By Michael Brooks
The U.S. Senate voted 50-49 on Thursday to confirm Bernard McNamee as a FERC commissioner, restoring the commission to full strength and Republicans’ 3-2 majority.
Every Democratic senator voted against McNamee, including Sen. Joe Manchin (D-W.Va.), who had joined Republicans on the Energy and Natural Resources Committee in its 13-10 vote Nov. 27 to advance the nominee to the floor. (See McNamee Advances to Senate Floor.)
Manchin, a coal-state Democrat who often votes with Republicans on energy and environmental issues, is in line to become ranking member of the ENR Committee if Sen. Maria Cantwell (D-Wash.) moves to the Commerce Committee. That has rankled environmental groups and members of the more progressive wing of the party, who protested to Minority Leader Chuck Schumer at his office in New York on Monday.
Manchin said Wednesday he changed his mind on McNamee after learning of statements suggesting the nominee denies humans’ role in climate change.
Senate Majority Leader Mitch McConnell (R-Ky.) filed cloture on McNamee’s nomination last Thursday, but the vote to limit debate was postponed until after the state funeral of former President George H.W. Bush on Wednesday.
The cloture vote Wednesday was identical to the confirmation vote. After Senate rule changes in 2013, the vote to prevent filibustering presidential nominations requires a simple majority rather than a supermajority. Sen. Thom Tillis (R-N.C.) did not participate in either vote.
President Trump nominated McNamee in early October, after Robert Powelson left FERC in August to become CEO of the National Association of Water Companies, having served on the commission for only a year. McNamee, executive director of the Energy Department’s Office of Policy, would serve the remainder of Powelson’s term, which ends June 30, 2020.
McNamee could extend his tenure through 2025: The 2020 end date for his term means Trump would be able to re-nominate him before the end of the president’s own term the following year.
Democrats’ opposition to McNamee stems in part from his role in drafting DOE’s Notice of Proposed Rulemaking seeking subsidies for endangered coal and nuclear generators. Democrats on the ENR Committee urged McNamee to recuse himself from FERC’s resilience docket, which it opened in January after rejecting DOE’s proposal. (See Democrats Urge McNamee’s Recusal from Resilience Docket.)
In response, McNamee said he would consult ethics lawyers on the matter.
McNamee has served in the DOE Office of Policy since June. Prior to that, and after FERC’s rejection of the NOPR in January, he worked briefly as the director of the Texas Public Policy Foundation’s Center for Tenth Amendment Action, a group that files legal challenges over what it views as government overreach. It was in this role that McNamee promoted the center’s Life: Powered initiative — described as a project to “reframe the national discussion” about fossil fuels — in a February speech captured on video. In the speech, McNamee described the effort to change public opinion about fossil fuels, which he called “the key not only to our prosperity [and] quality of life, but also to a clean environment.” He also attacked environmental groups, describing their activism against fossil fuels as a “constant battle between liberty and tyranny” and criticized renewable resources.
“Renewables, when they come on and off, it screws up the whole the physics of the grid,” he said. “So, when people want to talk about science, they ought to talk about the physics of the grid and know what real science is, and that is how do you keep the lights on? And it is with fossil fuels and nuclear.”
The video — which was apparently taken down from the TPPF’s YouTube channel when McNamee was nominated — was uploaded to YouTube by the Energy and Policy Institute, a liberal advocacy group, on Nov. 20. The speech was a stark contrast to McNamee’s promise days earlier at his confirmation hearing to “be a fair, objective and impartial arbiter in the cases and issues that would confront me as a commissioner.”
“After viewing video footage, which I had not previously seen, where Bernard McNamee outright denies the impact that humans are having on our climate, I can no longer support his nomination to be a FERC commissioner,” Manchin said in a statement explaining his vote Wednesday. “I would hope that Mr. McNamee will be open to considering the impacts of climate change and incorporates these considerations into his decision-making at FERC.”
After the video became public, Cantwell issued several supplemental questions to McNamee about his statements, saying “these biases will make it difficult both for you to be the impartial arbiter that you have committed to be, and for the American public to have confidence that you will be an impartial arbiter who relies on the ‘law and facts’ as you have stated in your testimony.”
In his response last Monday, before the committee vote, McNamee repeated his support for “a level playing field for all types of technologies and resources” and pledged to be “an independent arbiter, making my decisions based on the law and facts.”
Asked by Cantwell to “point to a peer-reviewed scientific study” that supports his criticism of renewables, McNamee cited NERC’s May 2017 comments on DOE’s grid study: “With no mass, moving parts or inertia, increasing amounts of inverter-based resources (such as solar photovoltaic) present new risks to reliability, such as managing faster fault-clearing times, reduced oscillation dampening and unexpected inverter action.”
He also cited a February 2018 National Renewable Energy Laboratory study on the challenges posed by California’s “duck curve.”
“I recognize the value of all resources to operating the electric grid while also recognizing that resources may have different operating characteristics that may be necessary to support the electric grid during different situations,” McNamee said.
Cantwell also asked, “How can environmental groups possibly expect a fair shake from you as a FERC commissioner given that you equated these groups and their values with those of tyrants?”
McNamee responded: “I understand the difference between being an advocate and an independent arbiter.”
Echoes of Binz
McNamee’s nomination somewhat resembles that of a previous nominee: Ron Binz.
Chosen by President Barack Obama in 2013 to be FERC chair, Binz withdrew his nomination after Manchin joined Republicans, then in the minority, in opposing him over his statements favoring renewables.
Binz served as chairman of the Colorado Public Utilities Commission from 2007 to 2011. Part of the opposition to his nomination, led by the coal industry, stemmed from his participation in the drafting of Colorado’s Clean Air-Clean Jobs Act, which offered utilities incentives for replacing coal-fired power plants with natural gas. The law led to the closure of several coal plants in the state. (See Who is Ron Binz, And What Will He Do at FERC?)
But what ultimately ended up sinking his bid was the disclosure of documents showing he was communicating with public relations firm VennSquared Communications — which had been hired by Green Tech Action Fund, a nonprofit that provides grants for the development of clean energy technologies — in response to the coal lobby. The emails sparked a furor among right-wing media and led the previously noncommittal Lisa Murkowski (R-Alaska), then ranking member of the ENR Committee, to withhold her support.
On the Senate floor before the cloture vote Wednesday, Murkowski referenced the “bipartisan concerns on [Binz’s] efforts to recruit support for his nomination” as the key difference between Binz and McNamee.
Prior to McNamee’s committee vote last week, Cantwell recalled the Binz controversy.
“It was not that long ago that this committee refused — refused — to confirm the nomination of Ronald Binz to the commission because of his support for renewable energy,” she said.
After the committee vote, Murkowski was asked by reporters about Cantwell’s comments on Binz and Earthjustice’s Kim Smaczniak’s tweet asking “What happened to the Binz test?”
“I don’t know that there was ever a ‘Binz test,’” Murkowski said. “If there was, I wasn’t [giving] that. I have to look at every individual that comes before me, I have to ask the questions and make that determination.”