Senate ENR Committee Holds Hearing on FERC Commissioner Nominees

Authors: Kimberly Frank, Sandra Safro, David Wochner, and Patrick Metz

On September 16, 2020, the Senate Energy and Natural Resources (ENR) Committee held a hearing to consider the nominations of Mark Christie and Allison Clements to the Federal Energy Regulatory Commission (FERC).  Chairman Murkowski and Ranking Member Manchin focused their preliminary comments on the importance of ensuring that FERC has a full complement of five Commissioners and expressed interest in acting quickly to move through the confirmation process.  However, there was no indication of the specific timing of the Senate ENR and floor votes that would be required to confirm the nominees.  Several Senators praised both Christie and Clements, and no Senator expressed opposition to the nominees, though Clements received a few pointed questions from Senators Gardner and Lee about her time at the Natural Resources Defense Council.

Both Christie and Clements avoided taking controversial stances, and, in line with the practice in such hearings, the nominees avoided comment on cases that are or could come before the Commission.  The hearing largely focused on issues arising from FERC’s role in the electric industry, including the changing mix of generating resources, issues with grid reliability (and in particular, the recent California blackouts), cybersecurity threats, carbon pricing in the regional markets, and the dependence of the electric grid on natural gas pipelines.  Both nominees repeatedly expressed support for FERC’s longstanding commitment to fuel and resource neutrality, emphasized the importance of a diverse mix of resources, and highlighted the role reserved to the states under the Federal Power Act to guide generation development.  In response to a question on FERC’s role in protecting markets from manipulation, Christie highlighted the role of market monitors and the necessity of enforcement.

The hearing also focused substantial attention on infrastructure projects, and especially on FERC’s role in permitting natural gas pipelines and LNG terminals.  Clements and Christie pledged to consider applications under Sections 3 and 7 of the Natural Gas Act based on the facts developed in the record, and each expressed an appreciation for the gravity of decisions that grant eminent domain authority and that seriously affect landowners.  Senators also touched on the question of whether downstream greenhouse gas (GHG) emissions are reasonably foreseeable in a NEPA analysis – an issued that was addressed, in part, in the DC Circuit’s 2017 Sabal Trail decision.  In response to a question from Senator Lee, Clements stated that she understood the relevant precedent to mean that downstream GHG emissions were reasonably foreseeable.  In an exchange with Senator Heinrich, Christie stated that he did not want to pre-judge requirements imposed by the Sabal Trail decision.  As to specific projects, Senator Wyden asked Clements about the Jordan Cove LNG export facility.  In response, Clementspointed out that the  Department of Energy (not FERC) determined whether exports were in the public interest and focused on FERC’s statutory role in approving the LNG facility if merited by the facts.

Neither nominee commented on Senator Cortez Masto’s questions regarding FERC’s recent issuance of preliminary permits for the proposed Walker Lake pumped hydropower facility in western Nevada, except to commit to careful review of the facts.