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US Senate panel again moves FERC nominee amid debate over partisanship

The U.S. Senate Energy and Natural Resources Committee on March 3 voted 12-8 to support the nomination of James Danly to join the Federal Energy Regulatory Commission amid continued complaints from Democrats about the White House’s failure to pair him with a nominee from the minority side.

Advancing the nomination of Danly, who is currently FERC’s general counsel, to become a commissioner would help ensure a quorum needed for the agency to make major decisions. The five-member commission is currently down to three members, and Republican Commissioner Bernard McNamee has announced plans to step down later this year.

During the March 3 committee meeting, Senator Angus King, I-Maine, questioned the decision by Committee Chairman Lisa Murkowski, R-Alaska, to move to a vote, suggesting the panel had ceded its leverage to the White House.

“The way to get the other nominee is to say no to this one until we get the other nominee,” King asserted. “Why didn’t we hold and as a committee say we want both nominees together, and we’re not going to hold hearings and we’re not going to move until then.”

“Our challenge is that we’ve had empty seats on the commission for far too long," Murkowski replied. She noted that the seat Danly would fill has been vacant for over a year, whereas the Democratic vacancy has been open since early August. Reiterating her desire to see a full complement of FERC commissioners, Murkowski said she would move quickly on a Democrat nominee but can only act after the White House presents a nominee.

The committee’s ranking Democrat, Sen. Joe Manchin of West Virginia, joined Republicans in voting to approve Danly. However, he promised that if the president does not pair the next nomination of a Republican when McNamee leaves with a Democrat, “we should fight to the nth [degree] to make this committee work again, to make sure FERC is nonpartisan, the way it should be, [with] the pairings that we’ve always had.”

Manchin said he supported Danly's nomination because he previously made a commitment to Danly after finding him well-qualified, and at the time he saw positive movement on the potential nomination of attorney Allison Clements, a Democrat. “That didn’t happen,” Manchin said, calling it “a shame that the politics have entered into it.”

Multiple Democrats on the panel lamented what they described as increased partisanship at FERC and urged a return to the pairing of Democrat and Republican nominees to restore a more bipartisan approach.

“I think the FERC is not working today,” said Senator Martin Heinrich, D-N.M. “The FERC has become a political ping pong match like everything else around here. ... If you look at some of the capacity rulings and other things coming out of the FERC today, it is reprehensible and I think that is on all of us.”

Senator Ron Wyden, D-Ore., warned that if “you pass this nominee now, you stack the deck at FERC. It will be three Republicans and one Democrat.” Wyden added that his state is at the center of needing thoughtful bipartisan work because the Jordan Cove LNG project to be built in Oregon is under consideration.

Exactly when Senate Majority Leader Mitch McConnell will schedule a floor vote on Danly, whose confirmation was held up on the floor late last year, is unclear. While Senate Minority Leader Chuck Schumer had previously threatened to stall energy legislation to force the White House’s hand on a FERC pairing, that threat did not appear to materialize this week.

Murkowski told reporters after the meeting she was optimistic that her broad bipartisan energy bill, S. 2657, the American Energy Innovation Act, would be on the Senate floor this week. She said she did not know about the timing of action on Danly, as she was focused on the timing of the energy bill.

ClearView Energy Partners in a research note said the timing of Danly's confirmation could be important for action in the FERC dockets related to the transmission rate of returns for New England transmission owners. It suggested FERC lacks a quorum on that issue because Commissioner Richard Glick appears recused from the matter.

During the committee meeting, Murkowski noted that with the retirement of McNamee from FERC would present another opportunity to pair a Democrat with a Republican nominee.

Maya Weber is a reporter with S&P Global Platts. S&P Global Market Intelligence and S&P Global Platts are owned by S&P Global Inc.