Update: Bernard McNamee won Senate confirmation to the Federal Energy Regulatory Commission in a narrow, party-line 50-to-49 vote on Thursday, putting an architect of the Trump administration's efforts to force utilities and grid operators to buy power from money-losing coal and nuclear plants a vote at the federal agency that’s unanimously rejected this vision.
Now, critics of the Trump administration are demanding that McNamee recuse himself from voting on the coal and nuclear bailout plan he helped write, or face the possibility of having the decisions overturned in federal court.
Thursday’s narrow vote underscores the depth of opposition from Democratic senators, who say his long-time work on behalf of fossil fuel interests, and his public statements opposing renewable energy and denying climate change, should disqualify him from the position of serving as a neutral arbiter of federal energy policies.
McNamee’s nomination has been so controversial that Sen. Joe Manchin, the West Virginia Democrat who typically votes with the interests of the coal industry in mind, and who voted with Republicans on the Senate committee to move his nomination to Thursday’s floor vote, ended up casting a vote against his confirmation, telling reporters he was concerned about McNamee's stance on climate change.
McNamee’s confirmation to FERC’s five-member board is largely viewed as the Trump administration’s payback to its coal industry backers. But if he’s confirmed, opponents say he won’t be able to vote on any of the pro-coal and nuclear policies he helped craft at the Department of Energy.
Our original story is below.
As Bernard McNamee moves closer to being confirmed to the Federal Energy Regulatory Commission, critics of the Trump administration are demanding that he recuse himself from voting on the Trump administration coal and nuclear bailout plan McNamee helped write.
On Wednesday, McNamee won a U.S. Senate procedural vote that moved him one step closer to joining FERC’s five-member commission, despite vocal opposition from Democratic senators who say his long-time work on behalf of fossil fuel interests, and his public statements opposing renewable energy and denying climate change, should disqualify him from the position.
Wednesday’s vote clears McNamee to face a full Senate vote as early as Friday, where he is expected to be confirmed on a mostly party-line vote — a move that industry analysts see as the Trump administration’s payback to its coal industry backers.
But if he’s confirmed, opponents say he won’t be able to vote on any of the pro-coal and nuclear policies he helped craft at the Department of Energy. And if he does, the decisions that emerge won’t pass legal muster.
That’s the argument made by the Harvard Electricity Law Initiative, which on Wednesday filed briefs at FERC “advising that Mr. McNamee is disqualified from two pending matters and from future proceedings concerning rates for 'fuel-secure' generators.”
As DOE’s deputy general counsel for energy policy, McNamee played a key role in crafting the notice of public rulemaking from DOE — a proposal for FERC to use its authority to create out-of-market payments for coal and nuclear power plants that was unanimously denied by FERC last year.
This fact legally bars him from voting on the matter as a FERC commissioner, the initiative’s brief claims. That ban applies to any votes on DOE’s rehearing request for the plan, as well as any votes that might revive the plan as part of the “grid resilience” docket that FERC opened in the same ruling.
In fact, according to the brief, “federal court precedent compels Mr. McNamee’s recusal and his refusal to do so would provide a federal court reviewing FERC’s order with a procedural reason to invalidate FERC’s decision,” the group wrote.
In other words, if McNamee were to vote on these matters, the decisions could be thrown out in federal court, Ari Peskoe, director of the Harvard initiative, said in a Wednesday email. “A federal court would overturn even a unanimous order," he said.
The group’s brief also argues that McNamee is disqualified from participating in future proceedings about special rates for “fuel-secure” electric generators, given his imprimatur on DOE’s argument that giving them “rates that ensured their profitability without regard to their value to the system was just and reasonable.”
This legal argument comes amid broader efforts by environmental and clean energy groups to oppose McNamee’s nomination. If confirmed, he would replace Commissioner Ron Powelson, a Republican appointed by Trump, who nonetheless voted last year with the rest of the commission to deny DOE’s proposal to give so-called fuel-secure generators out-of-market payments.
McNamee, by contrast, worked on this proposal as DOE’s deputy general counsel for energy policy and defended it in a Senate hearing this year as head of DOE’s Office of Policy. He has also defended the department's ongoing efforts to demand out-of-market payments for coal and nuclear power plants, using federal laws intended to keep critical infrastructure running in times of national emergency.
These efforts have been roundly decried by environmental groups, state and federal regulators including many former FERC commissioners, consumer advocates, and the natural gas, solar, wind and energy efficiency industries. They’ve also been undermined by data from mid-Atlantic grid operator PJM, which has reported no threats to grid reliability from the impending closures of several coal and nuclear plants in its territory.
These power plants belong to FirstEnergy, the utility that in March asked DOE to use its emergency power to prop up its now-bankrupt generation unit. DOE’s plan was also influenced by Perry’s association with coal company CEO and owner Robert Murray, an outspoken financial supporter of Donald Trump’s presidential campaign, whose company sells much of its coal to FirstEnergy’s plants.
DOE’s plans to use national security as a pretext for forcing utilities to buy coal and nuclear power were revealed via a leak of a supporting document in June. According to news reports, the effort has faded from focus at DOE in the past month, amidst widespread outcry over the billions of dollars per year in extra costs it would likely create. Preliminary estimates range from the American Coalition for Clean Coal Electricity’s projection of about $4 billion per year, to The Brattle Group’s estimate of between $9.7 billion and $17.2 billion per year.
McNamee’s nomination has also focused the media on his past statements attacking renewable energy and denying climate change. Last month, Utility Dive posted a video of McNamee speaking at a conference for Texas lawmakers in February, in which he disparaged renewables for "mess[ing] up the whole physics of the grid," denied that carbon dioxide is a "real pollutant," and described the policy arguments between fossil fuel and environmental groups as a "battle between liberty and tyranny.”
This video came up for discussion during a Senate Energy and Natural Resources Committee last week where McNamee secured a 13-10 party-line vote to advance his nomination. "I find it hard to believe he will be an impartial reviewer of these issues," said Sen. Maria Cantwell, the committee’s ranking Democrat. "Mr. McNamee was not defending the administration's policies; he was speaking as a private citizen and his words revealed a very strong bias in favor of fossil fuel and against renewable energy."
Sen. Lisa Murkowski, the Alaska Republican who chairs the committee, dismissed the videotaped comments as “one speech from an event 10 months ago on just his second day in a new job out in Texas,” working for the conservative Texas Public Policy Foundation on campaigns to promote fossil fuels and reduce the federal government’s role in health care. "Based on my conversations, I think he understands the FERC is an independent agency and must remain as such,” she said.
McNamee would join a FERC that may well see another seat open up in the near future, given the health problems of Republican Kevin McIntyre, which led to his replacement as FERC chairman by Republican Neil Chatterjee in October. While McIntyre has not announced plans to resign from FERC, he has not attended voting meetings of the commission since October, giving FERC’s two Democrats, Cheryl LaFleur and Richard Glick, a 2-to-1 voting advantage in recent months.