FERC Commissioner Tony Clark announced Aug. 4 that the agency’s September meeting will be his last. Courtesy: FERC
Tony Clark. Courtesy: FERC

Tony Clark, the only Republican on the Federal Energy Regulatory Commission (FERC), announced Thursday (Aug. 4) on Twitter that the agency’s September meeting will be his last. Clark’s term expired June 30, but he continued to serve under federal law that allows members with expired terms to serve until Congress adjourns at the end of the year.

Tony Clark Twitter post Aug. 4, 2016

By law, FERC consists of five members, with three from the party of the incumbent president and two from the minority party. Republican Philip Moeller left the commission last October after nearly a decade, leaving Clark, appointed by President Obama in 2012.

With Clark’s departure, the commission would have three Democrats: Chairman Norman Bay and Commissioners Cheryl LaFleur and Colette Honorable. Honorable’s term ends in 2017, Bay’s in 2018, and LaFleur’s in 2019. Obama has not named replacements for Moeller or Clark, which are subject to Senate confirmation.

FERC has seldom been a partisan agency, although Republicans and Democrats on the commission tend to see issues in different ways. Republicans often defer to state authority when looking at the very blurry line between federal and state authority in issues involving electricity rates and markets.

Clark, 45, is by all accounts a personable and collegial individual who had a career in North Dakota politics, including election to the state legislature and the Public Service Commission, where he also served as PSC chairman. He has gotten along well with other FERC commissioners and staff, even when disagreeing with the commission’s policy stance on issues such as regional transmission planning. In a May interview with SNL Energy, Clark said he’s not very interested in politics at the moment. He had been rumored as a possibility to take on North Dakota Democratic Sen. Heidi Heidkamp, who is up for reelection in 2018.

Clark’s time at FERC has included the period of sometimes raw and raucous protests over FERC’s natural gas pipeline proceedings, including removing demonstrators from the commission hearing room. The protests have targeted picketing Clark’s home. In his May interview, Clark spoke of the need to “respond to incivility with civility.” He also stressed the need for FERC to remain independent from partisanship.

With the commission now made up of only three commissioners—the bare minimum to conduct business—there could be snags in the agency’s business. If any of the commissioners were to recuse him or herself on an issue before the agency, FERC would be unable to act.

A somewhat analogous situation occurred in September 2014, when the commission had only four members. FERC deadlocked 2-2 on a filing by activists claiming a Massachusetts coal-fired plant manipulated an ISO-New England forward capacity auction by exercising market power. Because of the split (with Bay and Clark wanting to review the rate and LaFleur and Moeller objecting), FERC was unable to act, and the rate the activists targeted as flawed remained in effect.

It is unlikely that the Obama administration would nominate two Republicans to the vacant FERC seats prior to the November presidential election.

—Kennedy Maize is a long-time energy journalist and frequent contributor to POWER.