Week Ending December 4, 2020

With Clements, Christie Confirmed by Senate, Debate Turns to Next Chairman

This Article Appears as Published in Foster Report No 3327
With Clements, Christie Confirmed by Senate, Debate Turns to Next Chairman

With Allison Clements and Mark Christie confirmed by the Senate and in line to take open seats at FERC, attention has turned to who will become chairman in 2021 once Joe Biden is in the White House.

Several sources expect Biden to name Commissioner Richard Glick chairman, but they acknowledged they based that on hunches, without insight from the transition team put together by Biden and Vice President-elect Kamala Harris.

The transition team has put together groups to review federal agencies and the group reviewing FERC, the Department of Energy (DOE) and the Nuclear Regulatory Commission includes Adrianna Quintero of The Energy Foundation, where Clements once worked. That may work in Clements’ favor to become chairman, but a president can choose the chairman at FERC for any reason. “Until the decision is made, we’re all just speculating,” said one industry source who asked not to be named.

The Senate confirmation of Clements, a Democrat, and Christie, a Republican, puts FERC in line to have a 3-2 Republican majority, with Glick the other Democrat and Chairman James Danly and Commissioner Neil Chatterjee Republicans. Chatterjee’s term is set to expire June 30, 2021, and he has said he will serve his full term, and can stay longer if a successor is not in place. That opening will allow the Biden administration to nominate a Democrat, with Senate confirmation possibly difficult for a more progressive on energy and environment issues given the makeup of the Senate.

With his experience at FERC, having come in with former Chairman Kevin McIntyre at the end of 2017, “Glick has a bit of a head start” on gaining the chairman’s gavel over Clements, said Tyson Slocum, director of the energy program at Public Citizen. Both Glick and Clements would be fantastic in the chairman spot, said Slocum.

Slocum pointed out that under former President Barack Obama, the selection of FERC Chairman Jon Wellinghoff, who was plucked from Nevada, came at the request of then-Senate Majority Leader Harry Reid (D-Nev.). Obama’s other selection of former Chairman Norman Bay also resulted in a political bargain struck in the Senate, with an agreement to have Cheryl LaFleur be chairman for an extended period before handing the gavel to Bay in 2015.

Senate Minority Leader Charles Schumer (D-N.Y.) made clear he wanted Clements nominated for the open Democrat seat at FERC, but the Senate’s influence may be different in the selection of FERC chairman by Biden administration, Slocum suggested. “This will be a situation where the inner circle of Biden’s team will make that decision,” he said.

Glick, who served two stints in the Senate and has experience at DOE and in the energy sector, is serving a term that expires in the middle of 2022. A spokesman for Glick said it is up to Biden to choose who will chair FERC in the incoming administration. “In the meantime, Commissioner Glick is focused on the ongoing work at the Commission and is preparing for the December Commission meeting,” the spokesman said.

The last time a Democrat President selected a chairman from among sitting commissioners without Senate actions coming into play was Bill Clinton’s choice of James Hoecker in 1997. When former Chair Elizabeth Moler announced her departure in 1997, many FERC observers expected William Massey to be named chairman due to his Arkansas connections with Bill and Hilary Clinton. Clinton chose Hoecker, however, showing that a lot can happen behind the scenes before the White House selection is made.

Another possibility for the Biden administration is that Danly may choose to resign to allow the administration to choose a Democrat and provide a 3-2 majority for Democrats at FERC. “It is customary but not required that a chairman appointed by an outgoing administration to tender his resignation to allow a new president to fill the seat and change the majority on the five-member Commission,” said Christine Tezak, managing director at ClearView Energy Partners.

The current chairmen at two other independent agencies, the Securities and Exchange Commission and the Federal Communications Commission, have both indicated that they plan to resign by the end of the year to clear the way for a Biden appointee, Tezak pointed out.

Danly’s term extends through June 30, 2023, and he has given no indication of his intentions. If he does step down before or shortly after Biden is sworn in, it presents the possibility that Biden could choose a new nominee to become chairman, making Glick or Clements chairman on a temporary basis, pending Senate confirmation of the nominee.

As President Donald Trump has demonstrated a couple times during his administration, FERC is an agency where the chairman post can be selected for any reason among the sitting commissioners, with no Senate action required. Danly was named chairman November 5, with Chatterjee moving to the commissioner role.

“I am delighted that our two new colleagues have been confirmed and I look forward to working with them,” Danly said in a statement. Chatterjee and Glick also issued welcoming remarks and congratulations on Twitter.

The Senate may be known for taking its time to get things done, but it wasted no time in approving Trump nominees Clements and Christie. A voice vote on the Senate floor November 30, the first day the Senate was back in session following a holiday break, cleared the way for Clements and Christie to move to FERC.

Christie, chairman at the Virginia State Corporation Commission (SCC), intends to take his oath of office to join FERC on January 4, 2021. He has confirmed his plans with Danly, according to SCC spokesman Ken Schrad.

The oath of office ceremony will be at 2 p.m. eastern, and it will be webcast from an SCC courtroom, Schrad said in response to questions on Christie’s move from the SCC to FERC.

When Clements intends to be sworn in at FERC is not known at this time. She has served as founder and president of Goodgrid LLC, a consulting firm, and had roles with the Natural Resources Defense Council and The Energy Foundation, which advocates for clean energy, along with being an attorney in private practice.

While the Senate vote took place late in the day November 30, there is paperwork to be completed by the White House and Clements and Christie. Glick and McIntyre were confirmed together by the Senate on November 2, 2017, with Glick being sworn in November 29 and McIntyre doing so December 7 of that year.

The Senate approval means Clements and Christie will join the three current members of FERC, giving a full complement of five commissioners for the first time since the summer of 2018. Former Commissioner Robert Powelson, who was a state regulator in Pennsylvania before being nominated by Trump for an open FERC seat, stepped down on August 10, 2018, and Christie will bring state regulatory experience back to FERC.

The head of the National Association of Regulatory Utility Commissioners (NARUC) was among those welcoming the Senate vote. “A full complement of commissioners is essential to adjudicate the myriad issues that are before the agency. We look forward to continuing to engage FERC members on matters that are of importance to state regulators,” said Paul Kjellander, president of NARUC and of the Idaho Public Utilities Commission.

Energy groups and others were pleased with the Senate confirmation of Clements and Christie. The American Petroleum Institute, Interstate Natural Gas Association of America, American Council on Renewable Energy, Natural Gas Supply Association and others issued statements that they are pleased FERC will have a full complement of five commissioners.

Christie has been at the SCC, where commissioners are referred to as judges, for 16 years, with approval through bipartisan votes of state lawmakers several times. The chairman post at the agency rotates among commissioners on an annual basis, so a new chairman will be named in 2021, Schrad noted.

By Tom Tiernan ttiernan@fosterreport.com

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