Former Commissioner Clark talks nominees, path to quorum

With President Trump nominating Neil Chatterjee and Robert Powelson this week to serve on the Federal Energy Regulatory Commission, how could the focus of the panel shift, and how quickly will business as usual be restored if the nominees are confirmed? During today's OnPoint, Tony Clark, a former commissioner at FERC and now a senior adviser with Wilkinson Barker Knauer, discusses the next steps for the commission as it seeks to restore quorum.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is Tony Clark, former commissioner at the Federal Energy Regulatory Commission and now a senior adviser with Wilkinson Barker Knauer. It's great to have you here.

Tony Clark: Good to be here, Monica.

Monica Trauzzi: It's a busy week for us!

Tony Clark: It has been busy.

Monica Trauzzi: Yes, some news this week that President Trump has nominated Neil Chatterjee and Robert Powelson to serve as commissioners at FERC. The commission has been without quorum since February, so these nominations have been highly anticipated and long awaited. What are your thoughts on the nominees themselves and the road ahead for each of them to confirmation?

Tony Clark: Sure — yeah, both very solid nominees, both well-known nationally and in Washington, D.C., and come from a long tradition of similar nominees to FERC, I mean people who have served in senior positions on Capitol Hill, people who've served on state regulatory commissions. I think in the case of Commissioner Powelson, he's at least the third or fourth NARUC president in recent history. I was one of them, but Nora Brownell, Colette Honorable was a former NARUC president that have made it to FERC, so very much in the mainstream of nominees.

Monica Trauzzi: Senate Energy and Natural Resources Chair Lisa Murkowski has indicated she'll work to move each nominee potentially separately and as quickly as possible. How quickly could we see a quorum re-established at FERC?

Tony Clark: Well, that's a good question. If you look historically probably the fastest that you've ever had a nomination to confirmation process — it might be somewhere in the two- to three-month time frame. Now mine, which was not a particularly controversial one and was a pair when I was paired with John Norris, that took about four or five months. That's probably a fairly typical path. There's a chance that it could be a little bit faster this time. There's certainly an urgency to the fact that the commission is down below a quorum, which has not happened in the past, so that might speak to them being able to get to it a little bit more quickly. But in any event, if they are able to get it in, say, less than two months, something like that, that would be the triumph of hope over experience, because the history of it is it takes a little bit longer.

Monica Trauzzi: So how do these nominees, should they be confirmed, change the political makeup and the policy focus on the panel? And do you think we'll begin to see this deference to states more so if we move towards this ...

Tony Clark: Well, there are some huge policy issues that are in front of the commission. In fact, there's just — there are a number of things that are teed up that haven't been able to be taken up because of the quorum issue. So I think that they're going to be — it'll be widely washed to look how they're going to deal with some of these around market issues that are coming up. FERC had a tech conference dealing with electricity markets where you have nominally restructured states that are now having a lot of subsidies that are pouring into the market, around the market, and are really becoming a bit of an existential crisis in some of these markets, so they're going to have to study that. There are issues with PURPA reform that have been teed up. There's a number of litigation efforts that have taken place in the courts and now the litigation is back in front of the commission and they need to make decisions on that, on things like ROE policy, the United v. FERC decision. So there's a lot of things like that — pipeline infrastructure is a huge issue. I think there's going to be a lot of people looking at the commission to see if there's a change in policy there — at the very least able to get to some of these applications that have had to wait in the interim of the quorum.

Monica Trauzzi: And how do you believe these nominees will influence the direction that's taken on these various decisions?

Tony Clark: Sure. Well, FERC itself is not a particular partisan place, so I mean, I suspect that — as an agency it's not one that makes huge shifts left or right. It tends to be one that makes one based on a record. I think in terms of tone what you will see that might be a little bit different given the changing face of FERC over the next few months is it's been very clear that the Trump administration and probably the nominees that they'll put forward are going to be people who focus very much on things like steel in the ground, infrastructure issues. So infrastructure buildout I would guess would be a very big deal. I think you'll also see a focus on things like reliability, security, diversity of fuel supply, things like that.

Monica Trauzzi: There also remains this big question of who will be chair at the commission. Kevin McIntyre's name has been widely circulated as the president's pick. Why not just make all the nominations at once? We were chatting a little bit about this before the show.

Tony Clark: Yeah, it could be a number of reasons, and of course all those things are decided behind closed doors. If I had to guess, I mean, you'd probably say that the administration was receiving a lot of calls and had a sense of urgency that it was important to get the commission back to a quorum. So they're probably being responsive to some of those concerns that the commission's been below a quorum. And apparently the two nominations that are going forward, Mr. Chatterjee and Mr. Powelson, were further along in that process. If Mr. McIntyre is the third pick, it would make sense that his might take a little bit longer. And it's nothing — in terms of conflict checks and things like that, and it's nothing against him at all in particular. It's just anyone coming from private-sector experience is going to have a longer process, working their way through all those conflict checks and things like that because you've had so many more clients over the years, where if you come from a government background like I did or Neil or Rob are in right now, it's much more simple to do those kinds of checks.

Monica Trauzzi: So we already know that Commissioner Honorable will not be seeking another term. What do these nominations mean for the current chair, Cheryl LaFleur?

Tony Clark: Well, so Cheryl's term is set for a term of office, so — in terms of her commissioner's seat. And she has indicated a number of times that she plans to continue to serve in the commission. The power of the president is to name a chair amongst the sitting commissioners, so it's widely speculated that once there are some Republicans that are put on the commission that at some point a decision will be made to make one of the Republicans the chair. But that hasn't been announced who it'll be yet, and it might all relate to the chess board that's playing out in terms of how all of these other four seats get filled.

Monica Trauzzi: And so once quorum is reached, how quickly does the engine restart in terms of making decisions and getting things going?

Tony Clark: It takes a little bit of time, several weeks at least because what'll happen is you will have each of those commissioners seeking to staff up. They have at least — historically each commissioner has five spots that they fill within their office, two administrative spots and then three technical or legal advisers. It takes time to interview those folks. A lot of them you probably bring up from staff; some you might bring from the outside. But all of that kind of personnel bureaucracy does take a little bit of time, and even once you get those people hired now you've got probably 150, 200 backlogged cases that you now have to start reading through, and it'll take time for those advisors and the commissioners to get comfortable with the cases that are on backlog. And I would suspect after a quorum is reached it'll be a few weeks after that that you'll start seeing some of these backlogged cases start to be voted on.

Monica Trauzzi: All right, really interesting stuff to watch. Thank you so much for your insight and for coming on the show.

Tony Clark: Yeah, thank you.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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