McIntyre Passing Opens Spot for Another White House Nominee at FERC

McIntyre Passing Opens Spot for Another White House Nominee at FERCFERC Commissioner Kevin McIntyre died January 2. He had an extended battle with cancer and other health issues for the latter part of 2018 after successful surgery on a brain tumor in the summer of 2017.

Well wishes and expressions of sympathy and support for McIntyre’s family and colleagues at FERC began pouring in from Capitol Hill and energy sector participants around mid-day January 3.

Sen. Lisa Murkowski (R-Alaska) said she was deeply saddened by the news. “As a lawyer, a commissioner, and as FERC’s chairman, he always had the utmost respect for the agency and its mission. He was as warm and engaging as he was knowledgeable about the issues that came before him,” Murkowski said in a statement.

FERC Chairman Neil Chatterjee said it was a sad day at FERC for all those who had the pleasure of working with McIntyre. “During his tenure at the Commission, Kevin exhibited strong leadership and an unmatched knowledge of energy policy and the rule of law. He exemplified what it means to be a true public servant each and every day, no matter the challenges that lie ahead of him,” Chatterjee said.

“In the face of adversity, Kevin’s dedicated faith, devotion to family and sharp wit never faltered. His unwavering strength was – and will continue to be – an inspiration to us all,” he added in a statement. Other commissioners were posting statement on social media later in the day January 3.

McIntyre’s wife Jennifer and three children posted a statement on the FERC site as well, thanking Chatterjee, the other commissioners, and all FERC staff for their support, especially in the last few months.

“Kevin often said that being chairman of FERC was his ‘dream job’ – he truly loved and believed in the agency, its mission, and its people. He was always energized by the challenge of leading the agency ‘full steam ahead,’ even when his health faltered,” the family said. “We will always be grateful for the opportunity, however brief, that Kevin had to serve our country as FERC chairman.”

McIntyre’s passing leaves a vacancy for the White House to name a replacement at a time when three commission members – two Democrats and Republican Chairman Chatterjee – have been voting on orders. Commissioners often emphasize that FERC orders are predominantly nonpartisan, though dissents and concurrences have been frequent on some matters from Democrats Cheryl LaFleur and Richard Glick.

Relatively new Commissioner Bernard McNamee, a Republican, has not voted on orders after being sworn in on December 11, 2018.

McIntyre, who was the first commissioner to die while in office, served as chairman from December 2017 to Oct. 24, 2018, stepping down as chairman due to health issues, with the White House naming Chatterjee as chairman. McIntyre had not voted on items before the Commission since mid-October, and expressed thanks to Trump for trusting him to lead FERC at a critical time in its history in his letter to the president that noted key accomplishments during a relatively short tenure.

McIntyre liked to emphasize the rule of law and was often referred to as a lawyer’s lawyer in his representation of energy industry clients and leading the Commission. Several attorneys, the Energy Bar Association and energy sector leaders mentioned that in statements.

“People should know that Kevin truly loved being a FERC lawyer,” and “I am not sure I ever met anyone who took more pride in his work and loved what he did more than Kevin,” said William Scherman of Gibson, Dunn & Crutcher LLP and a former General Counsel at FERC. “That is why he was such a good lawyer and revered by his clients, friends and everyone at FERC,” said Scherman.

Dena Wiggins, president and CEO of the Natural Gas Supply Association, who was in law school with McIntyre at Georgetown University, said the energy sector and FERC will miss his leadership “and will miss even more deeply his presence in our lives.” McIntyre was keenly aware of the rule of law and statutory framework that guides FERC, she said.

“In addition to his immense talents as a lawyer, much more importantly, he was an enormously kind and decent man, devoted to his family and to his many friends,” Wiggins said.

Besides his devotion to his family and strong faith, McIntyre will be remembered as having led the FERC to a unanimous vote rejecting a proposed rule from Energy Secretary Rick Perry on compensation for coal and nuclear generation assets, action on pipeline rates following the Tax Cuts and Jobs Act of 2017, a notice of inquiry on FERC’s natural gas pipeline certificate policy and steps to add certainty to the Commission’s review of LNG export facilities.

McIntyre practiced law for nearly 30 years and was co-leader of the energy practice at Jones Day when he was nominated to serve as chairman by President Donald Trump in the summer of 2017. He and his wife Jennifer have three children in elementary school. He turned 58 on Dec. 27, 2018, with a celebration among family and friends.

The health battles that McIntyre endured in 2017 and 2018 included surgery for the brain tumor, a shoulder/arm injury from a fall and broken vertebrae in his back, with an apparent recurrence of cancer in the fall of 2018 leading to hospice care in December. Many sources and colleagues have praised him for his commitment to the Commission in such trying circumstances. Many used terms such as unfortunate, sad, and heartbreaking while expressing admiration for his integrity, jovial spirit and ability to liven a room with Irish songs.

On matters where McIntyre has not been voting, FERC has had Chatterjee, a Republican, and Commissioners Richard Glick and Cheryl LaFleur, both Democrats. Commissioner Bernard McNamee, a Republican who served at the Department of Energy in two different stints, has not voted on items yet, expressing a preference to listen and get up to speed on issues before full participation. Even after that period ends, McNamee’s voting will be closely followed as lawmakers and others have urged him to recuse himself from matters dealing with power grid resiliency and wholesale market resource issues.

Chatterjee previously was chairman in the fall of 2017, before McIntyre was confirmed by the Senate and sworn in on Dec. 7, 2017. When he took over as chairman upon designation from the White House, Chatterjee praised McIntyre for his “steadfast leadership” on many significant issues and said, “It is with a heavy heart that I step into this role.”

There is no interim designation in the White House announcement naming Chatterjee as chairman, so he has the authority to run the agency as needed, sources have said. Unlike some agencies, the White House can change chairmen at FERC without Senate approval, and it is not known if Trump will retain Chatterjee as chairman or name a new one when McIntyre’s vacancy is filled.

The next commissioner’s term to expire is LaFleur’s, in June 2019. There has been speculation that Democrats in the Senate may want someone else at FERC to take LaFleur’s spot, and could pair a Democrat nominee with a nominee to fill McIntyre’s spot. Only three commissioners can be of the political party of the president, so a Democrat or Independent would need to be nominated to fill LaFleur’s post if she is not renominated by the White House.

In a note to clients, ClearView Energy Partners said the reality of a simple majority needed in the Senate to confirm nominees makes the customary pairing of nominees from different political parties less relevant, asserting that the White House and Republicans could have a replacement for McIntyre (in a term that expires June 30, 2023) seated relatively soon. “Democrats may have little leverage to prevail upon GOP leadership to wait for a Democrat nomination before moving forward with a replacement for McIntyre,” the firm said.

Following the August 2018 departure of former Commissioner Robert Powelson, a former state regulator from Pennsylvania, FERC has been without a commissioner that served as a state commissioner for the first time since 1990. State regulators believe FERC could benefit from having someone with that background at the Commission, former Commissioner Colette Honorable noted in an interview in October, referring to areas of FERC’s jurisdiction where federal and state issues collide. State regulators understand the role of infrastructure development, rates, and policy decisions with respect for the sovereignty of states and the authority of FERC, Honorable said.

In a statement, Perry said McIntyre excelled as a thoughtful and steady leader during a pivotal time at the Commission. “I am honored to have had the opportunity to work with him and know this kind and decent man,” Perry said.

By Tom Tiernan

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