Commissioner Bernard McNamee, of the Federal Energy Regulatory Commission (“FERC”), has announced that he will officially relinquish his position on September 4, 2020.
Background:
FERC is the agency that regulates the interstate transmission of oil, electricity, and natural gas. It is composed of up to five commissioners who are appointed by the President with the advice and consent of the Senate. Commissioners serve five-year terms, and have an equal vote on regulatory matters.[1]
FERC has been operating with a 3-1 Republican majority since the confirmation of Commissioner James Danly in March of 2020. (For more on Danly see here.) But the departure of McNamee could leave the Commission with the minimum number of commissioners needed for a quorum if President Trump's two recent nominees are not confirmed before McNamee steps down.
New Nominees:
At the end of July 2020, Trump announced he would nominate two new commissioners to FERC, including a Democratic nominee to fill the vacant seat left by the departure of former Commissioner Cheryl LaFleur in August of 2019.
Trump’s Democratic nominee is Allison Clements, of Ohio. Clements is widely known as a clean energy expert who previously served as director of the Natural Resources Defense Council’s Sustainable FERC project. Trump also nominated Mark C. Christie to fill a Republican seat. Christie is the chairman of the Virginia State Corporation Commission.
Significance:
Both nominees would need to be confirmed by the Senate before being sworn in, and thus, there is a chance they may not be confirmed before McNamee steps down (or before the election on November 3). The typical time between the President’s announcement of intent to nominate and the subsequent confirmation by the Senate has been about three to four months during the Trump Administration.
If Clements and Christie are not confirmed by September 4, 2020, FERC will be left with only three commissioners: Chairman Neil Chatterjee, and Commissioners Richard Glick and James Danly. A full slate of commissioners at FERC helps create certainty for energy companies that proposals will be heard and decided upon in a timely manner. With only three commissioner (the minimum for a quorum), any recusal would prevent FERC from deciding certain matters, such as applications for the construction and operation of natural gas pipelines and liquefied natural gas terminals.
For more information, please contact a member of Benesch’s Energy Practice Group.