Honorable’s Departure Adds Intrigue to Filling Vacancies at FERC

Energy trade groups, two key senators and others in Washington reacted to the news that FERC Commissioner Colette Honorable will not seek another term at the Commission, commenting that the latest development presents more of an urgency for the White House to fill commissioner vacancies at FERC.

Honorable’s decision, announced in an April 28 statement, leaves the White House with four vacancies to fill at the agency, which has been operating without a quorum since the resignation of former Chairman Norman Bay in early February of this year.

At the opening of a two-day FERC technical conference on wholesale power markets and state policies, Acting Chairman Cheryl LaFleur addressed Honorable’s decision, commended her on her public service and was clearly affected by the planned resignation.

“Where I’m going and when I’m going remains to be seen,” Honorable said at the technical conference, indicating that she would focus on her work at the Commission until she leaves. Although her term expires 6/30/17, Honorable can stay at FERC until a replacement is named or through the end of the current congressional session.

“It’s not good-bye. It’s I’ll see you around,” she told LaFleur and FERC staff at the technical conference.

Because the White House has not sent nominations to the Senate to fill the three existing commissioner vacancies at FERC, the prospect of having a lack of a quorum extend well into summer becomes more of a possibility if the Trump administration chooses to try and move four nominations through the Senate approval process. Adding a fourth commissioner nomination, which would take some time and involve political dynamics on Capitol Hill, could be done as part of a package or be completed after a quorum is restored through the filling of three existing vacancies.

Those three vacancies are expected to be filled by Neil Chatterjee, energy policy advisor to Senate Majority Leader Mitch McConnell (R-Ky.), Kevin McIntyre, an attorney and co-leader of the energy practice at the law firm Jones Day, and Commissioner Robert Powelson of the Pennsylvania Public Utility Commission (PUC). Those three have been the likely nominees for Republican commissioner spots at FERC for many weeks, with sources indicating that the vetting process and background checks are taking a while to gain clearance for the White House to send the nominations to the Senate.

Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, said it is “very frustrating” that the White House has not sent any nominations to the committee to go through the Senate confirmation process. “I’d like to see some names now,” Murkowski said at a May 3 event at the Center for Strategic & International Studies with Sen. Maria Cantwell (D-Wash.), ranking member on the committee.

Addressing reporters after the discussion, Murkowski said she has met with White House staff and President Donald Trump on several occasions and implored them to submit nominations for the FERC vacancies. “They agree FERC is a priority,” but “they’ve not shared with me” that the vetting is taking longer than expected or what exactly is holding up any paperwork being sent to the Senate. “I’ve not gotten any signals” from the White House that any of the three likely nominees has not passed vetting and background checks, Murkowski said.

Honorable has told senators that she is willing to stay at the Commission to aid in reaching a quorum if needed, Murkowski added.

“We can’t do much in the energy space until there is a quorum” at FERC she said during the discussion with Cantwell and CSIS host Sarah Ladislaw.

“Believe me, I am urging anyone who is listening that they need to get moving on it,” Murkowski said. Cantwell agreed and seconded that sentiment with an “Amen.”

Murkowski joked that when she meets with White House staff on the issue, they tell her “the nominees will be imminent. I say, ‘I have no idea who imminent is, but please just send the names so we can confirm them.’”

At a May 4 Senate hearing before the committee where LaFleur was on a panel testifying about electromagnetic pulses and their impact on the power grid, Murkowski told LaFleur that “we’d like to get you a quorum.”

By law, not more than three members of FERC can be from the same political party. The expected nominations of Chatterjee, McIntyre, and Powelson would provide FERC with a quorum to vote on matters that have been pending at FERC, with LaFleur serving in a term that expires on 6/30/2019.

It is possible that President Donald Trump could look to fill Honorable’s seat with a nominee who supports his policies, perhaps nominating an Independent who is sympathetic to his views as a way to adhere to the requirement that no more than three of the five commissioners at FERC can be from the President’s political party.

