Senate Confirms Two Commissioners, Returning Federal Energy Commission to Full Strength

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On November 30, 2020, the U.S. Senate confirmed the paired nominations of Allison Clements and Mark Christie for seats on the Federal Energy Regulatory Commission (FERC). The nomination returns the Commission to a full five members for the first time since January 2019.

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 and as a consultant to clean energy interests. Mr. Christie, the Republican nominee, 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 the operation of the PJM Interconnection, the regional transmission organization that serves the Mid-Atlantic region. The pair received strong bipartisan support, with the notable exception of Sen. John Barraso (R-WY), who would chair the Senate Energy Committee if Republicans maintain control, and who opposed Clements’ nomination.

After a period of rapid turnover among Commissioners, there is considerable hope for a period of stability at FERC. In particular, the confirmations make it very unlikely that FERC will be left without an operating quorum, as happened at the beginning of the Trump Administration, when Commissioner Norman Bay, who had been Chair under the Obama Administration, resigned and no new nominees had been put forward by the incoming administration, leaving the Commission unable to act for several months. Several questions concerning the composition of the Commission in the Biden Administration remain to be answered:

  • Who will be Chair? Upon his inauguration, President Biden will have the privilege of appointing a new FERC Chair. The FERC Chair has the authority to set the Commission’s agenda and the appointment is therefore of particular importance for the direction of the agency. Although either Commissioner Richard Glick or new Commissioner Clements could be named Chair, most observers believe Commissioner Glick will be named Chair because of his experience at the Commission. Commissioner Glick has indicated that his priorities will be electric transmission policy, reassessing FERC policies concerning organized capacity markets that have brought FERC into conflict with many states, and reducing barriers to new energy technologies like battery storage.
  • Will a Republican majority remain? When the party controlling the Presidency changes hands, it has been common practice for the FERC Chair of the opposite party to resign rather than continuing to serve under the new administration. The current transition to the Biden Administration may well be an exception. The current chair, James Danly, is a relatively recent appointment and was named Chair less than a month ago, so he may well elect to remain on the Commission. Republican Commissioner Neil Chatterjee’s term expires in June 2020, and he has indicated he intends to serve until the end of his term. If he does so, a Republican FERC majority could endure for the first several months of the Biden Administration. However, Commissioner Chatterjee’s vow to serve until the end of his term came before he was summarily removed as Chair by the Trump Administration shortly after the election. Commissioner Chatterjee has openly speculated that the move was in retaliation for his willingness to consider carbon pricing in the FERC-regulated “organized” markets operated by Independent System Operators and Regional Transmission Organizations. These political maneuvers may lessen Commissioner Chatterjee’s appetite for continuing to serve.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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