By Michael Brooks

WASHINGTON — FERC General Counsel James Danly received little scrutiny at his confirmation hearing Tuesday, even as Democrats complained about President Trump neglecting to pair his nomination to the commission with one from their party.

Trump nominated Danly last month to fill the Republican seat opened by the death of Commissioner Kevin McIntyre in January. If confirmed, Republicans would hold a 3-1 majority, with the seat of former Commissioner Cheryl LaFleur, who retired at the end of August and joined the ISO-NE Board of Directors, unfilled. His term would end June 30, 2023.

It is customary for presidents to send commission nominees to the Senate Energy and Natural Resources Committee in pairs, one from each party, when there is more than one vacancy, in order to avoid the minority party filibustering the nominee of the majority.

But in 2013, Senate Democrats eliminated the filibuster for presidential nominees other than those for the Supreme Court, meaning a motion to end debate needs only a simple majority. Still, Trump followed the pairing tradition when there were still two vacancies on the commission following the confirmations of Republicans Neil Chatterjee and Robert Powelson to join LaFleur, nominating McIntyre and Democrat Richard Glick.

“This is one committee that has worked very well as a bipartisan committee,” said Sen. Joe Manchin (D-W.Va.), the committee’s ranking member. “We’ve looked at the facts, looked at what’s best for our country and our regions, and we’ve been able to have input on both sides, without any conflicts whatsoever. And to put us in a situation to where we can have a conflict and it could be avoided, it’s just not right.”

Though not named at the hearing, it has been widely reported that Democrats have put forward Allison Clements, clean energy markets program director for the Energy Foundation, as their choice. Manchin said that “we have a person who is very competent, very qualified; she’s been vilified to a certain extent, thinking she’s too far to the left.” (See Dems, Enviros Upset Over Solo FERC Nomination.)

Manchin stressed that he did not blame Danly, whom he called “very, very bright,” nor Chair Lisa Murkowski (R-Alaska). He said he hoped the president “in his wisdom, in this next week, will bring her forward, and hopefully, next week, we can get her and a full-working FERC of five members.”

“I just want to say how deeply worried I am that we are on the precipice of the FERC becoming another political entity, another extension of the” Trump administration, Sen. Martin Heinrich (D-N.M.) said. “And there’s a lot of risk associated with that. In the short term, that may work well for one side and their view, but it risks creating a back-and-forth that would be truly untenable for our energy grid overall.”

During Danly’s opening remarks, a protester from Beyond Extreme Energy had interrupted, holding up a sign and chanting, “No more fossil lovers, wind and solar now!”

“You could see a scenario playing out where, in the short term, certain sources of energy are subsidized to the point of driving up energy costs substantially,” Heinrich said. “In a year, maybe the gentlewoman who was escorted out gets nominated and appointed to the FERC, and we can no longer permit natural gas lines at all in this country.”

“FERC is set up to avoid the need for pairings,” Murkowski said. “And I think this is one of the myths and misconceptions that has been out there.” She pointed to the fact that FERC commissioners’ terms are staggered by one year each “in an effort to make sure that we didn’t have these double vacancies. … Bipartisan pairings are not always the norm.”

Mirroring Murkowski’s comments, shortly after the hearing, the committee tweeted a graphic showing the history of nominees to FERC since 1981, with each nominee placed under one of three columns: “not paired,” “unbalanced” and “bipartisan pairing.” The list, however, includes nominees submitted when there was a single vacancy and when there were multiple vacancies in the same party — unlike the current situation.

Murkowski also noted that McIntyre’s seat had “already” been paired with Glick’s.

“We’ve been waiting for 10 months to get a name … so I don’t think it’s fair to tell the Republican nominee that we have to wait, given that we’ve been waiting for 10 whole months,” she said. “Know, colleagues, that when we get the Democratic candidate, we will hear that nomination.”

Speaking to reporters after the hearing, Murkowski said she hasn’t “had direct conversation with the president about the Democratic name moving forward. I have been really focused on trying to get the Republican name forward, and so when Mr. Danly’s name was advanced some weeks back, it was like, ‘Finally, we can move on!’”

