Senate ENR Hearing Slated for FERC Nominees

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

On September 9, 2020, the Senate Energy and Natural Resources (ENR) Committee announced that it would hold a hearing this Wednesday, September 16, 2020, to consider the nominations by President Trump of Allison Clements and Mark C. Christie to serve as FERC Commissioners.

The Senate ENR Committee hearing is an important first step toward the confirmation of Clements and Christie.  After holding its hearing, the Committee will hold a vote on whether to forward the nominees to the full Senate.  At that point, the Senate would need to consider their nominations and vote to confirm their appointments.  Each would then would need to be sworn in as Commissioners. 

The timing of the process moving forward remains uncertain, however, and is complicated by a number of factors.  In addition to the upcoming election, there are a limited number of days on which the Senate will be in session through the end of 2020.  During that time, most expect that Congress will prioritize consideration of an additional COVID-19 relief package and an agreement to fund the operation of the federal government past September 30.  This could complicate efforts to secure Senate floor time for the confirmation votes.

Following Commissioner McNamee’s recent departure from the Commission, FERC is now operating with only three Commissioners, which is the minimum required for a quorum.  In this context, the recusal of any Commissioner would deprive FERC of a quorum and prevent its acting on that case, while the unexpected departure of any of the remaining three Commissioners would largely prevent FERC from acting.  This could be particularly relevant in cases on remand to the Commission where Commissioner Danly, formerly FERC’s General Counsel, signed appellate briefs and would be required to recuse himself.

Finally, should Clements and Christie be confirmed and sworn in, there are not expected to be any vacancies until June 30, 2021, when Chairman Chatterjee’s term expires (Chairman Chatterjee has indicated that he plans to remain on the Commission for his full term, but also has indicated political aspirations).  Therefore, even if Biden is elected, we expect a Republican majority on the Commission until at least mid-2021 if Clements and Christie are confirmed, and neither Chatterjee nor Danly leave the Commission before then.