Dive Brief:

• Democrats on the Senate Energy and Natural Resources Committee unsuccessfully sought to postpone a Tuesday vote on Bernard McNamee's nomination to the Federal Energy Regulatory Commission after the release of a video that shows the nominee criticizing renewable energy and environmental groups.

• Democrats asked McNamee to answer written questions about comments claiming renewable energy "screws up" the grid and environmental groups want to "return us to … administrative tyranny" before his nomination can move forward, Peter True, press secretary for Democrats on the committee, told Utility Dive.

• Procedural delays are sometimes granted to the minority party, but Republicans, who control the committee, will press ahead with a Tuesday vote on McNamee, a spokesperson for Chairman Lisa Murkowski, R-Ak., told Utility Dive. The senator said before the video's release that she hopes to have McNamee confirmed before year's end.

   

Dive Insight:

Scheduling a committee vote on McNamee shows that Murkowski's committee is preparing to move forward with his confirmation despite a video that shows him criticizing entities that regularly do business before FERC.

In a February speech before Texas lawmakers, McNamee called for a "unified campaign" to build public support for fossil fuels and criticized renewable energy in a thinly veiled reference to the political controversy surrounding climate science.

"Renewables, when they come on and off, it screws up the whole physics of the grid," McNamee 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."

McNamee also singled out environmental groups like the Natural Resources Defense Council, Environmental Defense Fund and EarthJustice for particularly pointed criticism, saying they want to "return us to the administrative tyranny they've pushed for so long."

"The green movement is always talking about more government control because it's the constant battle between liberty and tyranny," he said. "It's about people who want to say I know what's better for you."

Senate Democrats made those comments the subject of a new round of written questions that was to be sent to the nominee by Ranking Member Maria Cantwell, D-Wa., Monday afternoon, True told Utility Dive Monday morning.

"Democrats will follow up in writing with additional questions for the record thanks to the additional reporting that has come to light," True said. "We look forward to those answers in writing before his nomination can move forward."

Republicans, however, declined to delay the vote.

“The business meeting will be held [Tuesday] morning at 10 a.m. as scheduled,” Nicole Daigle, communications director for Republicans on the committee, said in an email.

A summary video of McNamee's speech was posted by Utility Dive last Tuesday, after which the Energy and Policy Institute, a liberal watchdog group, posted the full video on its YouTube page.

The political nature of McNamee's comments is unusual for a potential FERC appointee, whose commissioners typically pride themselves on a "fuel neutral" approach to energy regulation. Some insiders say it should disqualify McNamee from consideration.

"These comments show extreme bias for fossil and nuclear and against renewables and environmental groups, and belie his Senate hearings claim that he can serve as an independent arbiter at FERC," Alison Silverstein, a staffer for former Republican FERC Chairman Pat Wood III, said in an email to Utility Dive. "McNamee objects to people who want to say, 'I know what's better for you,' while asserting without factual basis that coal and nuclear are better for us than renewables. The statements in this video should disqualify him from the FERC nomination."

Energy lawyers also point to potential legal difficulties for the commission if McNamee is confirmed. Because he directly criticized environmental groups, Ari Peskoe, director of the Environmental Law Initiative at Harvard, says courts could invalidate orders he participates in that include those organizations.

Case law does not establish a hard line with regard to bias. Challenging McNamee's decision not to recuse himself from a docket based on filings from enviro groups is certainly not a slam dunk. But he's a procedural liability for FERC. All risk, no gain.

— Ari Peskoe (@AriPeskoe) November 26, 2018

Other critics point to what they say is a double standard on Murkowski's treatment of FERC nominees. In 2013, the Alaska senator helped sink President Obama's nomination of Colorado utility regulator Ron Binz to be FERC chairman over what his critics said was a pro-renewable energy bias. Now clean energy backers say she should apply the same logic to McNamee's comments.

"[I]n spite of this video evidence of McNamee's bias, [Senate] ENR is trying to jam him through this Congress," EarthJustice attorney Kim Smaczniak wrote on Twitter. "Outrageous. What happened to the Binz test?"

McNamee gave the speak to Texas lawmakers during his stint the conservative Texas Public Policy Foundation, where he worked between jobs at the Department of Energy this year. In an emailed statement through a FERC spokesperson, McNamee said he would separate his past policy work from his considerations as a regulator.

"I recognize the significant role that renewables play in our energy mix, and I stand by my statement that if confirmed as a Commissioner, I would be an independent arbiter basing my decisions on the law and the facts, not politics," McNamee wrote.

That explanation is similar to the one McNamee gave senators during his confirmation hearing this month, when he pledged to separate his decisions as a regulator from his previous role at DOE, where he helped craft a coal and nuclear bailout proposal that FERC rejected early this year.

"I understand the difference in my role as a lawyer when I worked on [the bailout] proposal ... and what the role of FERC is," McNamee told lawmakers, but he refused to commit to recuse himself if such issues came before the commission again.

At the time, Murkowski said she was satisfied with the explanation.

"What I took away was that his role when he was at the Department of Energy was to take the Secretary's directive and to draft that policy," she told reporters after the hearing. "His role at the FERC would be different than that and I would expect that he would respect those lanes."

If McNamee is approved by the committee, he will move to consideration by the full Senate, who could approve him as soon as next month. 

This post has been updated to include comment from Nicole Diagle.