Late in the day November 2, the Senate confirmed the White House nominations of Kevin McIntyre and Richard Glick to join FERC, which will give the Commission five commissioners for the first time in two years.
McIntyre, an attorney and co-leader of the global energy practice at Jones Day, will serve as chairman at FERC once he is sworn in, taking over for current Chairman Neil Chatterjee.
A spokeswoman for FERC on November 3, said there are no plans yet for McIntyre and Glick to be sworn in. Swearing in of commissioners usually happens within a matter of days following Senate confirmation, and commissioners may take time to fill out positions on their staff once seated at FERC.
The last time FERC had a full complement of five commissioners was prior to the 10/30/15 departure of Philip Moeller. Former Commissioner Tony Clark left on 9/30/16, and on 2/3/17 former Chairman Norman Bay resigned, leaving FERC without a quorum that lasted until the Senate confirmation of Chatterjee and Robert Powelson in early August.
Powelson and Chatterjee joined Commissioner Cheryl LaFleur to provide the minimum for a quorum at FERC, and they have been working through a backlog of cases stemming from the six-month period where no votes could be taken.
The vagaries of the Senate hold process, in which any senator can place a hold on a White House nominee for any reason, were at play with McIntyre, a Republican, and Glick, a Democrat. For several weeks, Sen. James Inhofe, (R-Okla.) had a hold placed on several nominees, including McIntyre and Glick, to draw attention to the lack of Trump administration nominees that had been confirmed for positions at the Environmental Protection Agency (EPA).
“Due to unprecedented obstruction by Senate Democrats, the EPA has only one Senate-confirmed position filled,” Inhofe said in an October 25 statement following the Senate Environment and Public Works Committee approving four nominees to fill positions at EPA, including William Wehrum to be assistant administrator for air and radiation at EPA. In early October, the White House nominated former Inhofe staffer Andre Wheeler to be deputy administrator at EPA.
Sources in Washington said the hold had nothing to do with McIntyre and Glick, and that keeping track of the various nominations and agreements reached about EPA nominees became challenging. “Obviously it got worked out,” said one source, who was a bit surprised by the Senate confirmation of McIntyre and Glick.
McIntyre will serve out the remainder of a term that ends June 2018 and a full term that ends in June 2023, FERC said in a November 2 press release. Glick, general counsel for Sen. Maria Cantwell (D-Wash.), ranking member on the Senate Energy and Natural Resources Committee, will serve out the remainder of a term that ends in June 2022.
Chatterjee, former energy policy advisor to Senate Majority Leader Mitch McConnell (R-Ky.), said he looks forward to working with the new arrivals. “I’ve enjoyed getting to know Kevin through the confirmation process and am eager to start working with him, and it will be great to reunite with Rich Glick, my former Senate colleague. Both Kevin and Rich bring years of experience and knowledge to the significant issues before the Commission and, importantly, their arrival restores the Commission to full strength,” Chatterjee said.
While he was chairman, Chatterjee commented that he prefers to have a full complement of commissioners for addressing major policy actions. One of the more significant items awaiting action is the grid resilience notice of proposed rulemaking (NOPR) submitted to FERC by Energy Secretary Rick Perry. The proposal would provide full cost recovery for power plants with 90 days of fuel on site in regions with independent system operators that have energy and capacity markets, which is generally viewed as providing additional compensation for coal and nuclear power plants in those regions.
A few sources indicated that having McIntyre and Glick on board for any initial ruling on the NOPR may not change things, but they are pleased to have five commissioners involved rather than three. FERC is expected to have some type of initial action by December 11.
During their September 7 confirmation hearing before the Senate committee, McIntyre and Glick faced questions about the Department of Energy staff study on baseload generation trends and the early retirement of coal and nuclear power plants. Both Glick and McIntyre said FERC has no authority on generation choices or resource decisions that are under the authority of state regulators, and that some of the issues in the DOE staff report overlap with work the Commission has underway following a two-day technical conference on state generation policies and their impact on wholesale power markets.
“The Commission does not have the authority to, nor should it, prop up failing technologies or technologies that are not economically competitive,” Glick said in response to a question from Sen. Martin Heinrich (D-N.M.). They both noted that state laws adding renewable resources to the nation’s power generation mix at increasing levels are being carried out with no reliability impact on the grid.
In his prepared testimony, McIntyre told lawmakers that “any consideration of potential action by FERC, or by any governmental body, must begin with a firm understanding of the applicable legal requirements – and that any action taken must satisfy those requirements in full. Because many situations permit a range of equally lawful decisions, including some with profound policy implications, it is also critical to ensure a full airing of all views on the matter, with input by stakeholders, including the public.” He vowed to be guided by those principles, rooted in the rule of law, with processes that are fair, transparent, and even-handed.
McIntyre and Glick will arrive in plenty of time to review FERC staff’s assessment of comments on the NOPR, said Christine Tezak, managing director at Clear View Energy Partners. If they were to join FERC closer to the December 11 date when FERC is expected to issue an initial ruling on the NOPR, then there would have been a concern about a delay of some sort, Tezak said in an interview.
“We don’t think this changes much” in terms of how FERC may respond to Perry’s proposal, she said when asked about the addition of McIntyre and Glick. “We continue to believe that the FERC’s path forward is mostly likely a revision to or a re-proposal” of the NOPR in some fashion, and not a full adoption or outright rejection, Tezak said.
Energy trade groups praised the Senate for approving the nominations of McIntyre and Glick, with Independent Petroleum Association of America President and CEO Barry Russell commenting that a full roster of commissioners will be needed to address the NOPR. “This proceeding has far-reaching implications for electricity markets and for the energy markets fueling generators and deserves the input of all five commissioners,” Russell said.
FERC faces critical issues in approving infrastructure for getting natural gas to markets, Russell added. “With a full slate of commissioners, these approvals will be even stronger to withstand opposition from those who fight to keep natural gas in the ground,” he said.
The Senate vote “brings the Commission to full strength and enables the Commission to move forward with confidence on the important work that lies ahead,” said Dena Wiggins, president and CEO of the Natural Gas Supply Association.
Both McIntyre and Glick have a deep understanding of federal energy policy and bring a strong commitment to public service, said Tom Kuhn, president of the Edison Electric Institute.
“There are many critical issues impacting the electric power industry and its customers. Among them, we need to update the transmission planning process, streamline the siting and permitting process, and develop predictability for the return on equity for transmission projects in order to attract investment, all while ensuring the reliability and resiliency of the energy grid. We look forward to working with incoming Chairman McIntyre and Commissioner Glick to find solutions on these important issues,” Kuhn said.
By Tom Tiernan TTiernan@fosterreport.com
This article appears as published in The Foster Report No. 3172, issued November 3, 2017
Copyright © 2017 by Concentric Energy Publications, Inc. All rights reserved.