Week Ending November 6, 2020

Trump Names Danly Chairman at FERC, Putting Chatterjee as Swing Vote

This Article Appears as Published in Foster Report No 3323
Trump Names Danly Chairman at FERC, Putting Chatterjee as Swing Vote

A shakeup at FERC accompanied President Donald Trump’s arrival in Washington in 2017 and it is taking place again shortly after the election, with Trump on November 5 naming Commissioner James Danly as chairman.

Former Chairman Neil Chatterjee vowed to fulfill his term at the Commission, which expires June 30, 2021. Chatterjee congratulated Danly on his appointment and said the Commission would be well-served with Danly as chairman.

In a brief interview with the Foster Report on November 6, Chatterjee said he did not receive any notice from the White House of an impending change.

FERC is an agency where the president can change the chairman post at any time and for any reason. There was no official statement from the White House explaining the move, though Washington energy sources have plenty of speculation.

Among the theories are recent actions at FERC on carbon pricing in wholesale power markets and accommodating distributed energy resources in Order 2222. Danly dissented in part on the proposed carbon pricing policy statement and dissented on Order 2222 because he felt FERC was moving too far away from its statutory authority and interfering with state authority on resource choices.

Trump may view Chatterjee as moving too far from a role the White House envisions for the agency, one source suggested November 6. “No one really knows” what drove the change except the White House, countered another source who asked not to be named.

During the interview, Chatterjee said he is proud of his track record as chairman and if the steps on DER and the carbon pricing policy statement are what prompted the change from the White House, it was worth it. “I knew I was sticking my neck out there a little bit” with the carbon pricing plan and Order 2222. “I knew there was some risk of blowback,” he said, noting that he has heard nothing from the White House on the reason for naming Danly chairman.

Chatterjee, who served on the staff of Senate Majority Leader Mitch McConnell (R-Ky.) for an extended period before being nominated by Trump to serve at FERC, said he does not have any insight into whether the Senate may confirm Trump’s latest nominees – Mark Christie and Alison Clements. Chatterjee has committed to filling out his term at the Commission and could serve beyond the expiration if a successor is not in place. “I’m not going to leave the Commission, or the country, without a quorum at FERC,” he said.

If the presidential election results continue the vote-counting trend and Joe Biden wins control of the White House with a Republican majority in the Senate, it would put Chatterjee “squarely at the center of the debate” between Democrat’s clean energy agenda and Republican views, Chatterjee noted. “That is a pretty exciting prospect” and he is eager to serve in that role, he said. “I might be the most pivotal person in this debate,” he said.

The prospects for that could play out regardless of Senate action on Christie and Clements, since the current makeup at FERC has Danly and Chatterjee as Republicans and Commissioner Richard Glick, a Democrat.

Chatterjee said he had a “fabulous conversation” with Danly, who served as general counsel at the Commission before being confirmed as commissioner in the spring of 2020. Serving as chairman at FERC will be great for Danly, even if it’s only for a short period if Biden gains control of the White House and selects a new chairman, Chatterjee said.

The change is effective immediately.

Rep. Frank Pallone (D-N.J.) criticized Trump’s move as “an outrageous attack on an independent agency at a time of transition.” Pallone, who chairs the House Energy and Commerce Committee, also said Danly has “views far outside the mainstream of both parties on energy policy” and that FERC should halt all work on controversial activities until a new president is sworn in.

The ripples of the move could affect the Senate confirmation prospects of Trump nominees Christie and Clements. Christie, a Republican, and Clements, a Democrat, essentially breezed through their Senate committee confirmation hearing in September and could be confirmed during a lame duck session of Congress that starts November 9.

McConnell could seek to move Christie and Clements for a full Senate confirmation vote before the end of the year to provide FERC with three Republicans and two Democrats. Because Chatterjee has committed to fill out his full term, confirming Christie and Clements would limit a chairman appointed by Joe Biden, if he wins the election, from carrying out an agenda without Republican support, though that dynamic is in play even without two new commissioners since the current makeup is two Republicans and one Democrat, commissioner Richard Glick.

The lame duck session “provides ample time” to confirm Christie and Clements if the Senate Energy and Natural Resources Committee, chaired by Sen. Lisa Murkowski (R-Alaska), schedules them for a committee vote, said Christine Tezak, managing director at ClearView Energy Partners.

Tezak suggested two scenarios for FERC, depending on the final outcome of the presidential election. If Trump gains an election victory, Danly as chairman could seek to keep the Commission within what he views as the limits of its statutory jurisdiction. If Christie joins FERC “we will be watching to see whether he shares Danly’s views on the limits of the Commission’s jurisdiction or has his own approach, colored by his 16 years as a state commissioner in Virginia,” Tezak said.

The other scenario has Biden winning the election and selecting Glick as chairman, or perhaps Clements as chairman if she is confirmed. “We would expect a Biden White House to pass the gavel to either Glick or Clements,” Tezak said November 6.

Glick has often dissented on FERC orders approving natural gas pipeline projects and rulings on capacity markets for independent system operators. On Twitter, Glick posted a statement that commissioner votes are based on judgement and facts, independent of party affiliation or political pressure. Glick said he knows Chatterjee arrived at his views honestly and independently, and he appreciated Chatterjee’s “willingness to ignore party affiliation and work with me on several key initiatives that will prove beneficial to this nation.”

Glick also congratulated Danly. “We have worked well together since he became a commissioner earlier this year and I look forward to continuing that cooperation as we move forward,” said Glick.

The changing leadership at FERC has been in play quite a bit under the Trump administration. In early 2017, former FERC Chairman Norman Bay was replaced as chairman when Trump named Cheryl LaFleur chairman shortly after his inauguration. Bay then resigned in late January, giving notice that his last day would be February 3, 2017. The Commission approved several natural gas pipeline projects and took other moves before losing a quorum for an extended period in 2017, since there were two commissioner vacancies when Bay left the agency.

Chatterjee was nominated later that year and served as chairman for two different stints, coming before and after the tenure of Chairman Kevin McIntyre.

In the November 5 statement, Danly said “It has been my utmost pleasure to have served under Neil Chatterjee, both as General Counsel and alongside him as Commissioner.” He said, “I have learned a tremendous amount from his expertise and insight, and I am proud of the work we’ve been able to accomplish under his thoughtful watch.”

Danly said Chatterjee “has truly left his mark on FERC and the energy sector” by brokering an agreement to allow FERC approval of LNG export projects and other matters, such as modernizing implementation of the Public Utility Regulatory Policies Act.

“I thank Neil for his leadership, and I look forward to continuing to work with him in this new role,” said Danly.

“It’s been the honor of a lifetime to serve as the Chairman of FERC alongside my colleagues and staff, who represent some of the most talented and hardworking professionals in the U.S. government,” Chatterjee said in the statement.

By Tom Tiernan ttiernan@fosterreport.com

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