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FERC commissioner LaFleur laments spread of 'polarization' to independent agency

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FERC Commissioner Cheryl LaFleur's term expires after June 30, but she plans to serve at the commission for some time past that date.

Source: Associated Press

Federal Energy Regulatory Commission member Cheryl LaFleur on May 7 lamented what she described as the spread of political division to an independent agency that has experienced upheaval and tragedy in recent years.

LaFleur, currently FERC's longest-serving member whose term expires at the end of June, delivered her remarks during a speech before members of the Energy Bar Association at an event in Washington, D.C.

Looking back on her nine years as a FERC commissioner, the Obama appointee and former CEO of National Grid USA said she was proud of the bipartisan compromises the independent, quasi-judicial federal power regulator has achieved during her tenure. But she said unusually high turnover including the recent death of a chairman and an uptick in the number of partisan splits on votes has taken a toll at 888 First Street, where FERC is headquartered in northeastern Washington, D.C.

"I've thought a lot about what happened, and in part, I think the polarization of Washington, D.C. and societal rifts on big issues have sort of spread to 888 First Street," she said.

'A major blow to the agency'

LaFleur took specific aim at a September 2017 proposal from the U.S. Department of Energy that would have directed FERC to establish new market rules to compensate uneconomic coal- and nuclear-fired power plants.

LaFleur said the proposal landed "like a thunderclap" at FERC headquarters just a month after the five-member commission regained a voting quorum with the confirmation of Trump appointees Neil Chatterjee and Robert Powelson following the resignation of former Chairman Norman Bay.

"It was very divisive, and it soaked up a lot of time and energy that we could have directed at the backlog of pending policy dockets," LaFleur said of the proposal.

However, LaFleur praised Kevin McIntyre a Republican who along with Democrat Richard Glick was confirmed n November 2017 to sit at the commission for how the commission handled what critics derided as a costly bailout plan.

With McIntyre as a chairman, FERC in January 2018 unanimously rejected the DOE proposal. "I give Kevin a lot of credit for bringing us together in a unanimous decision in the end," LaFleur said. "That was what the record required, but it also protected FERC's independence."

LaFleur also said she gave Republican commissioner Robert Powelson "a lot of credit for holding his ground on his pro-market views."

But the five-member commission's solidarity was short-lived: Powelson left FERC in August 2018 to become the president and CEO of the National Association of Water Companies and McIntyre died from a brain tumor Jan. 2. "The loss of Kevin was a major blow to the agency on both a personal and professional level," LaFleur said.

Republican Bernard McNamee, who helped develop and heavily promoted the Trump administration's coal and nuclear subsidy proposal as DOE general counsel, was narrowly confirmed by the Senate in December 2018 on a party-line vote.

"In retrospect, it's hard to deny the collective impact of all these events," LaFleur said. "Particularly the continued changes in commission membership and leadership, and our underlying policy disagreements ... it's hard to deny that that hasn't had a significant impact on our work as a commission."

'Loudest with one voice'

LaFleur said the reconstituted commission has seen an increase in dissents and 2-2 partisan vote splits. She noted that a search of FERC's notoriously fickle e-library filing system the previous night revealed she has written separately 36 times in 2018 and 10 times already in 2019. "We all know e-library is never wrong," she joked.

On a more serious note, LaFleur said reaching a consensus on how to address issues with climate change implications has been among the most difficult tasks FERC has faced. She said the disagreements first came to a head in May 2018 when the commission voted 3-2 to no longer disclose and consider downstream greenhouse gas impacts except in certain limited circumstances reversing a policy the commission had implemented during the previous two years under former Chairman Bay's leadership.

LaFleur added that those disagreements have deepened as the order has come under the scrutiny of federal judges for the U.S. Court of Appeals for the District of Columbia Circuit considering petitions for review of FERC orders backing two gas infrastructure projects.

Invoking the words of former Commissioner Joe Kelliher, LaFleur said striving to reach consensus is important because "the commission speaks loudest when it speaks with one voice."

"If you keep changing your positions by who's in the seats, it doesn't promote regulatory continuity and regulatory certainty for the regulated community," she said.

LaFleur had hoped to stay at the commission for another term, but in January she announced that she will not seek a third term. However, she reiterated May 7 that she plans to stay on at FERC after her current term expires June 30. With President Donald Trump yet to nominate a replacement, LaFleur could remain a commissioner until Congress adjourns at the end of 2019 if her successor is not confirmed before then. But a spokesperson for LaFleur stressed May 6 that she could leave FERC earlier.