President Trump’s plan to fill the Republican seat on FERC while leaving a Democratic seat vacant isn’t playing well with Democrats and environmental groups.

Trump announced late Monday his intent to nominate FERC General Counsel James Danly to fill the Republican seat opened by the death in January of Kevin McIntyre. Danly’s confirmation would give the Republicans a 3-1 majority, leaving Democrat Richard Glick alone with Chairman Neil Chatterjee and his fellow Republican, Bernard McNamee. (See FERC General Counsel Tapped for Commission.)

“I am disappointed that the president has only announced his intention to nominate a Republican commissioner,” Sen. Joe Manchin (D-W.Va.), ranking member of the Senate Energy and Natural Resources Committee, said in a statement. “FERC has a strong history of operating in a bipartisan fashion, and failing to honor the tradition of a bipartisan pairing sets a dangerous precedent moving forward. I remain hopeful the administration will quickly nominate a Democratic commissioner so we can consider both nominations together and restore a fully functioning FERC.”

Manchin and Senate Minority Leader Chuck Schumer (D-N.Y.) are reportedly backing attorney Allison Clements for the Democratic seat formerly occupied by Cheryl LaFleur. Clements, director of the Clean Energy Markets program at the Energy Foundation, formerly helped direct the Sustainable FERC Project for the Natural Resources Defense Council.

E&E News reported last month that Schumer was threatening to block ENR Committee bills if the Republicans push a GOP nominee without a Democratic pairing.

Sen. Lisa Murkowski (R-Alaska), chair of the committee, told Politico recently that she would not let the lack of a Democratic nominee keep her from holding a confirmation hearing for a Republican.

She issued a brief statement Tuesday acknowledging Trump’s announcement but noting that the committee had not yet received the formal nomination and “associated paperwork” needed before scheduling a confirmation hearing.

“I welcome the president’s decision to nominate a Republican commissioner and to fill a critical seat that has now been vacant for nine full months,” she said.

Environmental groups reacted with indignation over Trump’s announcement.

“Donald Trump’s decision — and Sen. Murkowski’s acquiescence — to exclude a Democratic nominee from his announcement of the Republican counterpart is a breach of precedent and another swipe at FERC’s historically independent mission,” said Mary Anne Hitt, senior director of Sierra Club’s Beyond Coal campaign. “We strongly urge Sen. Murkowski to demand nominees be paired and considered concurrently, and that the administration quickly put forward Mr. Danly’s Democratic counterpart. Not doing so will risk further denigrating this important commission.”

Unqualified?

Sam Gomberg, senior energy analyst for the Union of Concerned Scientists, called Trump’s decision a “marked departure from decades of precedent” and called Danly “woefully unqualified for the job.”

Danly earned his J.D. at Vanderbilt University Law School in 2013 and worked in the energy regulation and litigation group at Skadden, Arps, Slate, Meagher & Flom before being appointed general counsel in September 2017.

“Prior to his appointment to general counsel at FERC, he had a brief stint as an associate energy attorney. I simply don’t see how the American public can have any confidence in his ability to understand the complex issues facing the energy sector right now and to make forward-looking, well-informed decisions on the issues awaiting the commission,” Gomberg said. “His inexperience absolutely increases the risk of a commission unable to defend consumers from biased and politically motivated attacks on our regulatory structure.”

Chelsea Eakin, senior manager for energy transition for climate change activists Climate Nexus, said the departure of LaFleur, who served for nine years, left the commission with a lack of institutional experience. “Combined, the three current commissioners have served for less than half the time LaFleur did and only under President Trump,” she said. “Danly’s confirmation would stack the commission, tasked with making energy decisions that have significant impacts on U.S. emissions, with like-minded Trump appointees in advance of a busy fall agenda.”

John Moore, director of the Sustainable FERC Project, said the Senate should require Danly to answer questions about his “humble regulator” philosophy.

“Before they vote on his nomination, senators must ask him what that means. Would Danly defer to the authority of states to set their own clean-energy policies? Would he continue FERC’s flawed climate review of pipelines that he defended in court?” Moore asked. “Critically, the nomination of only one commissioner when there are two vacancies reflects a further erosion of longstanding norms and undercuts the independence and bipartisan decision making at FERC.”

Nominating Rules

ClearView Energy Partners noted Tuesday that the changes to Senate nomination rules during the 115th Congress reduced the minority’s party ability to stop or slow presidential nominations.

“Although it has been customary to move bipartisan pairs of nominees for independent commissions such as FERC when two vacancies exist, we’d argue that practice had been a function of political necessity given the prior ability of either party to filibuster a nominee,” they said. “Assuming Danly’s paperwork has been or is expeditiously forwarded to the Senate Energy Committee for consideration, we think it is possible that his nomination could move through committee and to the Senate floor by the end of October. Senate consideration can only begin, however, when the White House literally forwards a nominee’s paperwork, and this part of the process has not always happened quickly.”

With only three members, recusals by McNamee or Glick have left the commission without a quorum recently, including a recent vote on ISO-NE’s capacity market results. (See FCA 13 Results Stand Without FERC Quorum.)

Glick also is prevented from voting on revisions to PJM’s capacity market until December. (See Glick Recusal May Mean No MOPR Ruling Before December.) Last week, PJM announced that all deadlines for its capacity auctions will be suspended pending FERC action. (See PJM Suspends Auction Deadlines Pending FERC Action.)

If Danly’s appointment allowed FERC to act on the PJM docket in November, the delayed 2019 auction could be held in mid-2020, before the 2020 auction, ClearView said.