One industry attorney, William Scherman, partner at Gibson Dunn, minimized the possible impact Honorable’s decision would have on the timing of moving the expected three Republicans to FERC. “The White House is well aware of the need to restore a quorum at FERC as soon as possible,” said Scherman, a former general counsel at FERC.

Others had a slightly different take. “The prospect of losing Commissioner Honorable adds even greater urgency to the need for the White House to nominate FERC Commissioners and we hope that the impending loss of Commissioner Honorable spurs the White House to act now,” said Dena Wiggins, president and CEO of the Natural Gas Supply Association (NGSA).

 

A spokeswoman for the Interstate Natural Gas Association of America (INGAA) said Honorable’s decision not to seek a second term adds another variable to the equation of the White House nomination and Senate confirmation process. “At this stage, it is too early to predict the effects” of the additional vacancy, the INGAA spokeswoman said.

The heads of INGAA, NGSA and other energy trade group representatives penned a recent opinion/editorial that appeared in the Washington Examiner, urging Trump to re-establish a quorum at FERC. The lack of a quorum “is beginning to have a real impact on the industries and employees that our collective organizations serve, and on the hundreds of millions of customers they serve,” they said.

The op/ed piece was written by Wiggins of NGSA, Donald Santa, president and CEO of INGAA, Dave McCurdy, president and CEO of the American Gas Association (AGA), Barry Russell, president and CEO of the Independent Petroleum Association of America, and Toby Mack, president and CEO of the Energy Equipment & Infrastructure Alliance.

They said if Trump and Congress are serious about improving the job situation and infrastructure, they must quickly nominate and confirm at least one new member, and, ideally, three new members, to fill open seats at FERC. Even if three nominees are named by the White House soon, it would likely be another two months before any new commissioners take their seats at FERC.

“That means FERC will have been sitting on the sidelines for half the year. The American people can’t afford even one more day,” the heads of the energy groups said.

Honorable was nominated by former President Barack Obama in August 2014, and confirmed by the Senate in December 2014. Prior to her role at FERC, she served at the Arkansas Public Service Commission since October 2007, including as chairman from January 2011 through January 2015.

Honorable did not indicate future plans in her statement announcing her decision not to seek a second term. She said she reached the decision “after much prayer and consideration,” and thanked Obama and leaders in the Senate for their support. “I appreciate the strong bipartisan support I’ve enjoyed over the years and look forward to continuing this important work after leaving the Commission,” she said.

McCurdy of AGA and others praised Honorable for her work at the Arkansas Public Service Commission and FERC. “Her last name is a fitting description of this true professional,” McCurdy said in a statement.

At AGA, “we have always found her open to listening to the positions of all parties, encouraging stakeholder communication and collaboration, and have appreciated her ability to consider all the information and viewpoints in her decisions on the issues that have come before her,” McCurdy said.

A group of 16 Democrat senators sent a March 8 letter to Trump asking him to consult with Republicans and Democrats in the chamber to select nominees of both parties to serve at FERC, which would be consistent with law and previous practices. In the past, when presidents nominated FERC members who are not members of the president’s political party, they nominated individuals recommended by the Senate leader of the opposing party.

“We expect you will honor this long-standing practice in nominating individuals to serve on the Commission” the senators told Trump.

The letter was signed by Sens. Maria Cantwell (D-Wash.), Sherrod Brown (D-Ohio), Bob Casey, Jr. (D-Pa.), Chris Coons (D-Del.), Richard Durbin (D-Ill.), Al Franken (D-Minn.), Martin Heinrich (D-N.M.), Heidi Heitkamp (D-N.D.), Mazie Hirono (D-Hawaii), Joe Manchin III (D-W.V.), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Debbie Stabenow (D-Mich.), Mark Warner (D-Va.), Elizabeth Warren (D-Mass.) and Ron Wyden (D-Ore.).

By Tom Tiernan TTiernan@fosterreport.com

This article appears as published in The Foster Report No. 3147, issued May 5, 2017

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