More Political Maneuvering Coming to FERC

The Federal Energy Regulatory Commission, historically a political backwater that attracts little attention other than from energy geeks, has moved into the Washington limelight in recent years. FERC has seen partisan battles over appointments to the obscure commission and wrangling – sometime internecine – over the chairmanship.

FERC could draw inside-the-beltway attention again this year and next, as Tony Clark, the remaining Republican on the commission, announced in January that he will not seek a second five-year term when his current term expires at the end of June. That would leave FERC with all three commissioners as Democrats. That could spell trouble.

Tony Clark

Tony Clark

Clark became the lone FERC Republican when Philip Moeller left last year. Clark is also the second-most senior member of the commission, behind former chair Cheryl LaFleur, a Democrat. Chairman Norman Bay and Commissioner Colette Honorable, both Democrats, joined the commission after LaFleur and Clark. FERC has seldom been engaged in partisanship in its activities; its authorities are largely technical. But seats on the commission have become a battleground between Republicans and Democrats over the last decade.

Clark, 44, has had a long career in state politics, elected to the North Dakota legislature at 23. He was elected to the state’s public service commission in 2000, reelected in 2006. At FERC, Clark has been a personable, open commissioner with a fine sense of humor. But he has shown a decidedly conservative bent when it comes to the boundaries of state and federal authority. Given his long experience in state government, he’s skeptical of sweeping federal policies, such as FERC’s assertive role in regional transmission planning.

Recently, Clark has highlighted what he views as defects in the Obama administration’s Clean Power Plan to ratchet down CO2 from coal-fired electric generation. That’s a topic that FERC can address only on the periphery, as the Environmental Protection Agency has the regulatory lead.

In House Energy and Commerce Committee testimony last year, Clark identified problems he sees the administration plan to curb coal plant CO2 emissions pose for North Dakota. The state relies heavily on lignite coal as a boiler fuel. Clark said EPA increased the CO2 reduction target for the state from 11% in its first proposal to 45% in the final rule, although the state has reduced emissions and meets all EPA air pollution standards. He added that North Dakota utilities have brought on a lot of wind generation in recent years “in part as a hedge against carbon regulatory risk” but gets no credit for that from EPA. The federal agency’s CO2 target for the state, he said, is “so punitive that I struggle to conceive of a way it can meet it in an affordable manner.”

While his term technically ends in mid-year, Clark may be around for quite some time beyond that. He has indicated he may stay on until a successor in in place. That could mean months.

FERC features staggered five-year terms. Colette Honorable, the most junior commissioner, has a term expiring June 30, 2017, just six months after a new president takes office. Current chairman Norman Bay’s term expires June 30, 2018, and LaFleur’s term is up on June 30, 2019.

It’s unlikely that the Obama administration will nominate a replacement for Clark or Moeller during the presidential election. Under law, three of the five commissioners are from the party of the president, who also names the chairman. Appointments are subject to Senate confirmation.

The Obama administration has no incentive to fill the two Republican vacancies at FERC. Nor would the GOP push for appointments prior to the election. The Senate Republican majority would not be inclined to fill FERC seats until the outcome of the November election is known. All the appointments require Senate approval.

In recent history, FERC vacancies have been brokered in the Senate. The two parties have agreed to pair nominees to win confirmation. As both current vacancies are Republican seats, the politics become complicated in an election year and beyond.

If the GOP wins in November, minority Senate Democrats could try to block confirmation unless the GOP comes up with a compromise. If a Democrat wins, the new president will have to cope with a Republican Senate that can block administration nominees.

As for Clark, there are unsubstantiated rumors that he is pondering a run for Congress. If so, it’s more likely that he would challenge North Dakota’s freshman Democratic Sen. Heidi Heitkamp, who won a narrow victory in 2012 and is up for reelection in 2018. The state’s only member of the House of Representatives is Republican Kevin Cramer, who won the seat in the 2012 election. Cramer is a former head of the state Republican Party and was also a member of the state’s Public Service Commission from 2003 to 2012, during Clark’s time on the commission.