Week Ending July 31, 2020

Eyes Turn to Senate After White House Forwards Nominations for Clements, Christie at FERC

This Article Appears as Published in Foster Report No 3310
Eyes Turn to Senate After White House Forwards Nominations for Clements, Christie at FERC

The ability of the Senate to confirm two nominations for FERC commissioner spots is gaining attention after the July 29 announcement by the White House that is has forwarded the nominations of Allison Clements and Mark Christie to the Senate.

The move came on the heels of the July 27 announcement by the White House that President Donald Trump intends to nominate Clements, a Democrat, and Christie, a Republican who is chairman of the Virginia State Corporation Commission (SCC), for two commissioner openings. That announcement caught many by surprise, though several sources said they expect the Senate to approve both nominees this fall.

Forwarding the nominations to the Senate took place faster than previous moves where the intent to nominate someone for a position is announced and there is a delay while background checks and vetting take place. The developments indicate that vetting on Christie has been completed and he is able to prepare for the confirmation process.

Clements has been favored by Democrats for a nomination and went through vetting previously, when the White House declined to pair her with Commissioner James Danly for a vacant seat at FERC.

The White House nominated Christie for a term expiring June 30, 2025, in the spot currently held by Commissioner Bernard McNamee. McNamee’s term has expired and he notified the White House he would not seek a second term. He can continue to serve at FERC until a replacement is sworn in or the current session of Congress ends.

McNamee has given no indication of how long he intends to stay at FERC, though in June he said he plans to continue as a commissioner for the foreseeable future. McNamee said he will recuse himself from proceedings if needed as he pursues work outside of the Commission, but he has not done so yet.

Clements is nominated for a term that expires June 30, 2024, filling the vacancy created when former Commissioner Cheryl LaFleur left FERC in August of 2019.

The pairing of the two is expected to enhance the prospects for gaining Senate confirmation for both of them, sources said. The possibility that FERC could have a full quorum heading into the fall election cycle was welcomed by many inside and outside of government. Current commissioners at FERC and energy industry groups expressed praise for Clements and Christie, with energy groups expressing hope for Senate confirmation for both of them.

Christie has been at the SCC since 2004, where the chairmanship rotates annually among the three commissioners. He was re-elected by the General Assembly in 2010 and 2016. He is not speaking with reporters at this time, said Ken Schrad, a spokesman for the SCC.

Several sources said he is a no-nonsense regulator and a strong advocate for states’ rights. That role could be important given some of the federal and state power market issues facing FERC, they noted.

Christie served as an officer in the Marine Corps, and he is a former president of the Organization of PJM States (OPSI), the collection of states monitoring activities and having a stakeholder role at PJM Interconnection.

That OPSI role or his comments on PJM matters may have Christie recuse himself on PJM cases at FERC if he were to be confirmed, but the need for such recusals is not likely, a few sources said after the White House announcements. Recusals from Christie on PJM matters, where compliance filings with the minimum offer price rule (MOPR) orders from FERC are closely watched, would be a personal decision, though it could be fodder for questions in the Senate.

At the Senate Energy and Natural Resources Committee, Sen. Joe Manchin (D-W.Va.), ranking member on the panel, said he is looking forward to reviewing the qualifications of Clements and Christie when they come before the committee. “In a political climate that is often paralyzed by partisanship, a bipartisan FERC is more essential than ever,” Manchin said in a statement.

Clements is well known to the Senate committee, since she has been the preferred nominee of Democrats to fill the vacancy that has gone unfilled since LaFleur left in the second half of 2019. The White House declined to pair Clements with a Republican, however, when Danly was nominated in 2019 and confirmed earlier this year.

Sen. Lisa Murkowski (R-Alaska), who chairs the committee, did not have a statement on the nominations but she has indicated a strong desire for a full complement of commissioners at FERC in the past. She moved quickly to act on previous FERC nominations, although sometimes had to deal with paperwork delays from the White House.

A crowded Senate calendar, with COVID-19 relief and an election year taking up plenty of time, may not hinder Senate from confirming both Christie and Clements, sources said. The committee could consider the nominations relatively soon and move them for consideration on the Senate floor by early October, said Christine Tezak, managing director at ClearView Energy Partners LLC.

