Environmental groups are banking on another high-profile rebellion from Sen. Lisa Murkowski.
Fresh off voting against the confirmation of controversial Supreme Court Justice Brett Kavanaugh, the top energy lawmaker on Capitol Hill is preparing to take up a nomination that experts say could shape the future of renewable energy and greenhouse-gas emissions in the country.
Energy Department official Bernard McNamee, an architect of the Trump administration’s so-far unsuccessful campaign to bail out financially struggling coal- and nuclear-power plants, is set to plead his case to sit on the Federal Energy Regulatory Commission on Nov. 15 before Murkowski’s Energy and Natural Resources Committee.
The traditionally bipartisan panel will have to sign off on the nomination in order to shoot it to the Senate floor for confirmation. Barring an audacious act of political defiance from Murkowski, the McNamee nomination is poised to do just that.
Still, environmental groups are stressing Murkowski's history of supporting the independence of FERC, an agency that is legally insulated from political directives, to try to spur the senior senator from Alaska to sink the nomination.
“Senator Murkowski is in a critical decision-making capacity here,” Kim Smaczniak, an Earthjustice attorney who specializing in FERC policy, told National Journal. “We would certainly want her to take the same approach of looking at this nominee as she has looked at nominees in the past, saying, ‘you know, have they expressed a biased view towards certain kinds of fuels?’ And clearly McNamee has.”
FERC regulates interstate electricity transmissions, monitors energy markets, and conducts environmental assessments of energy projects, along with a host of other responsibilities.
The 1977 statute that established the agency, the Department of Energy Organization Act, formally labeled the agency “independent,” mandated that only three of the five commissioners represent a single political party, and specified that the agency is not “responsible to or subject to” the Energy Department. The law also says commissioners must be “specially qualified to assess fairly the needs and concerns of all interests affected by federal energy policy.”
That autonomy has largely held true over the past four decades. But midway through the Obama administration, a flashpoint emerged.
Then-President Obama tapped Ron Binz, a former Chairman of the Colorado Public Utilities Commission, to lead FERC in 2013. Binz previously called natural gas a “dead-end” fuel, and fossil fuels groups railed against the nomination. Murkowski, then ranking member of the Senate energy panel, took up the opposition mantle in a late-summer nomination hearing.
“We recognize that FERC is independent by law and by design. It is clearly, clearly distinct from executive agencies that carry out policy directives from the White House,” Murkowski said in 2013. “I’m concerned about your view of the role of regulators and how you would lead the commission if confirmed. You’ve written and spoken extensively about that role and, at this point, I am not convinced that your views are compatible with FERC’s mission.”
Roughly two weeks later, Binz bowed out of the nomination process. And now, environmental groups are banding together to demand a similarly rigorous review of McNamee.
“We are troubled by the prospect of Mr. McNamee making critical decisions about our nation’s energy markets and electricity supply given his role in shepherding the Department of Energy’s failed attempt to use executive authority to subsidize uneconomic coal and nuclear power plants,” a group of five environmental and consumer groups, including Earthjustice, told Murkowski in an Oct. 16 private letter obtained by National Journal.
“Mr. McNamee’s nomination raises serious conflict-of-interest questions, which threaten FERC’s impartiality and independence,” the letter added. In taking a position on McNamee, Smaczniak said her outfit bucked a tradition of staying neutral on nominations for FERC, which Earthjustice routinely deals with.
The confirmation comes at a particularly sensitive time. Coal-fired power plants are shutting down at alarming rates. The Bruce Mansfield plant in Pennsylvania and Sammis plant in Ohio are now scheduled to retire early. Those are the two biggest coal plants ever announced for retirement, according to Sierra Club, another signatory to the letter.
Coal is a producer of greenhouse-gas emissions, most notably carbon dioxide. A United Nations report this month suggests far more drastic changes are needed to avert rapid temperature and sea level rise.
And despite recent reporting by Politico that suggests the Trump administration’s bailout has stalled, environmentalists aren’t taking a victory lap. Instead, they're homing in on an active FERC rulemaking involving PJM Interconnection, the largest competitive wholesale power market in the world, which stretches from New Jersey to Chicago. McNamee’s confirmation could play a critical role.
A two-part PJM proposal to potentially penalize renewable-energy recipients of state subsidies hits a final comment deadline in November, at which point FERC will be tasked with deciding on the merits of the proposal. Environmental advocates are now saying the FERC decision could provide a watershed moment in the growth of renewable energy.
In the letter to Murkowski, those environmental and consumer groups encouraged the committee to demand documentation of McNamee’s role in the bailout campaign. The nominee signed a Energy Department letter to FERC in September 2017 to certify the initial proposal, according to recently surfaced documents.
McNamee serves as executive director at Energy's Office of Policy. He joined the Trump administration in May 2017 as deputy general counsel before departing in February for a four-month stint at the conservative, fossil-fuel-friendly Texas Public Policy Foundation.
While there, McNamee penned some controversial material. “We have been told that fossil fuels are wrecking the environment and our health,” McNamee wrote in an April column. “Fossil fuels have allowed people to be more productive, to engage in less backbreaking manual labor, and to grow more food.”
Recent comments from a top FERC staffer have only heightened concerns that the agency’s independence is falling to the wayside. FERC Chief of Staff Anthony Pugliese expressed support for the bailout to right-wing outlet Breitbart, prompting top Energy Committee Democrats in the House and Senate to call that impartiality into question.
The commission now sits two Republican and two Democratic commissioners following the departure of Robert Powelson, a Trump appointee who departed recently after criticizing the bailout campaign. Environmental groups and renewable-energy advocates say a McNamee confirmation could tip the scales. And they’re pushing Murkowski to maintain a similar independence that legally enshrines FERC.
“She’s always been, I think a fair arbiter and has really been an all-of-the-above proponent and has meant it,” said Greg Wetstone, CEO of the American Council on Renewable Energy. “I think she’s going to want to make sure the electricity marketplace is protected and allows for economics that work and keeps investment flowing.”