A trio of environmental and science groups asked that new Federal Energy Regulatory Commission member Bernard McNamee recuse himself from matters related to his past work at the U.S. Department of Energy to aid uneconomic coal-fired and nuclear power plants.
The recusal motion came on the heels of similar requests from the Harvard Electricity Law Initiative and a group of Democratic lawmakers in the U.S. Senate. Those stakeholders said McNamee's role as a DOE lawyer who helped Energy Secretary Rick Perry craft an ill-fated plan to subsidize financially struggling coal-fired and nuclear generation should disqualify him from any related proceedings at FERC.
They also pointed to McNamee's involvement in a draft plan the DOE developed that would require regional grid operators to buy power or capacity from "fuel-secure" generators, including coal and nuclear units, while the federal government determined what energy resources may be critical to national defense.
"One can presume ... that Commissioner McNamee intends to decide these matters impartially, but nevertheless conclude recusal is warranted," the Natural Resources Defense Council, the Sierra Club and the Union of Concerned Scientists said in a Dec. 18 filing with FERC. "Maintaining public confidence in the integrity and impartiality of the commission and its decisionmaking is paramount, and recusal under these circumstances serves as a critical prophylactic to safeguard due process, rule of law, and perception of fairness."
As did the Harvard Electricity Law Initiative, the groups asked that McNamee recuse himself from a pending request for rehearing on FERC's unanimous decision in January to reject Perry's proposal (FERC docket RM18-1). McNamee must also not participate in a broad grid resilience review (FERC docket AD18-7) that FERC launched after dismissing the DOE plan, the groups said.
"As a matter of law, Commissioner McNamee cannot participate as decisionmaker on the same case in which he previously participated on behalf of a separate entity, the Department of Energy," the Dec. 18 filing said. Doing so, the groups asserted, would violate the "venerable prohibition against a man standing judgment in his own cause" and breach due process protections that bar agency adjudicators from deciding on matters where they have a direct personal interest that could affect their impartiality or create the "appearance of bias."
During his confirmation hearing, McNamee said his job at FERC would be different than his role at the DOE and that he would decide on cases at the commission based on the law and facts. Although he did not commit to recusing himself from particular matters, McNamee vowed to consult with FERC's ethics counsel on proceedings where he may not be able to participate.
In addition to his work on the DOE resilience plan, McNamee drew the ire of renewable energy supporters over comments he made while working for a Texas non-profit organization that renewable power "screws up the whole physics of the grid." He also said environmental groups, including the NRDC, were responsible for inflicting "administrative tyranny" on fossil fuel developers, a stance that critics say could create the appearance of bias in any FERC matters where those groups are parties.