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US Senate Democrats urge McNamee to avoid coal, nuclear rescue efforts at FERC

A group of U.S. Senate Democrats asked new Federal Energy Regulatory Commission member Bernard McNamee to recuse himself from any matters at FERC that touch on his past work as a U.S. Department of Energy lawyer to save financially struggling coal-fired and nuclear power plants.

The lawmakers also expressed concern over McNamee's past criticisms of renewable energy, viewpoints they said showed "a strong bias against" those resources.

"We urge you to recuse yourself from any future FERC proceedings where your impartiality could be questioned based upon your past statements, positions, or work on the DOE NOPR [notice of proposed rulemaking]," a group of 16 Democrats and one Independent senator said in a Dec. 12 letter to McNamee.

The request came after similar calls from environmental and legal groups who said McNamee's involvement in the DOE's coal and nuclear rescue efforts should disqualify him from related matters at the commission. McNamee was the DOE's deputy general counsel for energy policy in September 2017, when Energy Secretary Rick Perry asked the commission for a rule that would ensure full cost recovery for plants in wholesale markets that stored at least 90 days of fuel onsite — criteria that only nuclear and some coal plants could meet.

FERC unanimously rejected the proposal but launched a proceeding to identify and address regional grid operators' resilience concerns, including from plant retirements. That review is ongoing and could eventually prompt action from FERC that may touch on price formation for coal and nuclear facilities in competitive markets.

The lawmakers also said comments McNamee made earlier in 2018 while working recently for the Texas Public Policy Foundation "display a pronounced preference for fossil fuels and nuclear energy, and at a minimum suggest a strong bias against renewable energy technologies." At an event the foundation hosted in February, McNamee said renewable power "screws up the whole physics of the grid" and compared environmental groups challenging fossil fuel projects to tyrants.

"We believe that the viewpoints evident from the thrust of the NOPR, with its emphasis on propping up uneconomic coal and nuclear plants, along with statements you made more recently favoring fossil fuel and denigrating renewable resources, could present an appearance of a lack of impartiality in carrying out your responsibilities as a FERC Commissioner," the senators said.

The Dec. 12 letter followed a brief the Harvard Electricity Law Initiative filed with FERC asking that McNamee recuse himself from two proceedings at FERC. The first is a request for rehearing on FERC's rejection (FERC docket RM18-1) of the DOE NOPR. The second is FERC's broad grid resilience review (FERC docket AD18-7) launched after the commission rejected the DOE's proposal.

More broadly, the law group also said McNamee should step down from any proceedings that involve rates for "fuel-secure" generators. Although FERC rejected the NOPR, the DOE has considered other options for propping up financially vulnerable coal and nuclear plants, including forming a draft plan that would require grid operators to buy power or capacity from certain "fuel-secure" plants while the federal government determines what energy assets may be critical to national security and defense.

The Trump administration is said to have shelved the draft plan, but the push for relief from government and industry could mean FERC takes up similar matters in the future.

In their Dec. 12 letter, the senators asked McNamee for an update by Jan. 9 on what specific guidance FERC's ethics officials have given him on which topics he can and cannot participate. FERC spokesman Craig Cano said the commission cannot comment on letters from members of Congress but that recusal determinations "are made on a case-by-case basis."