DOI Nominee Gets Most Attention

“I hope [the lack of paired nominee] will not be what drives anyone to oppose your nomination,” Murkowski told Danly in addressing what she said she expected “will be the main source of the opposition to your confirmation this morning.”

It wasn’t. In fact, Danly received little attention, let alone criticism, compared with Trump’s nominee to be deputy secretary of the interior, Katharine MacGregor, currently deputy chief of staff for the department. Most Republicans virtually ignored Danly, and most Democrats saved their ire for MacGregor, using their allotted time to question her on drilling for fossil fuels on federal lands and whether she had ties to the oil and gas industry.

Nor did Democrats give any attention to a letter sent to the Energy Department’s inspector general and Office Of Government Ethics by Senate Minority Leader Chuck Schumer (D-N.Y.), asking them to investigate “the application of inconsistent and inaccurate ethics advice by the Federal Energy Regulatory Commission’s Office of General Counsel, which, notably, is managed by nominee for commissioner and FERC General Counsel James Danly.”

“It appears … that at least one commissioner [Glick] was provided deficient ethics advice that, because of the seriousness with which he took his ethical obligations, ultimately forced him to abruptly recuse and cease work on certain proceedings,” Schumer wrote. “Another commissioner [Bernard McNamee] sought a waiver of his obligations under the pledge, weakening his initial contractual ethics commitments.”

However, Danly correctly pointed out in response to Murkowski that his office has no oversight over ethics waivers. Those are handled by the commission’s designated agency ethics official, whom Glick said had changed his interpretation of rules under a pledge signed by all presidential appointees when Glick announced his recusal from matters involving his former employer, Avangrid, until Nov. 29. (See Glick Recusal May Mean No MOPR Ruling Before December.)

“I have, as general counsel, no role whatsoever in the provision of ethics advice,” Danly said. “Every agency in the federal government … [has] a designated agency ethics official — we call them the ‘DAEO’ — and the DAEO reports to one person and that is the head of the agency; in our case that would be the chairman. … I am not involved in any of the advice that’s given by the DAEO to any of the people in our agency.”

“I think [the letter] was absolutely timed to throw a wrench into the works, and I think you saw how cleanly Mr. Danly disposed of it,” Murkowski told reporters. “I think that was just a poor effort by Sen. Schumer to try and create some controversy for Mr. Danly’s hearing this morning. I don’t think it worked at all.”

The ‘Humble Regulator’

Danly stressed in his answers that he would strictly adhere to the laws governing FERC, namely the Federal Power Act and the Natural Gas Act. “I believe it is incumbent on every commissioner to act within the authorities granted by Congress when discharging the commission’s duties,” he said in his opening remarks.

Manchin asked Danly what he meant by “the humble regulator approach,” a phrase he used in an April keynote speech at a conference held by his former employer, Skadden, Arps, Slate, Meagher & Flom.

“It boils down to the concept that officials and agencies should do honor to the statute that they are charged with administrating,” he told Manchin.

Sen. Catherine Cortez Masto (D-N.M.) asked Danly if he agreed with the D.C. Circuit Court of Appeals’ ruling in Sierra Club v. FERC, the so-called “Sabal Trail” case, in which the court remanded the commission’s environmental impact statement on the Southeast Market Pipelines Project. The court ordered FERC to estimate the project’s impact on GHG emissions, including upstream and downstream impacts, or explain more fully why it could not do so.

“I agree with the D.C. Circuit when it hands down a binding ruling, yes,” Danly replied, smiling.

“The black-letter law of [the regulations] implementing the National Environmental Policy Act require that all direct and indirect effects and cumulative impacts of every major federal action be reviewed and considered when making a decision, and I have every intention of following that unequivocal black-letter law,” he responded.

“Even if you say it’s ‘an exercise in futility.’ Well, I hope you … please do your best,” Hirono said before her time expired.