A Senate confirmation vote before the presidential election is likely, added two other sources who asked not to be named.

Even if Trump loses the presidential election, the Senate could confirm both of the nominees during a lame duck session, Tezak added. “While there is a possibility that the nominations could be set aside should Joe Biden prevail in November, the absence of a filibuster and the pairing of the two nominees makes it more likely, in our opinion, that the Senate could confirm Christie and Clements before the end of the year,” she said.

The current makeup at FERC has three Republicans – Chairman Neil Chatterjee with McNamee and Danly — one Democrat, Commissioner Richard Glick, and a vacancy that has gone unfilled since LaFleur left nearly a year ago.

When Danly was going through the confirmation process, Manchin indicated that he would not support a new Republican nominee from the White House unless that person is paired with Clements, who had been vetted and gained support among Democrats. He thanked Trump and the White House for nominating a Democrat and Republican “because it is an important step towards restoring a fully seated Commission.”

Chatterjee, McNamee and Glick posted congratulatory notes to Christie and Clements on Twitter.

McNamee worked for the Attorney General’s office in Virginia and represented clients in private practice. He indicated in a statement to The Foster Report that he has known Christie for 25 years, including representing clients before him at the SCC. “I am confident that his keen intellect, good judgment and substantive experience with energy regulation will benefit FERC and the country,” McNamee said.

Former Commissioner Colette Honorable wrote that “both are knowledgeable and experienced” and she is “hoping for speedy confirmations” for them.

Honorable, who served as state regulator in Arkansas before being nominated by former President Barack Obama for a commissioner spot she left in 2017, would recuse herself from items involving Entergy Corp. or other matters at FERC where she participated as state regulator while at the Arkansas Public Service Commission.

Former FERC member Robert Powelson did not recuse himself from FERC votes on PJM matters after he came to FERC from the Pennsylvania Public Utility Commission. The decision to recuse on matters at FERC is a personal one and can have more to do with the particular regulatory items addressed at the state level, sources said. The Arkansas PSC oversight of Entergy is much more direct and different than the Virginia SCC and PJM, though OPSI has a bit different role.

In his bio on the SCC website, it notes that Christie’s term as president of OPSI included litigation to protect the independence of the PJM market monitor, with service on the OPSI board for more than a decade. Christie’s term as president of OPSI was in 2007, noted Schrad of the SCC, who referred to OPSI officer documents.

If the Virginia SCC intervened in the PJM MOPR compliance proceedings, it could cause Christie to consider recusing from a subsequent FERC order, assuming he is confirmed by the Senate, said a pair of sources who asked not to be named. Christie’s participation at FERC could be key if Clements follows the views of Glick, who dissented on FERC’s orders in the PJM MOPR proceedings, the sources said.

Christie’s experience, along with Clements, will be valuable and “both will do a great job,” at FERC if they gain Senate approval, said Tyson Slocum, director of the energy program at Public Citizen. In a post on Twitter, Slocum said the White House intent to nominate them pairs “two well-regarded folks” to serve at the Commission.

In a brief interview, Slocum said he does not believe Christie’s role at the SCC would cause an impediment for him to participate in PJM proceedings at FERC. Without commenting on the prospects for Senate confirmation, Slocum said “I don’t see Mr. Christie having a restricted participation on PJM-related issues.”

Other groups expressed support for both Christie and Clements. “Filling the Commission with a slate of qualified regulators is critical and timely,” as there are many important items before FERC and a full slate of commissioners benefits everyone, said Todd Snitchler, president and CEO of the Electric Power Supply Association.

“We hope the Senate can swiftly confirm these two strong candidates, so FERC can be best positioned to achieve its mission,” said Gregory Wetstone, president and CEO of the American Council on Renewable Energy.

Clements is founder and president of Goodgrid LLC, an energy policy and consulting firm based in Salt Lake City, Utah. She had previous roles as director of the energy markets program at the Energy Foundation and at the Sustainable FERC Project within the Natural Resources Defense Council. Clements also was in private legal practice at Troutman Sanders LLP and Chadbourne & Parke LLP, which is now Norton Rose Fulbright, the White House noted in the announcement.

By Tom Tiernan ttiernan@fosterreport.com

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