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Advocacy group sues DOE, FERC for documents related to coal and nuclear proposal

The Union of Concerned Scientists filed a lawsuit Nov. 13 seeking to compel the U.S. Department of Energy and Federal Energy Regulatory Commission to produce records related to a controversial bailout proposal for aging coal- and nuclear-fired power plants.

The suit was filed in the U.S. District Court for the District of Columbia only days before DOE general counsel Bernard McNamee who heavily promoted the proposal is scheduled to face U.S. Senate confirmation hearings Nov. 15 as President Donald Trump's nominee to serve as FERC's fifth commissioner. The advocacy group in its complaint alleged that the DOE and FERC have failed to comply with applicable time-limit provisions under the Freedom of Information Act.

As the DOE's deputy general counsel, McNamee heavily promoted Energy Secretary Rick Perry's September 2017 proposal to make grid operators cover all the costs of power plants in wholesale markets that store at least 90 days of fuel onsite — a description that mainly would have applied to coal-fired and nuclear generators. FERC in January voted 5-0 to reject the DOE's proposal, however, finding it legally deficient and unsupported by the record.

If approved by the Senate, McNamee would fill the seat vacated by Robert Powelson, who left the commission in August to become president and CEO of the National Association of Water Companies after serving at the agency for only a year. UCS filed a series of Freedom of Information Act requests with both agencies in August seeking any email correspondence and calendar invitations sent between specific government officials including McNamee and various coal interests such as Murray Energy, the National Coal Council, Alliance Resource Partners LP and Peabody Energy Corp.

The DOE and FERC both acknowledged having received the requests, but FERC alone has produced documents so far, said Robert Cowin, director of government affairs with the UCS Climate and Energy program. "We think it's really important to understand how deeply involved the nominee, Bernard McNamee, was in the development of" the DOE proposal, Cowin said Nov. 13 in an interview. "FERC is such an important institution that we really need to keep it independent from political interference."

Cowin said, however, that FERC has produced only a limited number of documents, none of which have "been helpful so far." The group is seeking a court order that would require the DOE and FERC to conduct searches reasonably calculated to uncover all records responsive to its requests and produce the documents by an appropriate date.

The DOE and FERC did not respond to a request for comment Nov. 13.

The case is Union of Concerned Scientists v. U.S. Department of Energy and Federal Energy Regulatory Commission (No. 18-cv-2615).