This article appears as published in Foster Report No. 3248
FERC Commissioner Cheryl LaFleur is concerned that an increase in partisanship perpetuating Washington, D.C., is having an effect at the Commission, with commissioners increasingly voting along political party lines and less on their personal views.
Bipartisan voting promotes policy continuity and it would be unfortunate if major policy changes are made on split-party votes, LaFleur said May 7 in a speech to the Energy Bar Association (EBA). While most of FERC’s orders reflect those bipartisan votes, there are more dissents and concurrences, even on routine orders, she noted.
The turnover among commissioners and rotating chairmen in the past few years, which included herself in 2017, also has made it a challenge for the commissioners to come together or reach compromises on difficult issues. She expressed hope that her current colleagues, and those to be nominated to fill her seat and the current vacancy will work on forging compromises “because that makes the Commission most effective and our policies more enduring.”
LaFleur’s term ends June 30, though she can and likely will stay on after that, with the ability to stay at FERC until the current congressional session ends. “My time at FERC will come to an end sometime later this year,” she said, indicating that she intends to stay active in the energy sector.
LaFleur has seen a lot of changes at the agency in her nearly nine years there, and she shared her views in a retrospective speech to the EBA annual meeting, along with reporters afterwards where she expounded on some of her remarks. As the commissioner with the second-longest tenure since the agency changed to FERC in 1977 from the Federal Power Commission – behind William Massey, whose time exceeded 10 years from May 1993 to December 2003 – LaFleur provided historical perspective and broke down her service into different segments.
When she arrived in 2010, she was the only new commissioner, which helped in getting familiar with the work and the views of the other commissioners. She adopted a regulatory philosophy of doing no harm and being willing to compromise to help shape an order rather than writing separately. When reading option memorandums from FERC staff, she would take a centrist position. Certain commissioners would “selectively dig in” and write separately on their favorite topics or policy views, and LaFleur has done that over the years.
But she is proud of the compromises among Republican and Democrats in major policy decisions such as Order 745 and Order 1000, noting that the net benefits test in Order 745 on demand response compensation was reached through agreement with former Commissioner Marc Spitzer, a Republican.
LaFleur said she did not intend to play a centrist role at FERC, but with quite a bit of turnover among commissioners during her time “I seem to have found myself there.” She would often vote with Republicans Spitzer and Philip Moeller when Democrat Jon Wellinghoff was chairman, and currently she has written several concurring statements, “or discurrences as we call them internally,” to move out orders and siding with Chairman Neil Chatterjee and Bernard McNamee, both Republicans.
Much of the policy debate in energy circles has climate change at the heart, and “there needs to be some kind of national policy,” LaFleur told reporters. If there is a clear national policy, then FERC could vote on matters based on whether they are consistent with that national policy. That policy should come from Capitol Hill or someplace else, not individual agencies.
“I don’t think anyone thinks the optimal place to make a dispute about the impacts of climate change is in a FERC docket on a compressor station in Otsego, New York,” but this is where FERC finds itself, she said, referring to a natural gas pipeline case that was challenged at the U.S. Court of Appeals for the D.C. Circuit.
LaFleur recounted that she wrote 36 separate statements on orders in 2018 and 10 so far in 2019. Besides major policy orders there are disagreements on language in routine orders more often than in the past, which she attributed to a lack of continuity among commissioners and experience on coming together. “We’re still working on how to do that” with the current makeup of four members, she said. The trend for disagreements on routine matters “makes me nervous because those are the things we should just walk up and down the hall in my view.”
The loss of former Chairman Kevin McIntyre was a major blow to the agency, as he had a vision and launched some policy initiatives, and coupled with the departure of former Commissioner Robert Powelson in the summer of 2018, the reconstituted FERC when it had five members “never really fully had a chance to get its bearings and tackle the Commission’s work before it changed again.”
McNamee has filled Powelson’s spot to get up to speed on issues the last several months. “We’re trying to find our rhythm but of course there are more changes in store ahead,” LaFleur said, referring to the vacancy and her upcoming exit.
“In retrospect it’s hard for me to deny the collective impact of all these events, particularly the continued changes in commission membership and leadership and our underlying policy disagreements. It’s hard to deny that that has not had a significant impact on our work as a commission,” she said. The turnover makes it harder to find a group dynamic. “I’m confident we’ll get there, but it’s been more challenging,” she said.
The increased partisanship is characteristic of the current climate in Washington and not the agency itself, LaFleur asserted.
She values the independence of the Commission and said she has no knowledge of whether the White House is trying to be more involved with FERC orders. In her different stints as chairman, she said she was contacted by a White House staffer only once, under former President Barack Obama, about rehearing on Order 745. The staffer asked her about it. “I got kinda huffy” and informed the person of FERC’s independent role and lack of interference from the executive branch. The person, who sounded a bit younger than her “backed right down. It was a different time,” she joked.
By Tom Tiernan TTiernan@fosterreport.com