After dust-up between FERC commissioners, Glick ponders rules for open meetings

Following an unusually combative Federal Energy Regulatory Commission agenda meeting, Chairman Richard Glick May 21 said he was mulling whether written rules were needed governing FERC's open meeting procedures, as well as questioning whether his colleague's surprise actions had damaged the trust needed among commissioners.

Glick's comments, in a wide-ranging interview with S&P Global Platts, came a day after long-running divisions over climate considerations in natural gas certificates spilled over into a procedural dust-up at the May 20 open meeting.

The display of tensions came as FERC faces challenging policy questions, such as how to update its pipeline certificate approach, modernize wholesale power markets and encourage transmission investment in a time of energy transition.

FERC ultimately approved the two natural gas projects on the meeting agenda, though at first it appeared the votes were lacking. What rankled Glick was a surprise move by Commissioner James Danly to amend the orders during the open meeting, without sharing amendment language with other members ahead of time.

"I said before I think there was deception — what Commissioner Danly did — and I wonder if other commissioners are going to trust him enough in the future to work with him," he said, adding he harbored such concerns. "I've tried to make it a situation where we're trying to work with each commissioner and try to compromise where we can. I'm proud of compromises that we've achieved. But it's a two-way street."

Danly did not immediately respond to a request for comment, but during the open meeting characterized his amendment as a pragmatic way to break a logjam and remove a legal infirmity in the orders. He suggested the idea came to him late at night, following some frustration with the internal deliberations. The amendment in question sought to clarify that GHG data in the orders was for informational purposes only and did not set precedent.

While such interaction has not been typical over the past decade or so, FERC commissioners in the past have engaged in open debate on amendments during commission meetings.

Glick said during the interview that he was surprised to learn that FERC lacks written rules on procedures on such issues.

"I've talked to our general counsel and we're going to work on a set of rules for procedures going forward because there needs to be a process for knowing when an amendment can be offered, how an amendment can be offered, what happens at commission meetings depending on scenarios," he said. "We're going to make an effort to find some greater transparency both for us among the commissioners but also for the public," he said.

Procedural clash

In a brief interview May 21, Commissioner Allison Clements also shared qualms about the turn of events.

"I am also concerned about the impact on our ability to get to substantive outcomes," she added. "We are five commissioners with five different legal philosophies, and the only way we can be confident that we are engaged in reasoned decision making is if we engage in good faith," she said. "What an important set of issues the commission has before it now and in the coming years, and my hope is that we continue to take them on in a collaborative fashion."

Commissioner Mark Christie, for his part, emphasized the gas project orders made it through in the end.

"Bismarck said two things you do not want to watch being made are sausage and legislation, so regardless of the aesthetics yesterday we achieved two good results by approving two projects that are vitally needed to serve the public," he said in an email.

Commissioner Neil Chatterjee said what happened was "not in the normal course for open meetings in recent memory."

"The reason our open meetings often start late is because commissioners and their advisors are hashing out last-minute details and seeking compromise, so we can vote the orders on the agenda in an orderly fashion," Chatterjee said in an email. Whereas Danly chose to play that out in the open meeting, Chatterjee said he wouldn't have made that choice, in part because being transparent with colleagues helps build trust and makes it easier to compromise.

"We're a regulatory body that oversees a significant slice of the US economy and our actions matter. It's important for us to provide steady, sure-footed leadership," he added. "Flashy stunts don't typically project leadership."

Still, one long-time FERC observer and former commission general counsel said what happened was not outside the historical norm.

"Without taking sides, over the years, there have been literally hundreds of FERC orders amended and voted on at the table during an open meeting with new language proposed by a commissioner in the way Commissioner Danly did today," said William Scherman of Gibson, Dunn & Crutcher. "There was nothing procedurally irregular or legally improper in what he did. It happened all the time."