President Trump has been vetting candidates to fill key Republican spots for a top federal energy watchdog agency that will be key to meeting his infrastructure goals, although it is not clear how much of a priority it is for him or whether his picks would strike the right balance between states’ and the federal government’s priorities.
The Federal Energy Regulatory Commission was forced to effectively shut down after former Chairman Norman Bay, an Obama appointee, resigned abruptly, leaving the agency without a necessary three-person quorum to carry out its tasks.
Trump needs the agency back in working order if he wants to move forward in meeting his America-first infrastructure and energy goals.
Industry sources and others with a close ear to the White House say the vetting process for new members is in full swing. A number of names have been floated in recent weeks, with three expected to be picked soon to fill the gaps. All three nominees must be Republicans. Under the rules that govern the agency, the commission must be made up of equal numbers of Republicans and Democrats, with the chairman from the party of the president.
First, there’s the “industry guy,” said Frank Maisano, senior principal at Bracewell Law’s government relations and strategic communications practice in Washington. That would be Kevin McIntyre, who runs the energy practice for the consulting firm Jones Day.
McIntyre has a variety of experience in the utility industry and how it is regulated under FERC, which oversees the nation’s wholesale electricity and natural gas markets.
He is also steeped in pipeline litigation, which would come in handy, as the commission has become a top target for environmental groups that take the agency to court routinely in their ongoing campaign to block agency approval of natural gas pipelines and energy export terminals. The commission oversees the interstate transportation of natural gas and the wholesale electricity markets that supply a major chunk of the nation’s energy use.
The environmentalists say the commission is a “rubber stamp” for the industry to continue to drill for fossil fuels and thereby raise the temperature of the Earth and spur continued global warming. Environmental groups recently started a nationwide campaign to protest and block Trump’s appointees from getting confirmed.
They expect the president to appoint climate deniers to the commission, but that couldn’t be further from reality, Maisano said.
“Anyone who doesn’t think like they do is a climate denier,” said Maisano, who has been tracking the Trump vetting process closely. “Climate change science … is completely irrelevant to what FERC does” and has “very little bearing on where we go on policy,” he said.
McIntyre is on the Corporate Counsel Institute’s advisory board at the Georgetown University Law Center. He also routinely updates the American Gas Association’s treatise, Regulation of the Natural Gas Industry, which is essentially a manual for operating a gas utility.
The second person who has risen to the top through the Trump vetting process is Robert Powelson, the new president of the National Association of Regulatory Utility Commissioners.
Obviously, Powelson is the “state guy” in Trump’s trifecta, said Maisano, who pointed out that he’s also from the “important state” of Pennsylvania, a historically “blue” state that voted for Trump in the election.
Powelson understands the infrastructure challenges that Pennsylvania faces as a large natural gas fracking state. “He is very familiar with the infrastructure challenges” for natural gas, as well as the benefits that the gas has provided, Maisano said.
In an interview on states’ energy priorities in the new administration, Powelson told the Washington Examiner last month that he believes in the ideals of “cooperative federalism” among the states and thinks having a fully functional FERC needs to be a priority.
“I mean, here’s an independent federal agency that has tremendous regulatory bandwidth, whether it’s pipeline siting, setting [return on equity] and tariff structures for transmission or monitoring wholesale market transactions,” Powelson said. “I could not think of any federal agency that connects more with what they do and what they touch.”
Number three on the Trump FERC list is Neil Chatterjee, energy policy staffer for Senate Majority Leader Mitch McConnell of Kentucky. He’s the stakeholder guy, Maisano said. The one with direct Washington experience who can make sense of the energy regulation with a honed perspective from working on Capitol Hill.
Senate leaders usually make recommendations to fill vacancies at the commission.
But Trump has not discussed the commission’s dilemma publicly. Nor has it risen to the level of being tweet-worthy.
Christopher Guith, vice president of federal affairs at the Chamber of Commerce’s Institute for 21st Century Energy, said the three names are being discussed by the Trump camp. But he doesn’t expect the nominations to be announced soon. He said it could take weeks, even months.
Guith said other people may be added to the list, such as Kenneth Minesinger, a shareholder and co-chairman of Greenberg Traurig’s global energy and infrastructure practice. His name was floated within a week after Trump won the presidency, along with others who haven’t been getting much play in the media recently.
He said the former chairman of the Texas utility commission, Barry Smitherman, whose name was being kicked around by the Trump camp in recent months, would be an “awesome” pick. But he appears to have been removed from the Trump short list because of his decision to join the board of directors at the utility firm NRG. That’s a good sign he is no longer in the running, Guith said.
There is some speculation that Smitherman dropped out because he wasn’t being considered for FERC chairman. And it is not clear how the leadership structure at the commission will shake out.
“Chatterjee is one of the picks for sure,” Guith said. Several reports had speculated that McIntyre was being considered for FERC chairman. But Guith thinks Chatterjee will win that post. The “second seat” on the commission would go to McIntyre.
It makes sense to choose as many people as possible to nominate because one of the two Democrats on the panel, Colette Honorable, has a term that will expire in June. That makes it important to begin thinking about the long-term management of the commission.
Liz Mair, political consultant and blogger, is doubtful that Trump is putting much thought into the short or long game.
“It strikes me as yet another example of the White House still stumbling and not quite having it together,” she said in an email. “This thing of nominees’ identities being known, but apparently no formal notification of who they are/will be to [Sen. Lisa] Murkowski, is something that just looks a little amateurish and not well-executed.”
Mair is referring to recent reports that Trump may be trying to get around legal requirements that the commission not have more than three members from one party. Murkowski, the Republican chairwoman of the Energy and Natural Resources Committee, said she hadn’t been advised of any such plan. Democrats said they would fight any move to remove Democrats from the commission.
“Pretty clearly, the administration — in general — needs to pull its finger out and get on with staffing up, preferably with people who know how government works and how to get things get done,” Mair said.
Guith concurred to a degree with Mair, saying there has been poor communication between the White House and Congress about FERC nominees. That’s been especially the case for the Democratic leadership and what they want to do about Honorable’s term expiring in June.
Guith said a letter sent to Trump earlier this month by all the Democrats on the energy committee underscored the lack of communication.
Democrats, led by Sen. Maria Cantwell of Washington, the top Democrat on the committee, sent a letter to Trump this month prodding him to appoint nominees to the commission as soon as possible and to include them in the selection process.
Guith said the letter was a response to their being intentionally ignored and concerns that the White House could choose an independent over a Democrat to replace Honorable.
Maisano has a different view of the situation and doesn’t think reports on trying to drive out Democrats are accurate. He pointed out that Trump appointed Cheryl LaFleur, a Democrat from Massachusetts, to be acting chairwoman at FERC.
“He appointed her as chair,” Maisano said, positing that “it’s not out of the question that Cheryl LaFleur” would remain in control while the nominees get their feet wet in their new roles. A Republican could take the helm later.
Congressional Republicans have confidence in LaFleur and likely would support that idea. But Guith doesn’t believe it to be necessary to have her remain as chairwoman once new commissioners and a chairman are chosen and confirmed.
“There is zero reason … for the White House not to elevate who they want,” Guith said. “Any one of those guys could be the chair from the start.”
