Two Nominations Could Return FERC to Partisan Balance
On July 27, 2020, President Trump nominated Allison Clements and Mark Christie for seats on the Federal Energy Regulatory Commission (FERC). If approved by the Senate, the nominations would return the Commission, which currently features three Republican members and one Democrat, to a 2-2 partisan split. The winner of November’s Presidential election would then have the opportunity to fill the final seat and name the Commission Chair.
Ms. Clements, the Democratic nominee, is an attorney with extensive experience in the energy industry, including serving as Director of the Natural Resource Defense Council’s Sustainable FERC Project. If approved, she would fill one of two vacant seats on the Commission.
Mr. Christie has served for the past 16 years on the Virginia State Corporation Commission, which regulates the state’s utilities. He has also played a number of important regional roles, including serving as President of the Organization of PJM States, which represents the interests of affected states in operation of the PJM Interconnection, the regional transmission organization that serves the Mid-Atlantic region. If confirmed, Mr. Christie would fill the seat of Commissioner Bernard McNamee, whose term expired in June, although he will continue to serve until either Mr. Christie is confirmed by the Senate or the current Congressional term ends.
The paired nomination follows a practice that has become regularized in recent years of jointly nominating a Democrat and a Republican together when the Commission has two or more open seats. The current 3-1 partisan split on the Commission occurred when the Trump Administration departed from this practice to nominate Commissioner James Danly without a paired nomination of a Democrat. While Mr. Danly’s nomination was ultimately confirmed, it drew considerable criticism as inconsistent with FERC’s charter, which requires that the Commission operate with partisan balance, with no more than three of the five Commissioners permitted to be from one political party.
Until the fifth Commissioner is appointed, an evenly-divided Commission may be unable to resolve some of the more controversial issues that come before FERC. For example, the recently adopted rule revising FERC’s Public Utility Regulatory Policies Act of 1978 (PURPA) implementation regulations appears to have been stalled for a long period by a partisan divide on the Commission that was not resolved until Commissioner Cheryl LeFleur, a long-serving Democratic member, departed the Commission in September 2019 and was replaced by Commissioner Danly. The fifth Commissioner, who almost surely will be appointed by the winner of November’s Presidential election, therefore will hold considerable sway on the direction of the Commission on issues like PURPA, where partisan politics plays a major role.