Week Ending October 4, 2019

With Danly Nomination for FERC Announced, White House Breaks Pairing Tradition

This Article Appears as Published in Foster Report No 3268
With Danly Nomination for FERC Announced, White House Breaks Pairing Tradition

From a White House that does things its own way and breaks precedent often, the announcement of the intent to nominate FERC General Counsel James Danly for the Republican slot of the two vacant commissioner seats is not a surprise.

But it still stirred up angst among Democrats, environmental groups and those who support bipartisanship by leaving the Democrat (or Independent) commissioner slot vacant. The move, announced late September 30, breaks from a tradition of pairing a Republican and a Democrat to ease the Senate confirmation process and appease both political parties.

Within the Trump administration, Energy Secretary Rick Perry has avoided controversy for the most part, though his trips to Ukraine in have made him the target of congressional inquiries related to a whistleblower’s allegation that President Donald Trump sought assistance from Ukraine President Volodymyr Zelensky on Democrat presidential candidate Joe Biden. Speaking at an event October 2, Perry said he will work with Congress to answer any questions related to Ukraine.

Late October 3, the Washington Post and Politico reported that Perry intends to leave the administration before the end of the year. Citing unnamed sources, the news outlets said Perry would step down as energy secretary, with sources suggesting a November departure unrelated to the Ukraine controversy to Politico, and an exit by the end of 2019 in the story by the Washington Post.

At FERC, the two vacancies for the White House to fill are those of former Chairman Kevin McIntyre, a Republican who died January 2, and Democrat Cheryl LaFleur, who left the agency in August but gave notice of her plan months ahead of time.

Senate Minority Leader Charles Schumer (D-N.Y.) supports the nomination of Allison Clements, an attorney formerly with the Natural Resources Defense Council (NRDC), and has forwarded all of her required paperwork and background checks to the White House. The White House is simply refusing to nominate Clements, and it is not clear if she will be nominated anytime soon, said sources who asked not to be named.

The White House did not have a comment on whether a nomination of Clements would be forthcoming.

Several groups and Democrats, including Sen. Joe Manchin (R-W.Va.), the ranking minority member on the Senate Energy and Natural Resources Committee, showed their frustration with the plan to nominate Danly without a Democrat counterpart for the other vacant seat at FERC. Senators can place a hold on the nomination of Danly, once the nomination paperwork is forwarded to the Senate, but at this point it is not known what measures may be taken by Democrats to try and have the White House nominate Clements.

Pairing of nominations is done at most agencies – not just FERC — when there are Republican and Democrat vacancies, and presidents of both parties have used the measure when either party is in the majority in the Senate. At the Commission, such pairings over the past 20 years or so have included McIntyre with Democrat Richard Glick; John Norris with Tony Clark; Philip Moeller with LaFleur; Joe Kelliher with Suedeen Kelly; and Curt Hebert with Linda Breathitt.

“I am disappointed that the president has only announced his intention to nominate a Republican commissioner,” Manchin said in a statement. “FERC has a strong history of operating in a bipartisan fashion and failing to honor the tradition of bipartisan pairing sets a dangerous precedent moving forward. I remain hopeful that the administration will quickly nominate a Democratic commissioner so we can consider nominations for both vacancies together and restore a fully functioning FERC,” he said.

Danly’s nomination should not go forward until he is paired with Clements, said Tyson Slocum, director of the energy program at Public Citizen.

Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, welcomed the announcement of the intent to nominate Danly, noting that the Republican seat has been vacant for nine months. “We will need to receive both a formal nomination and all associated paperwork before proceeding to a hearing, which has not been scheduled at this time,” she said.

Murkowski may be able to move Danly’s nomination through the committee, once it receives the required paperwork, but getting a floor vote in the Senate will be a challenge, especially if he is not paired with a Democrat, sources said. Scheduling of nominations in the Senate calendar is often challenging, and when there is controversy that increases the difficulty, they noted. Several who would like to see Danly seated at FERC soon – given the quorum concerns and recusal commitment of Glick on matters where his previous employer, Avangrid or any subsidiaries, is involved – said if Danly is sworn in before the end of 2019 it would be a pleasant surprise.

Danly came to FERC as general counsel in September of 2017. Prior to being named general counsel by Chairman Neil Chatterjee, he was an attorney at Skadden, Arps, Slate, Meagher and Flom LLP. His background includes work as managing director of the Institute for the Study of War and a fellowship at the Council on Foreign Relations. Danly is a former U.S. Army officer who served two deployments in Iraq, receiving a Bronze Star and a Purple Heart.

NRDC and the Union of Concerned Scientists had statements about the confirmation process for Danly, with UCS questioning his qualifications and both groups asserting that he should not move forward as a lone nominee.

“The nomination of only one commissioner when there are two vacancies reflects a further erosion of long-standing norms and undercuts the independence and bipartisan decision making at FERC,” said John Moore, director of the Sustainable FERC Project within NRDC. “The White House needs to nominate — and the Senate needs to consider — two nominees for two vacancies,” said Moore.

Danly is “woefully underqualified for the job” of commissioner and his inexperience “increases the risk of a Commission unable to defend consumers from biased and politically motivated attacks on our regulatory structure,” said Sam Gomberg, senior energy analyst at UCS.

The White House decision to nominate Danly without pairing him with Clements “is a misguided move that would be a disaster for consumers, the climate and any remaining vestiges of independent and informed federal decision making over the nation’s energy sector. This is a dangerous precedent for either political party and will only add legal uncertainty to impending and future FERC decisions, Gomberg said.

By Tom Tiernan ttiernan@fosterreport.com

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