Week Ending March 6, 2020

Senate Panel Clears Danly Nomination; FERC, Nomination Process Blasted by Democrats

This Article Appears as Published in Foster Report No 3289
Senate Panel Clears Danly Nomination; FERC, Nomination Process Blasted by Democrats

Senate Energy and Natural Resources Committee on March 3 approved the nomination of James Danly to be a commissioner at FERC. The move had some posturing and comments from Democrats on the committee that they are not pleased with the White House not putting forth a Democrat nominee.

Sen. Martin Heinrich (D-N.M.) also had some harsh words for the way FERC is operating and the capacity market decisions involving PJM Interconnection and New York Independent System Operator (NYISO). “FERC is not working today” and it’s sad how the Commission has changed from one that used to be an agency where members worked together in a bipartisan fashion, Heinrich said before the vote on the Danly nomination.

“It used to be a real regulatory agency,” but has become a political ping pong match “like everything else around here,” Heinrich said. The FERC capacity market orders on PJM and NYISO that go against state clean energy preferences are “reprehensible,” he said.

Commissioner Richard Glick on March 4 said he approached Chairman Neil Chatterjee after the last open meeting and discussed efforts to improve the working relationship among the three current members. Glick, the lone Democrat commissioner at FERC, said he was rather despondent after the last meeting, where he dissented on 15 orders, and asked Chatterjee if they can improve the situation. It is not only about partisan issues, but scheduling items or holding votes without informing him, Glick told reporters after speaking at an event.

“We realize that we kinda have a black eye” and things are not working as well as they should at the Commission, Glick said. He gave Chatterjee credit for saying that the commissioners have to improve the situation. “I hope we will have a better working relationship,” Glick said.

When Danly will be involved in that relationship as a commissioner is still dependent on a vote by the full Senate.

Danly is currently general counsel at FERC, and he was picked by the White House to fill the term of former chairman and commissioner Kevin McIntyre. The committee vote on the nomination was 12-8, with Sen. Joe Manchin (D-W.Va.) siding with Republicans to approve the nomination. Manchin made a commitment to Danly that he would support the nomination because Manchin believes he is qualified for the commissioner position and did not want to penalize Danly for the actions of the White House.

Sen. Ron Wyden (D-Ore.) spoke before the vote was taken, urging Senators not to “stack the deck” at FERC, with three Republicans and one Democrat. He noted that the Jordan Cove LNG project and related pipeline planned to be sited on the Oregon coast is opposed by many parties in the state.

Wyden also referenced the history of FERC as a bipartisan agency, adding that the committee should not approve Danly until there is a Democrat nominee for the vacant Democrat spot vacated by former commissioner Cheryl LaFleur. Adding another Republican is a mistake, he said.

Even though Senate Democrats have forwarded the name of Alison Clements to fill LaFleur’s seat, their suggestions have not resulted in a nomination from the White House, which has added to the political angst in the nomination process. When Danly’s nomination was put forward, Democrats complained about the White House not pairing him with Clements. She has been vetted by the White House and met with White House officials, senators noted during the meeting.

When other senators on the committee – including Angus King (I-Maine) and Maria Cantwell (D-Wash.) — raised concerns, Chairman Lisa Murkowski (R-Alaska) said she can only act on nominations that come from the White House. She has urged Trump administration officials to nominate people for the vacancies, she said.

Murkowski said she has placed a priority on filling vacant spots and that Commissioner Bernard McNamee, a Republican, announced he would not seek another term, so there will be two vacancies to fill at some point. “I’m ready, willing and able” to act on a nominee that comes before the committee, but the committee cannot do anything if there are no nominations coming from the White House, she said.

With Danly’s approval by the committee, there is no incentive for the White House to send another nominee because “we’ve given them what they wanted,” King said shortly after the vote was taken. The only influence senators have in the process is to not act on nominees and “we just gave up our influence,” he said.

Manchin expressed disappointment about the White House failing to nominate a Democrat and defended his vote for Danly. Stating that going back on a commitment to support Danly as a result of White House inaction would be wrong, Manchin said “two wrongs don’t make a right.” He deemed it “absolutely horrible what’s going on right now” with the politics of the nomination process.

Manchin noted that McNamee intends to leave the Commission, though he can stay through most of 2020 if he chooses to stay until the end of the current session of Congress. He said FERC functions best with a full complement of five commissioners, and once McNamee leaves it would be down to the bare minimum of three again, assuming the full Senate approves Danly.

Manchin committed to King that he will fight for the pairing of a Democrat and he would not vote for another Republican at FERC until a Democrat nomination comes from the White House. Manchin said he voted for Danly on the basis of his qualifications and “I implore my colleagues on the other side of the aisle to do the same when we receive the qualified nominee for the open Democrat seat.”

Heinrich and Cantwell spoke about FERC being subject to political maneuvering, with Heinrich saying the actions of the current Commission are “on all of us. I think we can do a lot better and there was a time when nominees to the FERC moved forward together and members of the FERC actually worked together. That is not the case today,” he said.

By Tom Tiernan ttiernan@fosterreport.com

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