The Senate on December 6 narrowly confirmed the nomination of Bernard McNamee to be a commissioner at FERC after harsh comments from Democrats about his background and what they believe to be a bias in favor of fossil fuels.
Following a cloture vote to limit debate on the nomination that passed 50-49 on December 5, with Sen. Thom Tillis (R-N.C.) not voting, the Senate approved the nomination in a floor vote with the same tally on December 6. The 50-49 roll call vote was along party lines, with the two Independents joining Democrats in opposing the nomination. Tillis also did not vote in the roll call vote on the nomination.
Sen. Joe Manchin (D-W.Va.) who voted in favor of McNamee when his nomination was moved out of the Senate Energy and Natural Resources Committee, voted no on the Senate floor after seeing the video of McNamee denying the impact that humans are having on climate in a February 2018 event. After watching the video “I can no longer support his nomination” Manchin said in a statement.
The vote was unusually close for a FERC nominee, but reflective of the partisan politics that have become more prevalent on Capitol Hill in the last few years. Although several recent commissioners have been confirmed without contentious debate, former President Barack Obama nominees Norman Bay had a close vote in his Senate confirmation and Ron Binz withdrew his nomination in the fall of 2013 after intense partisan debate about his views on renewable resources and fossil fuels.
Several Democrats spoke on the Senate floor about their opposition to McNamee and the Trump administration effort to support coal and nuclear power plants. Senate Minority Leader Charles Schumer (D-N.Y.) was among those asserting that McNamee’s past criticism of renewable resources, questioning of climate change, and work for the Department of Energy and the Texas Public Policy Foundation indicate he will not be an objective arbiter of cases as a commissioner.
“He has expressed thoughts that only a real fossil fuel zealot would have,” Schumer said of McNamee. Schumer and others believe McNamee’s nomination represents an effort by the White House to put someone at FERC to support the Trump administration plan to improve compensation for coal and nuclear generation, they said ahead of the votes. Sens. Shelden Whitehouse (D-R.I.) and Ron Wyden (D-Ore.) said McNamee is supported by special interest groups that endorse President Donald Trump’s energy preferences.
Even though FERC unanimously rejected a proposed rulemaking from Energy Secretary Rick Perry to stem coal and nuclear plant retirements, the Trump administration views McNamee as someone to continue that policy push as a commissioner at FERC, Wyden and Whitehouse said in remarks on the Senate floor.
Ahead of the cloture vote, Sen. Lisa Murkowski (R-Alaska) spoke in favor of McNamee and defended him against criticism from clean energy advocates and others who opposed the nomination. Murkowski, who chairs the Senate Energy and Natural Resources Committee, said she believes McNamee will be impartial and maintain FERC’s independence without influence from the Trump administration.
Murkowski and Senate Majority Leader Mitch McConnell (R-Ky.) said a full complement of commissioners at FERC is needed to act on energy infrastructure investments and the economic benefits those facilities bring. The possibility of a deadlocked Commission, with two Republicans and two Democrats – not to mention the lack of voting from Republican Commissioner Kevin McIntyre, who has not voted for about two months due to health issues – not agreeing on pipeline projects has been mentioned by those supporting McNamee’s nomination.
FERC Chairman Neil Chatterjee, who was a key energy aide on McConnell’s staff before Trump nominated him to be commissioner in 2017, congratulated McNamee on his confirmation. “I am pleased to welcome Bernie to the Commission and I look forward to working with him and my FERC colleagues on the important matters that are before the Commission,” Chatterjee said in a statement. McNamee’s “knowledge and experience will serve the Commission well,” he said.
McNamee comes to FERC after having been executive director of DOE’s Office of Policy. Earlier this year he led the Center for Tenth Amendment Action at the Texas Public Policy Foundation (TPPF), a think tank with connections to Perry and Sen. Ted Cruz (R-Texas). McNamee was deputy general counsel for energy policy at DOE for 10 months starting in May 2017, and he had two different stints at McGuire Woods law firm, served in the Attorney General offices in Texas and Virginia and was senior director policy advisor and counsel for Cruz from the summer of 2013 to November 2014.
McNamee was moved through the confirmation process quickly, especially after the video of his comments in February 2018, while working for TPPF, were reported and released by Utility Dive and can be found on the website of the renewable resources watchdog group Energy and Policy Institute. In the hour-long video, McNamee says the intermittent nature of renewable resources “screws up the whole physics of the grid,” criticizes groups that support renewable resources, questions the science associated with climate change, and says that carbon dioxide should not be defined as “real pollution.”
It was the climate change comments that swayed Manchin to change his vote on the nomination, the senator said. “Climate change is real, humans have made a significant impact and we have the responsibility and capability to address it urgently,” he said.
Manchin may be in line to take the ranking member spot on the committee currently held by Sen. Maria Cantwell (D-Wash.), who has expressed an interest in moving to the ranking member spot on the Senate Commerce, Science and Transportation Committee. The Commerce Committee Ranking Member, Sen. Bill Nelson (D-Fla.) is leaving the Senate and Cantwell is interested in moving to that spot, source have said.
Green energy groups have significant concerns about Manchin becoming ranking member on the energy committee given his support for coal and natural gas as key West Virginia resources.
Besides speaking in support of McNamee ahead of the vote, Murkowski congratulated him afterwards, saying she is pleased FERC will have a full roster of five commissioners. “We have worked hard in this Congress to ensure FERC has a full bench, so that our nation can in turn have the infrastructure needed to deliver affordable, reliable, clean, diverse, and secure energy,” she said in a statement December 6.
A group of state Attorneys General sent a letter to senators opposing McNamee, saying his confirmation would jeopardize efforts to increase clean energy in competitive energy markets. “Bernard McNamee’s plans to subsidize uneconomic coal plants and his open hostility toward clean energy production make him the wrong choice for the job,” Massachusetts Attorney General Maura Healey said in a statement.
Energy industry groups praised the Senate vote confirming McNamee. “This vote brings the Commission to full strength and enables it to move forward with confidence on the work ahead,” said Dena Wiggins, president and CEO of the Natural Gas Supply Association.
The Interstate Natural Gas Association of America commended the Senate for its quick and efficient confirmation process for McNamee. “As a former FERC commissioner, I know from experience that FERC functions best when it has a full complement of commissioners. We appreciate the Senate making this nomination a priority,” said Don Santa, president and CEO of INGAA.
“INGAA looks forward to working with FERC and the new Congress, to ensure that energy infrastructure, including natural gas pipelines, remains a top priority.”
The Center for LNG also said it is looking forward to working with FERC and other stakeholders “to ensure a predictable, timely, and transparent LNG export process and an adequately staffed decision-making process,” said Charlie Riedl, executive director of the group.
Tom Kuhn, president of the Edison Electric Institute, thanked Senate leaders for recognizing the importance of having a full FERC with five commissioners. “We congratulate Commissioner McNamee, who brings an extensive amount of experience on federal and state energy policy and a strong commitment to public service,” Kuhn said.
By Tom Tiernan TTiernan@fosterreport.com
This article appears as published in The Foster Report No. 3227, issued on December 7, 2018
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