Senate Confirmed Norman Bay, the incumbent FERC Enforcement Chief, as Commissioner and the next Chairman

by Moore & Van Allen PLLC

[author: I, Moses Sye]

Norman Bay will head the Federal Energy Regulatory Commission (“FERC”), and to those supporting his appointment, it has been a long time coming. The White House first attempted to replace former FERC Chairman Jon Wellinghoff on June 27, 2013 with former Colorado utility regulator Ron Binz, who was on the Senate Energy and Natural Resources Committee at the time. However, the nomination was withdrawn on October 28, 2013. Notable opponents were Senators Dean Heller (R-NV), and Joe Manchin (D-W.Va.). On January 30, 2014, President Barack Obama announced his intent to nominate Norman Bay, the Director of FERC Office of Enforcement, to the position of FERC Commissioner, and upon appointment to designate Bay as Chairman. Obama’s second push to appoint a new chairperson who was not a sitting Commissioner stirred up a noticeable amount of controversy. Alaska Senator Lisa Murkowski, the top Republican on the Energy and Natural Resources Committee, was quick to oppose the nomination. Sen. Murkowski remained adamant until the Committee approved Bay to lead FERC on June 18, 2014, and the Senate narrowly confirmed the nomination in a 52-45 vote on July 15, 2015.

The bulk of the dissent regarding Bay serving as the FERC Chairman is related to Bay’s qualifications. Bay is a former U.S. Attorney and law professor. Despite all five of the incumbent Commissioners being considered more experienced and qualified for the job by many, Bay now has the position after serving as the Director of the Enforcement Office only since 2009. By contrast, Acting Chair Cheryl LaFleur has more than 20 years’ experience in the energy industry.

Committee hearings were held on May 20, 2014 to discuss Bay as future Commissioner and Chairman. Murkowski spoke before the Senate on July 15, 2014 immediately prior to Bay’s confirmation. According to Murkowski, Bay is unqualified because of the following reasons:

  • Bay lacks expertise in the field of energy – both the industries and the policies.
  • Bay needs to possibly recuse himself from more than 43 pending cases.
  • Bay responded evasively and unclearly during the hearing.

You can view a video clip of Murkowski’s speech here.

Bay, however, did not agree with Murkowski and other opponents. In response to questions during the hearing regarding his qualifications, Bay argued that he has pertinent experience because as a U.S. attorney he worked closely with National Labs, was counsel to Sandia Labs after leaving the Department of Justice, and spent two summers at the Department of Energy during college. In Bay’s response to Murkowski’s question regarding the pending matters that may require Bay’s recusal, he argued that only the important and apparent conflicts of interest should be counted. Bay also claimed that the number of pending matters requiring his recusal would be reduced if limited to formal investigations related to show-cause-orders.

The energy industry also had concerns regarding Bay’s nomination. Many were worried that Bay, who led the recent crackdown on Wall Street firms like JPMorgan and Deutsche Bank for market manipulation, could now be charging straight at energy industry giants using coal and other fossil fuel to assist the commander-in-chief’s agenda. Binz was accused of having been nominated to further President Obama’s fight against global warming, and some were concerned the White House might have been looking for a substitute after failing with Binz.

Now that the Senate has confirmed Bay as Commissioner, he will be learning from LaFleur during the transition months and will assume the chairmanship from LaFleur next April. LaFleur will remain with FERC as Commissioner, as the Senate also confirmed her to serve a second term.

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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