent and professional at a key time during the energy transition when billions of dollars are being invested in diversifying and decarbonizing the nation's energy mix. It was particularly important that both candidates backed the use of FERC's anti-market manipulation tools, said Cantwell.
A paired path through Senate
While the committee action made clear some Republican opposition remains to Clements' confirmation, prospects for advancement in the Senate may be aided by having a Democrat and Republican pair.
Policy analysts have suggested that confirming the two nominees could help Republicans secure a 3-2 majority at FERC at least through June 2021, even though a Democratic chairman, once named, would still exercise power by setting the agenda. FERC is currently down to three commissioners, one Democrat and two Republicans.
Commissioner Neil Chatterjee was recently displaced as FERC chairman by James Danly, who previously served as FERC general counsel. Chatterjee has said he would serve out his term, which concludes at the end of June.
The prospect of having all five seats filled was welcomed by some industry advocates, especially following a period of ample turnover.
Mark Spitzer, a partner at Steptoe & Johnson and a former FERC commissioner, said having the additional policy advisors, including lawyers and engineers, at FERC associated with a full complement of commissioners helps produce the best results from a technical standpoint. "It's a lot better to have 20 people and 40 eyeballs than just 12 people looking at these orders," he said.
Kenneth Irvin, co-leader of Sidley's global Energy practice, said both candidates' commitment to bipartisanship and a technology-neutral approach would be important to FERC's functioning going forward as it faces tough issues ahead with a Biden administration aiming to make the power sector carbon-free by 2035, and a drive toward increased incorporation of electric vehicles.
Republican objections
Still to be seen is whether objections from some Senate Republicans would prevent the nominees from gaining floor time before the end of the session. Barrasso, one of the senators opposing Clements, is in line to be chairman of the energy committee in the 117th Congress, should Republicans retain control following Georgia's runoff elections.
A representative for Senator John Hoeven, Republican-North Dakota, who also voted against Clements, cited a need for FERC to act more urgently to stop the loss of baseload generation, such as coal-fired units.
"Senator Hoeven remains concerned that the nation's grid is being forced away from these important sources of affordable and always-available power and it is important that we confirm FERC nominees that support North Dakota's efforts to harness our energy resources with good environmental stewardship," Hoeven's office said in an email.
