The U.S. Senate on a 50-49 party-line vote December 6 confirmed Bernard McNamee to a seat on the five-member Federal Energy and Regulatory Commission (FERC), despite questions about his independence from the Trump administration and his previous comments in support of a bailout of coal and nuclear U.S. power plants at the expense of renewable energy.
Senate Majority Leader Mitch McConnell, a Republican from Kentucky, called McNamee “an impressive nominee who has the right qualifications for this important job.” Senate Minority Leader Chuck Schumer, a Democrat from New York, had a different view: “McNamee has been manifestly biased in favor of fossil fuels and against renewable energy, so much so that one can’t believe he would a be fair arbiter on these issues at FERC.”
McNamee’s confirmation comes on the same day as the Trump administration said it is ready to officially unveil its Affordable Clean Energy plan, a rule designed to replace the Obama-era Clean Power Plan. The Environmental Protection Agency (EPA) has said it will roll back regulations on coal-fired power plants, even after the EPA—along with a dozen other federal agencies—recently released a report saying emissions from fossil fuel-powered plants need to be reduced due to their negative impact on climate.
FERC is an independent federal agency that regulates the transmission and wholesale sale of electricity and natural gas in interstate commerce. The agency also regulates the transportation of oil by pipeline in interstate commerce. Though its five commissioners are political appointees of the president, and confirmed by the Senate, they are charged with deciding issues on a non-partisan basis. No more than three commissioners of one political party may serve on the commission at any given time.
Commissioners can serve five-year terms. Republicans now hold a 3-2 majority at FERC after McNamee’s confirmation.
One senator flipped his vote Thursday. Democrat Joe Manchin of West Virginia, who had supported McNamee in committee, voted against McNamee’s nomination. Manchin is a supporter of coal, which is a major industry in his state.
Criticism of Renewable Energy
McNamee’s nomination to FERC was questioned after a video, recorded in February, showed him criticizing renewable energy and favoring fossil fuels. McNamee, who was working for the conservative Texas Public Policy Foundation at the time, in a speech to Texas lawmakers said fossil fuels are “key to our way of life.” He also said renewable energy “screws up the whole physics of the grid.”
Lisa Murkowski, the Republican senator from Alaska who chairs the Senate Energy and Natural Resources Committee, in a speech on the Senate floor Wednesday said, “Concerns about McNamee’s independence are largely unfounded. I believe McNamee understands FERC is an independent agency and must continue to be. I also expect him to be fuel-neutral and not a champion of one resource over another.”
McNamee formerly was head of the Department of Energy’s (DOE’s) Office of Policy. That office was behind the Trump administration’s potential action to support coal-fired and nuclear power plants.
Sen. Ron Wyden, an Oregon Democrat, on Wednesday had said, “If McNamee takes a seat on the commission, it means Christmas is coming early for executives who want big, dirty energy bailouts.”
Kim Smaczniak, Clean Energy staff attorney at Earthjustice, an environmental group, said in a statement: “It’s shameful that the Senate rushed the confirmation of Bailout Bernard McNamee after video surfaced demonstrating his bias in favor of dirty energy interests. As we’ve known for some time now, McNamee is a clear threat to the health of our environment who will accelerate the growing trend toward politicization at FERC. Senators should have considered a real, impartial voice for energy markets, not a former dirty industry lobbyist.”
McNamee said he “will be a fair, objective, and impartial arbiter” during his confirmation hearing before the Energy and Natural Resources Committee. He said his “decisions will be based on the law and the facts; not politics.” McNamee also said he would not recuse himself from future coal and nuclear proposals before the agency, despite calls from Democrats to do so.
McNamee replaces Robert Powelson, another Republican FERC commissioner. Powelson resigned his FERC seat in August to become president and chief executive officer of the National Association of Water Companies. Powelson at FERC opposed the coal and nuclear subsidy plan, saying it would disrupt competitive power markets that reward the lowest-cost resource and would cause utility bills to increase.
Other FERC members are Chairman Neil Chatterjee and Kevin McIntyre, both Republicans, and Democrats Cheryl LaFleur and Richard Glick. McIntyre recently ceded the FERC chair to Chatterjee, citing ongoing health issues.
Manchin, who wants to become the top Democrat on the Senate Energy and Natural Resources Committee, said he changed his vote after seeing the video from February in which McNamee criticized renewable energy. The current ranking Democrat on the committee, Maria Cantwell of Washington, is said to be considering becoming the top minority senator on the Commerce Committee.
“After viewing video footage, which I had not previously seen, where Bernard McNamee outright denies the impact that humans are having on our climate, I can no longer support his nomination to be a FERC commissioner,” Manchin said in a statement Wednesday. “I would hope that Mr. McNamee will be open to considering the impacts of climate change and incorporates these considerations into his decision-making at FERC.”
Meanwhile, the Harvard Electricity Law Initiative on Wednesday filed briefs at FERC “advising that Mr. McNamee is disqualified from two pending matters and from future proceedings concerning rates for ‘fuel-secure’ generators.” The group said that as DOE’s deputy general counsel for energy policy, McNamee’s opinion was key to crafting the notice of public rulemaking from DOE, which was a proposal for FERC to use its authority to create out-of-market payments for coal and nuclear power plants. FERC unanimously denied that proposal.
The law initiative’s brief said that McNamee’s role at DOE legally bars him from voting on the matter as a FERC commissioner. The Harvard group in its brief said that ban would include any votes on DOE’s rehearing request for the bailout plan, as well as any votes that might revive the plan as part of the “grid resilience” docket that FERC opened in the same ruling.
The Harvard group’s brief went to say that “federal court precedent compels Mr. McNamee’s recusal and his refusal to do so would provide a federal court reviewing FERC’s order with a procedural reason to invalidate FERC’s decision.” The group said that means any decision that includes a vote by McNamee could be thrown out in federal court.
—Darrell Proctor is a POWER associate editor (@DarrellProctor1, @POWERmagazine).