FERC picks Clements, Christie field questions on impartiality, climate at Senate hearing

Washington — The latest two nominees to fill open seats at the Federal Energy Regulatory Commission pledged to be objective, impartial regulators if confirmed, and stressed during their Sept. 16 confirmation hearing that the facts and the law would guide their decisions on contentious topics that some view as having become more political in recent years.

Grilled by members of the Senate Energy and Natural Resources Committee, Virginia State Corporation Commission Chairman Mark Christie and energy attorney Allison Clements were careful not to veer into prejudging any issues pending before the commission.

Christie, a Republican, stood by his 16-year record as a state regulator and made several mentions of the need to keep consumers in mind when making policy decisions that could affect electricity rates or impact their property.

"Where the law does give discretion, my belief is that an agency should be deeply sensitive to the impacts of its decisions on consumers," he said. "As a state regulator, I'm intensely aware that while FERC does not regulate retail rates, what FERC does affects retail rates, and with millions of Americans struggling to pay their bills, FERC should always be sensitive to costs to consumers as it fulfills its duties."

Clements, the Democratic nominee, fielded numerous questions on her past role representing clean energy interests and sought to assure lawmakers that consideration of climate and environmental impacts would factor into her decisionmaking only in cases where the law provides for FERC to weigh those concerns.

"Under the just and reasonable standard, that is not the place where a lot of the concerns which are real and do get considered in records on environmental justice, on impacted communities come into play," she said. "When we're talking about specific approvals of infrastructure, whether that be an interstate pipeline, an LNG facility or a hydropower relicensing, that's the place where under [the National Environmental Policy Act] environmental considerations come into play directly under the law."

Independent regulator

Committee Chairman Lisa Murkowski, Republican-Alaska, reminded both nominees that "FERC must function as an impartial, economic regulator, not as an agency responsible for implementing the administration's policy decisions." She asked for assurances that they could be independent, impartial regulators as well as specific examples demonstrating their ability to do so.

In response, Christie pointed to his nonpartisan work on the SCC without political influence, while Clements noted that her time representing varied interests, from environmentalists to utilities to infrastructure project lenders, gave her perspective on different viewpoints that she planned to draw upon when applying the law to the specific facts of cases before FERC.

Senator Joe Manchin of West Virginia, the top Democrat on the Senate panel, asked for the nominee's views on natural gas pipeline permitting.

Clements, who has taken flak from conservatives for her environmental advocacy work with the Natural Resources Defense Council, said gas was "a critical component of today's diverse electricity system," accounting for 38% of the generation mix in 2019.

She said each gas pipeline application came with a complex record of facts both from the applicant and affected landowners. "If confirmed, I would commit to going into each of those proceedings with an open mind and reviewing the specific facts of that case to apply Section 7 [of the Natural Gas Act] in each instance."

Christie said he agreed with Clements, adding that "if eminent domain is going to be used, that's going to take somebody's property, and you have to be very sensitive to that. So need [for the project] has to be proven by the facts, and then of course, you apply the law to the facts."

Reliability, climate issues

Later pressed on her past work at NRDC, Clements said that FERC had no authority to favor any resource type or fuel source over another in ensuring just and reasonable rates. However, she said she subscribed to former Republican Commissioner Philip Moeller's belief that "the commission has to be technology neutral but it cannot be reliability neutral."

In that regard, she said "there might be individual characteristics of different kinds of resources that bring benefits to the system, and it's FERC's job both to ensure that we have the right set of reliability services for the grid as well as to allow resources to compete to provide them on a nondiscriminatory basis."

Clements clarified that she left NRDC's Sustainable FERC project in 2015, and while there focused on power rather than natural gas issues. "I honestly couldn't articulate the fossil fuels agenda for the organization right now," she added when pressed on whether she was in agreement with the group's positions.

Asked whether FERC should, when applicable statutes give discretion, consider the potential climate impacts of its decisions and the best available science, Christie said "you use the best available information in any case."

"FERC is a primarily economic regulator but has environmental duties. I would pledge to you to fulfill the environmental duties that FERC has," Christie continued. "As a regulator, I want to have the most complete factual record I can, and I want to go with the facts and go with the realistic facts, taking all those things into consideration."