The prolonged and unexplained delay in the swearing-in of the attorney picked by President Trump to lead the Federal Energy Regulatory Commission has the Washington rumor mill grinding, with FERC facing two important deadlines in the next week.
Kevin McIntyre, co-leader of the global energy practice at the law firm Jones Day, was confirmed by the Senate on Nov. 2 to take the gavel from Neil Chatterjee. McIntyre would serve out the remainder of a term that ends June 2018 and a full term that ends June 2023.
FERC hasn’t explained why McIntyre hasn’t been sworn in. Chatterjee told reporters after FERC’s meeting in Washington last week that the delay is a matter of "timing, prioritization, getting documents signed."
"People have to unwind their own professional obligations and their current jobs before they can transition over," he said.
But few past FERC commissioners have taken so long with that task. Jon Wellinghoff, FERC’s longest-serving chairman, was sworn in 17 days after his confirmation in the summer of 2006. He served seven years on the commission, including four as chairman.
Without an explanation from FERC, rumors have filled the vacuum.
Several sources who closely follow FERC told E&E News they suspect Chatterjee will remain chairman until Dec. 8, when he can install White House-preferred appointees into key positions, notably at the Office of Enforcement and Office of Energy Market Regulation.
Why the delay? An Office of Personnel Management rule states that career appointees — such as the current heads of those offices — cannot be reassigned involuntarily until 120 days after the appointment of an agency chief. Chatterjee will have been FERC chairman for 120 days on Friday.
John Estes III, a partner at law firm Skadden, Arps, Slate, Meagher & Flom LLP, is reportedly the White House’s preferred pick to lead enforcement (Greenwire, Dec. 1).
McIntyre hasn’t made a public appearance since his Sept. 7 confirmation hearing, but he did attend a meeting at the White House Personnel Office last week, according to a source with knowledge of the meeting.
"When you combine the early picks with possible Dec. 8 deadline, that’s the speculation, that these are White House decisions, which would be highly unusual for FERC," said a lobbyist who asked to remain anonymous to be able to speak candidly. "The proof of that will be whether there are replacements named on Dec. 8 to grease the skids for a Trump agenda. It may not come to pass."
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who pushed for McIntyre’s Senate confirmation, said she had thought that he had already been sworn in.
"I just learned a couple days ago that he had not yet been sworn in," she said.
But she also said she’s not worried about the delay.
"I would be frustrated if the FERC lacked a quorum and they were not able to conduct their business. But they’ve been able to conduct their business — in fact, they’ve been moving relatively aggressively through their pile of what was left backed up," she said.
"I would imagine that we would see Mr. McIntyre sworn in hopefully very soon."
Also complicating McIntyre’s entrance, sources say, is that FERC has a Monday deadline for deciding on a contentious grid-pricing proposal from Energy Secretary Rick Perry.
Chatterjee has been pushing for FERC to act on the proposal to help save coal and nuclear plants from premature power plant retirements. Most recently, he said he wants an "interim solution" to help support the plants while FERC studies the issue in coming years.
McIntyre hasn’t publicly commented on the Department of Energy proposal, but what he has said in public forums, most notably at his confirmation hearing, has not been promising for the plan’s fate.
"FERC is not an entity whose role includes choosing fuels for the generation of electricity," he said (E&E Daily, Sept. 8).
Here’s how the situation could play out: McIntyre could join FERC in the next week and either reject or accept DOE’s proposal, the same options that Chatterjee has now. He could also decide to extend the decision; while Chatterjee has repeatedly called it a statutory deadline, there is virtually no penalty for FERC if the agency decides to take a little more time.
Or McIntyre could join FERC after next Monday, allowing Chatterjee to finalize a decision on the Perry proposal.
FERC watchers said McIntyre is likely eager to get started.
"He’s been handed the keys to the kingdom. He’s chairman of FERC," said Tyson Slocum, Energy Program manager at Public Citizen. "You’d think he’d be rushing toward the role. Since he’s not, I think as a public figure he owes an explanation as to what’s going on."
Reporter Rod Kuckro contributed.