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As FERC chief, McIntyre kept agency close to tradition, engaged with critics

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As FERC chief, McIntyre kept agency close to tradition, engaged with critics

In less than a year at the helm of the Federal Energy Regulatory Commission, Kevin McIntyre kept the commission close to its historical course on reviews of natural gas infrastructure projects, even as he listened to Democratic colleagues and critics who pushed his Republican majority to expand consideration of the projects' effects on climate change.

McIntyre joined FERC as chairman Dec. 7, 2017. He led the commission until Oct. 24, 2018, when he stepped aside due to health issues that followed a diagnosis of a brain tumor in 2017, at which point Commissioner Neil Chatterjee took over as chairman. McIntyre stayed on the commission, but his participation was limited. He died Jan. 2.

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Former Chairman of the Federal Energy Regulatory Commission Kevin McIntyre.

Source: Federal Energy Regulatory Commission

Tony Clark, a former FERC commissioner who is now a senior adviser at the law firm Wilkinson Barker Knauer LLP, described McIntyre as a commission chairman in the original mold. "I thought he did a good job carrying out FERC's mission in terms of tradition," Clark said in an interview before McIntyre died.

Parties that often oppose each other in FERC reviews of natural gas pipelines were united in their praise of a chairman who considered both sides in preparing the commission's decisions and policy. Joan Dreskin, vice president and general counsel of the Interstate Natural Gas Association of America, said that as chairman, "Commissioner McIntyre brought his strong legal background to a number of pressing issues, including pipeline certificate issues."

Natural Gas Supply Association President and CEO Dena Wiggins described McIntyre as a lawyer's lawyer. "We will miss his leadership and will miss even more deeply his presence in our lives," Wiggins said.

Even with a different view on the usefulness of natural gas infrastructure than the FERC chairman, the Natural Resources Defense Council recognized McIntyre for his willingness to work with all parties.

"Chairman McIntyre led FERC with a steady hand and with an emphasis on preserving open electricity markets and maintaining the independence of the commission," said John Moore, director of the Sustainable FERC project attached to the environmental group. "We especially salute his high civic calling. As we look to the future, we urge Congress, the administration, and the commission itself to preserve both the spirit and letter of fairness and evenhandedness that marked Chairman McIntyre's tenure."

FERC position on pipelines

After announcing early on that he was willing to take a fresh look at the FERC policy for reviewing natural gas pipelines, McIntyre used an order in an individual pipeline proceeding to nudge the commission back to its historical approach to examining public need for such projects and the projects' individual contribution to global climate change. The nudge followed a time when the commission's Democratic chairmen had begun expanding the scope of such analysis under pressure from federal appeals courts and stakeholders.

Under the Natural Gas Act, the National Environmental Policy Act and its own policy, FERC is required to assess both the environmental impact for a pipeline or an LNG export terminal and the public need for the project before the commission approves it. In the climate change category, FERC traditionally placed limits on its analysis, looking at just the local greenhouse gas emissions of a gas transportation project and not at emissions at the production end or the consumption end of the gas cycle, on the grounds that it was almost impossible to calculate an individual project's effect on the atmosphere. On public need, commission was satisfied with gas transportation deals called "precedent agreements" between a pipeline and its future customers as evidence of need.

The Republican majority on the commission and project developers still favor this approach, but Democratic commissioners, environmental groups and other stakeholders have said the reviews should take a broader look at environmental impact and need, and they have received some support from the courts.

In one of the biggest cases, the U.S. Court of Appeals for the District of Columbia Circuit stripped FERC authorizations in 2017 for a massive Enbridge Inc.-led pipeline project, agreeing with the Sierra Club and other environmental groups that the commission's review was inadequate because it lacked analysis of greenhouse gas emissions from power plants at the downstream end of the pipeline system, which had already begun operation at the time of the decision. In March 2018, FERC reissued the authorizations for the over $3 billion Sabal Trail pipeline and other components of the Southeast Market Pipelines project. The case has been highlighted by the two FERC Democrats on the five-seat commission, Cheryl LaFleur and Richard Glick, and cited by environmental groups challenging other commission pipeline orders.

"Anytime there is a turnover on the commission, you're going to have commissioners with very different views," Clark said. "The two Democratic commissioners expressed an interest in going in a direction that majority of the commission were probably not willing to go down, and sometimes that can cause a bit of division, which we've seen."

Speaking at an event in June 2018, McIntyre said the divide between Republican and Democratic commissioners had posed a challenge for FERC decisions on natural gas pipeline projects in court.

Review of pipeline permitting

Even though he stuck to the traditional ways at FERC, McIntyre showed he was not tied to the past. At his first monthly meeting as chairman, he stated that the commission would review its policy for issuing pipeline certificates. McIntyre said the energy world was changing and the commission should keep its policies up to date.

In response, opponents of fossil fuel infrastructure asked for big updates in the almost 20-year-old permitting policy, including expansions of climate and public need analysis and more opportunities for public comment during pipeline reviews. The gas industry recommended less dramatic changes.

McIntyre's fellow Republicans on the commission in 2018, commissioners Chatterjee and Robert Powelson, generally supported leaving the pipeline policy intact, noting that a robust pipeline infrastructure has important benefits for the U.S. LaFleur and Glick favored a larger overhaul and backed many demands of environmental groups. Complicating matters, Commissioner Powelson resigned in August 2018 and eliminated the Republican majority.

The different sides at FERC came into conflict before there was any significant progress on the policy review. Wars of words broke out as Democrats and environmental groups accused the McIntyre-led majority of making policy changes in individual pipeline decisions that would alter the outcome of the policy review. Now, after FERC collected about 3,000 comments from interested parties, the policy review is at least dormant, with Chatterjee in the chairman's seat and an incomplete FERC lineup.

The way forward

President Donald Trump nominated U.S. Department of Energy official Bernard McNamee on Oct. 5, 2018, to fill Powelson's vacant seat in an effort to restore the Republican majority, and he was sworn in Dec. 11, 2018. McIntyre's death leaves FERC again with a split between the two parties, increasing the odds of a deadlock on decisions on pipeline projects until Trump can put someone back in the seat.

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Chatterjee remembered McIntyre in an official statement Jan. 3. "During his tenure at the commission, Kevin exhibited strong leadership and an unmatched knowledge of energy policy and the rule of law," Chatterjee said. "He exemplified what it means to be a true public servant each and every day, no matter the challenges that lie ahead of him."

McIntyre will still influence the commission, including his attempt to keep FERC united through politics and difficult decisions with a focus on the law. Chairman Chatterjee credited McIntyre as the one who helped Chatterjee transform from a Republican congressional aide to a commissioner at an independent agency. Chatterjee told reporters shortly after he took over the chairman's duties from McIntyre that his predecessor had stressed the importance of the law, the record, and avoiding politics.